COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tsekouras, 2017 ONCA 290

DATE: 20170411

DOCKET: C60103

Strathy C.J.O., Weiler and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Tsekouras

Appellant

Joseph S. Wilkinson, for the appellant

Stephen Dawson, for the Crown

Heard: September 6-7, 2016

On appeal from the conviction entered on March 5, 2015 by
    Justice John deP. Wright of the Superior Court of Justice, sitting without a jury,
    with reasons reported at 2015 ONSC 1470.

Watt J.A.:

[1]

Project Dolphin was in its final few days. But some unfinished business
    remained. Searches. Seizures. Arrests. The dismantling of a drug trafficking
    enterprise.

[2]

On takedown day investigators coordinated their activities. Searches,
    seizures and arrests were to take place simultaneously.

[3]

For some time, police had suspected John Tsekouras was the person in
    charge of this organization. But their suspicions fell short of what was required
    to arrest Tsekouras. So investigators watched John Tsekouras. Very closely.
    What he did. Where he went. Whom he met. To whom he spoke.

[4]

When John Tsekouras took some documents out of one vehicle and put them
    into another, investigators changed their minds. No more surveillance. It was
    time to make an arrest.

[5]

John Tsekouras had his Blackberry in his hand. An officer approached
    Tsekouras. Gun drawn, but pointed downward. Tsekouras took the battery out of
    his Blackberry and threw the device when ordered to the ground by the officer.

[6]

The reasons for the arrest are not entirely clear. Perhaps, it was for
    attempting to obstruct justice. Or maybe it was for possession of the proceeds
    of crime. What is clear is that John Tsekouras did not remain under arrest for
    long. A senior officer arrived and directed that Tsekouras be released
    immediately and unconditionally. And so John Tsekouras went on his way.

[7]

Among the things taken from John Tsekouras incidental to his arrest were
    two Blackberry devices. Neither the one he had thrown down, nor the other one
    seized from his vehicle, were returned. Police told John Tsekouras that they
    wanted to search the Blackberry devices. And depending on what investigators
    found during their search, they told Tsekouras, the charge on which he had been
    arrested and released may be "revisited".

[8]

A few months later, police did search the contents of the Blackberry
    Tsekouras had thrown to the ground. What they found became a critical part of
    the case against Tsekouras at his trial on several preliminary and substantive
    drug offences. And the authority relied upon to harvest the contents of the
    Blackberry became a central focus of the trial and the appeal to this court
    from convictions that were entered at trial.

[9]

These reasons explain why I would dismiss John Tsekouras' appeal despite
    the investigative missteps made in the collection of this evidence adduced at
    trial.

THE BACKGROUND FACTS

[10]

The grounds of appeal advanced do not command protracted reference to
    the evidence adduced at trial. However, what is required is a review of the
    manner in which the evidentiary cornucopia located in the Blackberry was
    collected by investigators.

Project Dolphin

[11]

Project Dolphin was a joint forces investigation into drug trafficking
    in Thunder Bay and elsewhere in Canada. The police services involved included
    the Royal Canadian Mounted Police (RCMP), the Ontario Provincial Police (OPP),
    and the Thunder Bay Police Service (TBPS).

[12]

The targets of Project Dolphin included John Tsekouras, Frank Muzzi and
    Salvatore Larizza. The drugs involved were marijuana and cocaine. In the course
    of the investigation, police also seized oxycodone. The RCMP was conducting a
    joint proceeds of crime investigation.

[13]

The principal transactions with which the investigators were concerned
    were the planned purchase of two kilograms of cocaine by Tsekouras and Keith
    Ritchie from a person known as "Penguin" and 18 pounds of marijuana
    and one kilogram of cocaine left by Frank Muzzi in Salvatore Larizza's garage
    with Larizza's agreement.

The Case for the Crown

[14]

The case for the Crown at trial included evidence of:

i.

messages found on Tsekouras' Blackberry seized incident to his arrest
    and retained by police after his unconditional release without formal charge;

ii.

the
    hearsay statement of Salvatore Larizza admitted under the principled exception
    to the hearsay rule after Larizza's death prior to trial; and

iii.

the guilty
    plea and accompanying agreed statement of facts on which it was based in the
    prosecution of Frank Muzzi.

Takedown Day

[15]

The investigative plan for takedown day for Project Dolphin included the
    execution of warranted searches, the seizures of controlled substances and
    related paraphernalia and the arrests of some of the participants in the drug
    trafficking enterprise.

[16]

The investigative plan for takedown day for John Tsekouras consisted of
    surveillance of Tsekouras and his family contemporaneously with searches of
    several properties with which Tsekouras was associated. The simple fact was
    that police lacked reasonable grounds to arrest Tsekouras, although they
    suspected he was the head of the drug trafficking organization they were
    investigating.

The Arrest of John Tsekouras

[17]

When surveillance officers saw John Tsekouras remove a box of papers
    from one parked vehicle and put it into another occupied by some of his family
    members, they decided to stop him.

[18]

A police officer approached Tsekouras on foot, his gun drawn but pointed
    downward and at his side. Tsekouras had a Blackberry in his hand. As the
    officer approached, he told Tsekouras to get down on the ground. Tsekouras took
    the battery out of his Blackberry and threw it on the ground. As the officer
    took Tsekouras to the ground, Tsekouras threw his Blackberry on the ground.

[19]

The officer arrested Tsekouras. Incidental to the arrest, officers
    seized the Blackberry on the ground; a second Blackberry from Tsekouras'
    vehicle; and two amounts of cash.

[20]

A few moments later, one of the senior investigating officers arrived at
    the scene of Tsekouras' arrest. He directed that Tsekouras be released
    unconditionally. And this was done.

The Blackberry is Retained

[21]

Despite Tsekouras' unconditional release, police kept the Blackberry
    seized incident to his arrest. They also kept the second Blackberry seized on
    the same basis from Tsekouras' vehicle.

[22]

A police officer told Tsekouras that they (the police) would be keeping
    both Blackberrys to examine them. If they found any evidence during their
    examination, the officer told Tsekouras they (the police) would
    "revisit" the obstruct justice charge.

The Initial Examination of the Blackberry

[23]

An officer of the TBPS attempted to examine Tsekouras' Blackberry. The
    device was locked and password protected. The officer lacked the capacity to
    examine the Blackberry.

[24]

The Blackberry that was seized from Tsekouras vehicle was not password
    protected. A review of the contents by TBPS revealed nothing relevant for the
    purposes of the investigation. No further mention need be made of this phone.

The Request for Further Examination

[25]

The password protected Blackberry seized from Tsekouras was one of several
    electronic devices officers of TBPS had seized on takedown day. They wanted
    these devices examined, their data harvested and an analysis conducted. Since
    TBPS lacked the capacity to gain access to and analyze the data on the locked
    devices, these devices were sent to the RCMP laboratory to open the encryption
    and to recover the documents.

[26]

The RCMP laboratory required completion of a form to accompany any
    device sent to their lab for examination and analysis. Among other things, the
    form required the submitting police agency to state the legal authority for the
    examination and analysis sought. Search warrants accompanied every device but
    one  the Blackberry of John Tsekouras.

[27]

The authority relied upon to permit the examination and analysis of
    Tsekouras' Blackberry was a decision of a judge of the Superior Court of
    Justice. This authority
R. v. McTavish
(8 December 2010), CR-09-00003591-00 (Ont. S.C.J.)
 was
    said to permit examination and analysis of the contents of an electronic device
    seized as incident to an arrest. On the
Charter
application to exclude
    the evidence, it was agreed that this decision did not authorize the search.

[28]

Over the next several months, the RCMP laboratory proceeded to decrypt
    the device and harvest its contents as requested by TBPS.

The Larizza Defection

[29]

Salvatore Larizza was in a tight spot. Project Dolphin investigators had
    searched his garage. There, they found 18 pounds of marijuana and 1 kilogram of
    cocaine. He was charged with several drug offences, but released from custody.
    The conditions on which Larizza had been released included house arrest, a term
    that chafed on him.

[30]

Larizza along with his counsel approached Project Dolphin investigators.
    Larizza had decided to cooperate with the investigators. About six months after
    takedown day, he provided a
KGB
statement that implicated Muzzi in
    delivery of the drugs found in his (Larizza's) garage. The delivery occurred
    the night before takedown day.

[31]

As a result of Larizza's statement, Frank Muzzi was arrested on several
    charges arising out of the seizure made at Larizza's garage.

[32]

The Crown consented to the variation Larizza requested in his release
    terms after the
KGB
statement had been completed.

The Data Return

[33]

A month after Larizza's
KGB
statement, about seven months after
    takedown day, TBPS received the data the RCMP had harvested from Tsekouras'
    Blackberry. An officer, whose task it had been to prepare informations to
    obtain (ITOs) for the search warrants for Project Dolphin, discovered that no
    warrant had accompanied Tsekouras' Blackberry when it had been sent to the RCMP
    lab.

[34]

Analysis of the data sent to TBPS was suspended until a search warrant
    could be obtained. The purpose of the warrant was to authorize a re-search of
    the Blackberry and a second harvest of its data. But this could not be done
    because of the effect of the first search on the Blackberry.

[35]

TBPS continued their analysis of the original data from the Blackberry.
    Two months later, they completed their task.

The Reports to a Justice

[36]

About one month after the initial seizure of Tsekouras' Blackberry, an
    officer from TBPS completed a Report to a Justice in Form 5.2 as required by s.
    489.1 of the
Criminal Code
. In accordance with what was then the
    practice in Thunder Bay, the officer put the report in the Court Services mail
    slot to be sent to the offices of the justice of the peace for signature. About
    90 days later, and periodically thereafter, the officer sent applications for
    further detention as required by s. 490(2) of the
Criminal Code
. He
    forwarded these applications in the same manner by leaving them in the Court
    Services mail slot for delivery to a justice of the peace.

[37]

The officer who completed the applications for further detention under
    s. 490(2) was unaware of the notice requirement in the section. No notice was
    given to John Tsekouras on any of the three occasions on which the extensions were
    sought. The officer was also unaware that a search warrant had been issued
    later for Tsekouras' Blackberry.

[38]

About 18 months later, investigators found out that 49 Reports to a
    Justice required for Project Dolphin searches never reached a justice of the
    peace. These reports were never signed.

The Arrest of John Tsekouras

[39]

About ten months after takedown day, police arrested John Tsekouras on
    several drug charges arising out of the Project Dolphin investigation.

Frank Muzzi Pleads Guilty

[40]

Almost 18 months after takedown day, Frank Muzzi pleaded to four counts
    on an indictment including conspiracy to traffic in cocaine and in marijuana.
    One of the counts was in connection with the drugs he had left in Larizza's
    garage the night before the takedown.

[41]

The basis upon which Muzzi entered his guilty pleas included:

i.

an agreed
    statement of facts; and

ii.

a portion of Larizza's
KGB
statement that Muzzi acknowledged was correct.

[42]

Frank Muzzi received an agreed-upon sentence. Charges against his mother
    and sister were withdrawn. The Crown agreed Frank Muzzi would not be called as
    a witness for the Crown at
any
co-conspirators' trial.

The Trial Proceedings

[43]

At John Tsekouras' trial, the Crown proposed to tender evidence of the
    results of the search of Tsekouras' Blackberry, of Larizza's
KGB
statement; and of Muzzi's guilty plea and the statement of facts on which the
    guilty plea and conviction were based. Each attracted objection from trial
    counsel (who is also counsel on appeal) and was the subject of a pre-trial
    admissibility ruling.

[44]

The trial judge made several rulings as each pre-trial application
    concluded.

[45]

He rejected the trial Crown's contention that Tsekouras had no
    reasonable expectation of privacy in the contents of the Blackberry because he
    had thrown it down, thus discarding it, immediately before or on arrest.

[46]

The trial judge found the warrantless search of Tsekouras' Blackberry
    infringed s. 8 of the

Charter
, but admitted the evidence
    obtained in the search under s. 24(2). He also admitted Larizza's
KGB
statement and Muzzi's guilty plea and its factual underpinnings under the
    principled exception to the hearsay rule.

[47]

John Tsekouras did not testify or call any defence evidence in response
    to the case for the Crown.

THE GROUNDS OF APPEAL

[48]

John Tsekouras ("the appellant") advances five grounds of
    appeal. Four relate to evidentiary rulings made by the trial judge. The fifth
    challenges the reasonableness of some of the convictions.

[49]

The appellant says that the trial judge erred in admitting as evidence:

i.

the contents extracted from the appellant's Blackberry seized and
    examined without warrant;

ii.

the
    hearsay statement of Sal Larizza;

iii.

the
    statement of fact filed and relied upon in the guilty plea proceedings of Frank
    Muzzi; and

iv.

the
    hearsay statements of Larizza and Muzzi under the co-conspirators' exception to
    the hearsay rule.

[50]

The appellant also argues that the convictions entered on four counts of
    preliminary and substantive crimes relating to cocaine are unreasonable.

Ground #1: The Admissibility of the Blackberry Evidence

[51]

For all practical purposes, this ground of appeal reduces to a claim
    that the trial judge, having correctly found breaches of s. 8 of the
Charter
in the warrantless search and wrongful detention of the appellant's Blackberry,
    erred in failing to exclude the contents recovered from the Blackberry under s.
    24(2).

[52]

The circumstances in which the appellant's Blackberry was seized,
    detained and its contents harvested have already been canvassed. No useful
    purpose would be served by a further recital of them. However, to provide some
    background for the arguments advanced, it is worthwhile to record the essential
    features of the trial judge's s. 24(2) analysis before turning to the attacks marshalled
    against them.

The Ruling of the Trial Judge

[53]

The trial judge's analysis under s. 24(2) was premised on three
    discrete, but related breaches of s. 8 of the
Charter
:

i.

the warrantless search of the Blackberry;

ii.

the
    unauthorized seizure of the contents of the Blackberry; and

iii.

the
    unlawful detention of the Blackberry in breach of ss. 489.1 and 490 of the
Criminal
    Code
.

[54]

In his admissibility analysis under s. 24(2), the trial judge considered
    the three lines of inquiry mandated by
R. v. Grant
, 2009 SCC 32,
    [2009] 2 S.C.R. 353. He characterized the first line of inquiry  the
    seriousness of the breach  as a potential "tiebreaker in what is
    essentially a contest between [the second and third lines of inquiry]".

[55]

In his assessment of the seriousness of the
Charter

infringement,
    the trial judge found that investigators did not ignore the necessity for
    warrants in this major crime investigation. They made a mistake, however, in
    connection with the appellant's Blackberry and, on realizing their mistake,
    immediately sought and obtained a warrant. Similarly, the failure to obtain
    orders under ss. 489.1 and 490 was not the fault of Project Dolphin
    investigators, rather it was "ultimately the fault of another branch of
    the justice system". The failure to obtain the orders arose from
    carelessness, not bad faith or recklessness.

[56]

The trial judge acknowledged that the impact of the breach on the
Charter
-protected
    interests of the appellant was significant in light of the enhanced privacy
    interest associated with such devices. That said, the trial judge concluded
    that the impact of the breach on the
Charter
-protected interests of
    the appellant was mitigated by several factors:

i.

the
    uncertain state of the law about the need for a warrant to search cellphones at
    the time the search was conducted;

ii.

the fact
    that the appellant was advised when released unconditionally that his phone
    might be searched but took no steps to retrieve it;

iii.

the fact that a
    warrant was subsequently obtained, which indicated not only that it would have
    been granted had it been sought earlier, but also that it belied any
    deliberate, reckless or negligent conduct on behalf of anyone to violate the
Charter
;
    and

iv.

the fact that the
    officer who sent the Blackberry to the RCMP to extract the data made reasonable
    inquiries about search authority and was provided with a response that was
    wrong through carelessness rather than unacceptable negligence or recklessness.

[57]

The trial judge concluded that the third line of inquiry under
Grant
favoured admission of the evidence which consisted of the actual messages sent
    and received on the appellant's Blackberry. This was real evidence of a high
    degree of reliability, which was crucial to the case for the Crown.

[58]

In the final analysis, the trial judge was satisfied that the
Grant

lines of inquiry favoured admissibility of the messages recovered from the
    appellant's Blackberry.

The Arguments on Appeal

[59]

The appellant takes no issue with the findings of constitutional
    infringement made by the trial judge. A warrantless search of the Blackberry
    and seizure of its data and the unlawful detention of the Blackberry, which
    amounted to a further breach of s. 8. But, the appellant says, the trial judge
    erred in his section 24(2) analysis. Properly conducted, that analysis would
    have resulted in exclusion of the Blackberry evidence, the result which should
    follow here.

[60]

The appellant says that the trial judge erred in his overall approach to
    s. 24(2). The first line of inquiry cannot be fairly described as a
    "tiebreaker", the role assigned to it by the trial judge, between the
    second and third lines of inquiry. The first two lines of inquiry favour
    exclusion; the third, admission of the evidence. But all are of equal
    importance and are to be balanced together. What is more, the trial judge failed
    to properly characterize the seriousness of the
Charter
violation and
    considered factors relevant to the seriousness of the
Charter
-infringing
    state conduct when assessing the impact of the breach on the
Charter
-protected
    interests of the appellant.

[61]

The appellant also alleges the trial judge made several specific errors
    in his s. 24(2) analysis. He erred in characterizing the Blackberry evidence as
    "crucial" for the Crown's case. The Crown had available to it
viva
    voce
evidence from two co-conspirators, one awaiting trial in separate
    proceedings (Ritchie) and another (Muzzi) already convicted and sentenced on
    the basis of a joint submission. In addition, the trial judge was wrong in
    minimizing the seriousness of the
Charter
breach on the basis that the
    law on cellphone searches was in a state of flux at the time the Blackberry was
    searched. Investigators knew that a search warrant was required. A warrant
    accompanied every device except the appellant's Blackberry. Their reliance on
R.
    v. McTavish
was unreasonable and reflected bad faith in the face of
    obvious knowledge of the need for a warrant. The trial judge committed a
    further error in finding comfort from the fact that there were grounds to get a
    warrant. The existence of grounds  while relevant to the seriousness of the
    state conduct  does not affect the significance of the invasion of the
    appellants privacy rights.

[62]

In connection with the reporting requirements of s. 489.1 and those of
    s. 490 concerning retention of seized items, the appellant says that the trial
    judge made further errors:

i.

in finding good faith in attempted compliance with ss. 489.1 and 490 by
    simply leaving the Reports to a Justice in a Court Services mail slot and
    failing to follow up about receipt;

ii.

in failing to find that non-compliance with the notice requirements of
    s. 490(2) was based on plain ignorance of the statutory requirements, or at
    best, unacceptable negligence; and

iii.

in reversing the burden imposed by s. 490(2) by considering as mitigation
    of the failure to give notice, the appellant's failure to seek the return of
    his Blackberry.

[63]

According to the appellant, a proper application of the lines of inquiry
    mandated by
Grant
would yield a result contrary to the ruling
    admitting the evidence made at trial.

[64]

The violations were serious. The arrest was arbitrary, thus could not
    ground a lawful seizure of the Blackberry incident to arrest, much less a
    subsequent search, intentionally done without a warrant. The search could not
    comply with the requirements set out by the Supreme Court of Canada for
    searches of cell phones incident to arrest in
R. v. Fearon
, 2014 SCC
    77, [2014] 3 S.C.R. 621.

[65]

The appellant says the unconstitutional conduct of the authorities had a
    significant impact on his
Charter
-protected interests. He had a high
    expectation of privacy in the information contained in the Blackberry, an
    interest that continued without proper judicial supervision for a period of 10
    months. This detention was the result of serious systemic failures on the part
    of TBPS investigators, failures that were not mitigated by the belated attempt
    to regularize unconstitutional conduct by the subsequent issue of a search
    warrant.

[66]

Exclusion of this evidence, the appellant continues, requires that
    acquittals be substituted for the convictions entered at trial. Without the
    evidence provided by search of the Blackberry, the convictions would be
    unreasonable. To order a new trial would permit the Crown to reverse a tactical
    decision it made at the first trial and to attempt to establish guilt on an
    evidentiary basis available but not pursued at first instance. The prevailing
    jurisprudence does not permit the Crown to do so.

[67]

The respondent does not take issue with the findings of constitutional
    infringement made by the trial judge, but resists any suggestion of legal error
    or palpable or overriding errors of fact in the trial judge's s. 24(2) analysis,
    or in his conclusion to admit the evidence harvested from the appellant's
    Blackberry.

[68]

At the outset, the respondent reminds us that we must begin from a
    stance of deference to the findings of fact made by the trial judge, absent
    palpable and overriding error in connection with those findings. We should
    approach the appellant's complaints with caution because, in the main, they are
    grounded on a set of facts that the appellant wishes the trial judge had found,
    rather than those that he did find.

[69]

The respondent says that the trial judge did not treat any single factor
    or line of inquiry under
Grant
as a first among equals or as
    dispositive of the issue of admissibility. What is more, no overarching rule
    mandates how to balance the lines of inquiry or
Grant
factors. The
    trial judge's reference to the absence of an automatic rule of exclusion upon
    proof of constitutional infringement reflects existing jurisprudence and does
    not constitute error. His misplace of the seriousness of police misconduct when
    considering the impact of that misconduct on the
Charter
-protected
    interests of the appellant is at best a venial error that would not affect the
    ultimate conclusion.

[70]

According to the respondent, the trial judge's characterization of the
    law relating to the search of cellphones as uncertain was accurate. At the time
    of trial, neither this court nor the Supreme Court of Canada had issued any
    definitive pronouncement describing the legal authority required to search a
    cellphone or similar electronic device. It follows, the respondent continues,
    that the failure to obtain a warrant could properly be attributed to legal
    uncertainty, rather than an intentional, reckless or negligent disregard for
    the appellant's
Charter
rights.

[71]

The respondent submits that the existence of grounds to obtain a search
    warrant, as demonstrated by the warrant subsequently issued, was properly
    considered a factor that mitigated the seriousness of the police conduct in
    this case.

[72]

As for the breaches of ss. 489.1 and 490, the respondent takes issue
    with the appellant's submission that the trial judge imposed an obligation on
    the appellant to apply for the return of his Blackberry. Fairly read, the
    reasons of the trial judge do not support the appellant's claim. Rather, his
    reference to the appellant not seeking the return of his Blackberry was just
    one factor in the totality of the circumstances that the trial judge
    considered. The trial judge properly characterized the nature of the breach and
    its impact on the admissibility determination.

[73]

The respondent contends that the trial judge properly described the
    evidence from the Blackberry as "crucial" to the case for the Crown.
    It was not rendered less crucial because of the existence of compellable
    co-conspirators. The problems associated with calling such witnesses are
    notorious.

[74]

In the end, the respondent says, the trial judge got it right. This
    evidence was properly admitted at trial.

The Governing Principles

[75]

Section 24(2) of the
Charter
is an admissibility rule. It
    determines whether evidence obtained in a constitutionally impermissible manner
    will make its way into a criminal trial for the use of the trier of fact or be
    denied entry. The section not only recognizes that the admission of
    constitutionally tainted evidence and its use to demonstrate guilt may bring
    the administration of justice into disrepute, but also that exclusion of the
    evidence can equally bring the administration of justice into disrepute:
R.
    v. McGuffie
, 2016 ONCA 365, 336 C.C.C. (3d) 486, at para. 60.

[76]

We determine the admissibility of constitutionally tainted evidence
    under s. 24(2) by considering all the circumstances and pursuing three lines of
    inquiry. We examine:

·

the seriousness of the
Charter
-infringing state conduct;

·

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

·

society's interest in an adjudication on the merits.

See,
Grant
, at paras. 71-86.

[77]

In this case, the parties occupy common ground about the fact of
    constitutional infringement and that evidence harvested from the appellant's
    Blackberry was obtained in a constitutionally impermissible manner. But they
    part company on the seriousness of the

Charter
-infringing state
    conduct; the impact of that conduct on the appellant's
Charter
-protected
    interests; and on the result that should follow from the pursuit of those lines
    of inquiry in this case.

[78]

The three lines of inquiry to be followed under
Grant
entail
    not only findings of fact, but also the weighing of various interests frequently
    at odds with one another:
McGuffie
, at para. 64. The trial judge's
    role in the s. 24(2) application made at trial was to balance the assessments
    under each of the three
Grant
lines of inquiry to determine whether,
    considering all the circumstances, admission of the evidence would bring the
    administration of justice into disrepute:
Grant
, at para. 71.

[79]

The trial judge found two infringements of s. 8 of the
Charter
,
    one of which yielded evidence that the Crown tendered for admission at trial.
    The infringements were:

i.

the non-warranted search of the appellant's Blackberry and harvesting of
    its contents for use as evidence; and

ii.

the detention of the Blackberry without the supervision required under
    s. 489.1 and notice to the appellant under s. 490(2).

[80]

Before turning to the principles that govern the
Grant
lines of
    inquiry and the standard of review that we are to apply when invited to
    scrutinize a trial judge's application of them, it is worthwhile to begin with
    a brief examination of the authority to conduct a search of a Blackberry or
    similar electronic device and the obligations of seizing authorities to ensure
    post-seizure supervision of detained items.

The Authority to Search the Blackberry

[81]

I discuss first, the authority to search a Blackberry or similar device
    seized incident to arrest.

[82]

The appellant's initial arrest and the seizure of his Blackberry
    incident to arrest took place in 2011.The subsequent extraction of its data
    took place in 2011 and 2012. The trial judge's s. 24(2) ruling was released on
    October 20, 2014, nearly two months before the Supreme Court of Canada released
    its decision in
Fearon

about the availability of the power to
    search incident to arrest as an authority to permit the search of cellphones
    and similar devices taken from a suspect.

[83]

Several points of significance to the trial judge's determination of the
    seriousness of the
Charter
-infringing state conduct and its impact on
    the appellant's
Charter
-protected interests emerge from the decision
    in
Fearon
.

[84]

First, the
Fearon
court pointed out that in 2014 Canadian
    courts had not provided a consistent response to the question of whether the
    power of search incident to arrest permitted the search of cellphones and
    similar devices found on the suspect. At least four approaches had emerged:
Fearon
,
    at para. 2. If the law lacked consistency in 2014, it is a reasonable inference
    that it was equally unsettled, if not more so, in 2011.

[85]

Second, a cellphone may be searched incident to arrest, provided what is
    searched and how the search is conducted are strictly incidental to the arrest
    and the police keep detailed notes of what has been searched and why:
Fearon
,
    at para. 4.

[86]

Third, the power to search incident to arrest is a focused power
    assigned to police so that they can pursue their investigations promptly upon
    arrest. But the authority is not without its limits. The search must be truly
    incidental to the arrest, that is to say, exercised in the pursuit of a valid
    purpose related to the proper administration of justice:
Fearon
, at
    paras. 16 and 21.

[87]

Fourth, a search is properly incidental to arrest when the police
    attempt to achieve some valid purpose connected to the arrest, such as
    protecting evidence from destruction by the arrested person or others, or discovering
    evidence. If the purpose of the search is the discovery of evidence, there must
    be some reasonable prospect of finding evidence of the offence for which the
    accused is being arrested:
Fearon
, at para. 22;
R. v. Caslake
,
    [1998] 1 S.C.R. 51, at paras. 19-25. What matters is that there be a link
    between the location and purpose of the search and the grounds for the arrest:
Fearon
,
    at para. 25;
R. v. Nolet
, 2010 SCC 24, [2010] 1 S.C.R. 851, at para.
    49.

[88]

The
Fearon
court recognized that some modification of the
    common law search incident to arrest power was necessary when the object to be
    searched was a cellphone or similar device. After all, searches of these
    devices have the potential to be a much more significant invasion of privacy
    than the typical search incident to arrest of pockets, purses, briefcases and
    motor vehicles:
Fearon
, at para. 58. Something more than the
    requirements of a lawful arrest and a search that is at once truly incidental
    to the arrest and reasonably conducted is essential to further protect a
    suspect against the risk of wholesale invasion of privacy:
Fearon
, at
    para. 58.

[89]

The
Fearon
court made it clear that nothing short of strict
    adherence to the requirement that a search incident to arrest be truly
    incidental to the arrest would be tolerated where the object to be searched was
    a cellphone or similar device. The searches must be done promptly to
    effectively serve their purpose, such as the discovery of evidence:
Fearon
,
    at para. 75. To give effect to this approach, the court modified the general
    rules applicable to searches incident to arrest in three ways.

[90]

First, the scope of the search. The scope of the search of a cellphone
    or similar device incident to arrest must be tailored to the purpose for which
    it may lawfully be conducted. Not only the nature, but also the extent of the
    search performed on the cellphone or similar device must be truly incidental to
    the particular arrest for the particular offence. And so it is, at least as a
    general rule, that only recently sent or drafted emails, texts, photos and the
    call log may be examined. The reason is simple: only those sorts of items will
    have the necessary degree of connectedness to the purposes for which prompt
    examination of the device is authorized:
Fearon
, at para. 76.
    Investigators must be able to explain, within the limited purposes of search
    incident to arrest or with reference to some other valid purpose, what they
    searched and why they did so:
Caslake
, at para. 25.

[91]

From this modification of the general rule relating to searches incident
    to arrest, it necessarily follows that this search authority is not a blank
    cheque for investigators to forage in the device unbounded. For example, to
    search or download its entire contents:
Fearon
, at para. 78.

[92]

Second, searches to discover evidence. Cellphone searches incident to
    arrest are not routinely permitted simply for the purpose of discovering
    additional evidence. A cellphone or similar device search incident to arrest
    for the purpose of discovering evidence is only a valid law enforcement
    objective when the investigation will be stymied or significantly hampered
    without the ability to search the device incident to arrest. Investigators must
    be able to explain why it was not practical, in all the circumstances of the
    investigation, to postpone the search until they could obtain a warrant:
Fearon
,
    at para. 80.

[93]

Third, a record of the search. Officers executing the search must make
    detailed notes of what they have examined on the device and how it was
    searched. The applications searched, the extent and time of the search. Its
    purpose and duration. See,
Fearon
, at para. 82.

[94]

From
Fearon
we also learn that police are not entitled to
    navigate through unsettled areas of the law by following the least burdensome
    route. As a general rule, faced with genuine uncertainty, police should err on
    the side of caution by settling on a course of action that is more, rather than
    less respectful of the accused's privacy rights:
Fearon
, at para. 94.

Post-Seizure Supervision

[95]

Section 489.1(1) applies to seizures made by peace officers as a result
    of searches incident to arrest:
R. v. Backhouse
(2005), 194 C.C.C.
    (3d) 1 (Ont. C.A.), at paras. 112-113. Where the thing seized is not being
    returned to the person lawfully entitled to possess it, s. 489.1(1)(b)(ii)
    requires the seizing officer, as soon as it is practicable to do so, to report
    to a justice that she or he has seized something and is detaining it to be
    dealt with by the justice under s. 490(1).

[96]

The
Report to a Justice
must be in a statutory form  Form 5.2.
    This form must describe the authority under which the seizure was made; the
    thing that was seized; and where, how or where applicable by whom it is being
    detained. The officer who files the report must date and sign it.

[97]

The reporting requirement of s. 489.1(1)(b)(ii) provides a link to s.
    490(1) and ensures long-term post-seizure supervision of the things seized by a
    judicial officer:
R. v. Garcia-Machado
, 2015 ONCA 569, 327 C.C.C. (3d)
    215, at paras. 15-16;
Backhouse
, at para. 112.

[98]

Failure to file a
Report to a Justice
in Form 5.2 means that no
    post-seizure supervision of the thing seized will take place:
Garcia-Machado
,
    at para. 16. But failure to file a
Report to a Justice
as soon as
    practicable after a thing has been seized also has a constitutional dimension:
    the continued detention constitutes a breach of s. 8 of the
Charter
:
Garcia-Machado
,
    at paras. 44-48.

[99]

Neither section 489.1 nor Form 5.2 has anything to say about how the
    report is to be provided to a justice. The
Report
requires the signature
    of the peace officer who submits it, but does not require or provide space for
    a justice to sign the report to acknowledge its receipt, endorse a disposition
    or advise the submitting officer of either event.

[100]

Section 490
    governs extended detention of seized items. Section 490(2) requires notice to
    the person from whom a thing has been seized if the thing has been detained
    more than three months from the date of seizure. Neither the section nor any
    other
Code

provision prescribes a form for the notice, although
    s. 490(2)(a) describes the procedure as a "summary application". But
    one thing is clear: while the provision provides the opportunity, no obligation
    is imposed upon the person from whom the thing was seized to take any steps for
    its recovery.

[101]

In
Garcia-Machado
,
    this court left for another day whether any breach of s. 490, even one that had
    no real impact on the judicial oversight contemplated by the provision, would
    amount to a breach of s. 8 of the
Charter
:
Garcia-Machado
, at
    para. 55.

The
Grant
Lines of Inquiry

[102]

Section 24(2) of
    the
Charter
requires that the admissibility of
    constitutionally-tainted evidence be determined on the basis of all the
    circumstances. The test, broad and imprecise (
Grant
, at para. 60),
    requires a trial judge to assess and balance the effect of admitting the
    evidence on societal confidence in the justice system. The focus of s. 24(2) is
    long-term, prospective and societal:
Grant
, at paras. 67-71.

[103]

The
    admissibility determination under s. 24(2) involves a balancing of assessments
    under each of the three lines of inquiry:

i.

the
    seriousness of the
Charter
-infringing state conduct;

ii.

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

iii.

society's interest in
    the adjudication of the case on its merits.

See,
Grant
, at para. 71.

[104]

The first two
    inquiries operate in tandem. Both pull toward exclusion of
    constitutionally-tainted evidence. When the state's
Charter
-infringing
    conduct becomes more serious and the impact of it on the
Charter
-protected
    interests of the accused becomes greater, the synergistic effect of their
    combination strengthens the pull for and towards exclusion:
McGuffie
,
    at para. 62.

[105]

The third line
    of inquiry  society's interest in the adjudication of the merits  is
    contraindicative  pulls towards the inclusion or admission of the evidence.
    This is a pull that reaches its zenith when the evidence tendered for admission
    is at once reliable and crucial to the case for the Crown:
McGuffie
,
    at para. 62. See also,
R. v. Harrison
, 2009 SCC 34, [2009] 2 S.C.R.
    494, at paras. 33-34.

[106]

These lines of
    inquiry under
Grant

involve fact-finding and the assignment of
    weight to various interests often at odds with each other. There is no overarching
    principle that mandates how this balance is to be achieved:
Grant
, at
    para. 86;
R. v. Patterson
, 2017 SCC 15, at para. 54;
R. v. Côté
,
    2011 SCC 46, [2011] 3 S.C.R. 215, at para. 48;
R. v. Manchulenko
, 2013
    ONCA 543, 301 C.C.C. (3d) 182, at paras. 89-93.

[107]

A trial judge's
    decision to admit or exclude evidence obtained in a constitutionally flawed
    manner is entitled to deference on appeal, absent an error in principle, a
    palpable and overriding error of fact or a determination that is unreasonable:
McGuffie
,
    at para. 64;
Grant
, at paras. 86, 127;
R. v. Cole
, 2012 SCC
    53, [2012] 3 S.C.R. 34, at para. 82.

[108]

The first line
    of inquiry under
Grant

requires a trial judge to evaluate the
    seriousness of the
Charter
-infringing state conduct. This conduct will
    vary in its seriousness, from inadvertent or minor, on the one hand, to wilful
    or reckless, on the other. The same may be said about the effect of admitting
    the evidence on the repute of the administration of justice:
Grant
, at
    para. 74.

[109]

Various factors
    may attenuate or exacerbate the seriousness of the
Charter
-infringing
    state conduct. Extenuating factors, such as the need to prevent the
    disappearance of evidence, or good faith on the part of investigators, may
    attenuate the seriousness of police conduct that results in a
Charter
breach. On the other hand, no rewards are given for ignorance of
Charter
standards. Negligence or wilful blindness is not the equivalent of good faith:
Grant
,
    at para. 75. Nor can good faith be based on an unreasonable error or ignorance
    about the officers scope of authority:
R. v. Buhay
, 2003 SCC 30,
    [2003] 1 S.C.R. 631, at para. 59;
R. v. Mann
, 2004 SCC 52, [2004] 3
    S.C.R. 59, at para. 55. The more deliberate the conduct of the police in breach
    of the
Charter
, the more likely this line of inquiry will favour
    exclusion:
Grant
, at para. 75.

[110]

The second line
    of inquiry requires an examination of the extent to which the
Charter
breach actually interfered with or undermined the interests protected by the
    right infringed. Again here there is a spectrum: fleeting and technical to
    profoundly intrusive. The more serious the impact, the greater the risk that
    admission of the evidence will bring the administration of justice into
    disrepute by signalling to the public that the high-sounding nature of the
    rights is belied by their feeble evidentiary impact in proceedings against the
    person whose rights have been trampled:
Grant
, at para. 76.

[111]

To determine the
    seriousness of the infringement under this line of inquiry, a court must look
    to the interests engaged by the right infringed and examine the extent to which
    the violation actually impacted on those interests:
Grant
, at para.
    77. An unreasonable search that intrudes upon an area in which an individual
    reasonably enjoys a high expectation of privacy or that demeans a person's
    dignity is more seriousness than one that does not:
Grant
, at para.
    78.

[112]

In assessing the
    actual impact of a breach on a
Charter
-protected interest of an
    accused, discoverability retains a useful role. The more likely that the
    evidence would have been obtained without the
Charter
-infringing state
    conduct, the lesser may be the impact of that
Charter

-infringing
    conduct on the underlying interests protected by the
Charter
right.
    The converse is also true:
Grant
, at para. 122. See also,
Cole
,
    at paras. 93 and 97. Of course discoverability is a double edged sword. It may
    signal that the breach of the accuseds right was less serious. But it also
    renders the state conduct more egregious as the evidence was discoverable
    without breaching the accuseds
Charter
rights:
R. v. Bains
,
    2014 BCCA 43, 306 C.C.C. (3d) 222, at para. 51;
Côté
, 2011 SCC 46,
    [2011] S.C.R. 215, at paras. 70-72.

[113]

A final point concerns the evidentiary underpinnings for circumstances
    said to mitigate the seriousness of the
Charter
-infringing state
    conduct or its impact on the
Charter
-protected interests of the
    accused. These factual findings of mitigation must be soundly grounded in the
    evidence, not based on speculation:
R. v. Pino
, 2016 ONCA 389, 337
    C.C.C. (3d) 402, at paras. 95-98.

The Principles Applied

[114]

As I will
    explain, I would not give effect to this ground of appeal. In my view, the
    trial judge did not err in his overall approach to the admissibility issue
    under s. 24(2) or in connection with the specific flaws identified by the
    appellant.

[115]

At the outset,
    it is essential to keep in mind that the admissibility inquiry in which the
    trial judge engaged under s. 24(2) of the
Charter
includes not only
    findings of fact, but also the weighing of various interests frequently at odds
    with one another. These findings of fact, assessments of competing interests
    and characterizations of the nature and extent of any breach are entitled to
    deference absent palpable and overriding errors of fact, errors of law or
    principle or plainly unreasonable conclusions.

[116]

Second, while it
    was necessary for the trial judge to consider the three lines of inquiry
    demanded by
Grant
, no overarching principle dictates the manner or
    order in which these lines of inquiry are to be considered. Further, the trial
    judge's ultimate assessment need not be mathematically precise. The overarching
    principle is that the trial judge must take into account
all
the
    circumstances. This trial judge did that.

[117]

Third, I do not
    read the trial judge's observation about the first line of inquiry being a
    "tie breaker" as reflecting error in assigning that line of inquiry a
    place of superordinance in the
Grant
analysis. Read in its appropriate
    context, the trial judge was simply pointing out that when one factor favours
    exclusion (line of inquiry #2) and another admission (line of inquiry #3), the
    outcome of the remaining line of inquiry is apt (although not in every
    circumstance) to dictate the ultimate result of an analysis of an issue that is
    to be decided on a basis of probabilities.

[118]

Fourth, the
    trial judge did not err in considering the uncertain state of the law as a
    relevant factor in his s. 24(2) analysis. Recall that in 2014 the Supreme Court
    of Canada described the inconsistencies among Canadian courts about whether a search
    of a cellphone was permitted as part of a search incident to arrest, or whether
    some further authority, like a search warrant, was required. In such a state of
    uncertainty, it scarcely follows that it was unreasonable or indicative of bad
    faith for investigators to rely on a judicial precedent said to support such a
    search.

[119]

Further, it was
    not error for the trial judge to conclude from the fact that a search warrant was
    later obtained that had one been sought immediately after seizure of the
    Blackberry, it would likely have been granted, the contents harvested and
    evidence obtained. Discoverability has a place in the
Grant
analysis. That
    the evidence was discovered without a warrant was not the product of deliberate
Charter
-infringing state conduct.

[120]

The trial judge
    also found an infringement of s. 8 of the
Charter
because police had
    failed to file any
Report to a Justice
in Form 5.2 and failed to
    notify the appellant of their summary application under s. 490.

[121]

In this case,
    unlike in
Garcia-Machado
, the police did complete on several
    occasions a
Report to a Justice
. In accordance with what was then the
    practice, they left the reports for delivery to a justice of the peace.
    Delivery never happened, but not for dint of effort. This case is different
    from
Garcia-Machado
, which was not available for the trial judge to
    consider.

Ground #2: The Hearsay Statement of Salvatore Larizza

[122]

The second ground of appeal challenges the decision of the trial judge
    to admit as evidence a sworn videotaped statement of Sal Larizza, a former
    accused who had been separately charged but died before trial.

[123]

A brief description of the background, the circumstances under which the
    statement came to be taken and the ruling of the trial judge for admitting it
    as evidence will serve as a useful framework for the discussion that follows.

The Essential Background

[124]

On takedown day,
    police executed a search warrant at Sal Larizza's home. In a box in his garage,
    officers found 1 kilogram of cocaine and 18 pounds of marijuana. Police
    suspected, but could not prove, that the drugs had been stashed there by Muzzi
    and Ritchie. Larizza was arrested. Neither Muzzi nor Ritchie were charged.

[125]

Sal Larizza
    remained in custody for about a week after his arrest until he was released on
    bail. The terms of his release required him to live at his sister's home where
    he was to occupy a single room together with his young daughter. He was also
    subject to house arrest.

[126]

A few days after
    his arrest, Sal Larizza was interviewed by police. The interview was audio and
    videotaped. Larizza denied knowing about how the drugs came to be found in his
    garage at home. He said that his home was not a stash house. He claimed not to
    know Muzzi well.

[127]

There was no
    formal motion to admit Larizza's post-arrest statement on the
voir dire
to determine the admissibility of his later
KGB
statement. In the
    interests of trial fairness, the trial judge admitted the earlier statement. It
    was relevant to both threshold and ultimate reliability.

The
KGB
Statement

[128]

About three
    months after his arrest, Sal Larizza asked the Crown to consent to variations
    in his judicial interim release order. Larizza wanted a deletion of the house
    arrest term and a change in the residence condition. Discussions took place
    between Larizza, his lawyer and the lead investigator about Larizza providing a
    statement explaining how the marijuana and cocaine got into his garage where
    they were found on takedown day.

[129]

Sal Larizza
    agreed to provide a statement to police.

[130]

Larizza's
    statement was audio and video recorded. It was given under oath. Larizza was
    warned about the consequences of making a false statement. He was told that the
    statement would be disclosed to those facing trial. The statement lasted 1 hour
    and 20 minutes.

[131]

In his
KGB
statement, Sal Larizza admitted that he had provided a stash house for Muzzi
    and another man. Both had a key to his (Larizza's) house and could come and go
    as they pleased. Muzzi and another man showed up in Muzzi's truck the evening
    before takedown day. They asked whether they could store some marijuana in
    Larizza's garage overnight. Muzzi promised he would remove the marijuana early
    the next morning.

[132]

Sal Larizza
    denied knowledge of any cocaine being part of the delivery the night prior to
    takedown day. Police noticed indicia of a cocaine-cutting operation in
    Larizza's home.

The Death of Sal Larizza

[133]

Sal Larizza died
    prior to trial. Somebody killed him in his own home.

The Ruling of the Trial Judge

[134]

The case for
    admissibility of Larizza's
KGB
statement was advanced under the
    principled exception to the hearsay rule.

[135]

Necessity was
    uncontroversial. Larizza was dead.

[136]

The trial judge
    considered the cumulative effect of several factors in concluding that
    threshold reliability had been established:

i.

the
    statement was audio and video recorded;

ii.

the
    statement was under oath;

iii.

Larizza
    was warned about the consequences of providing false information;

iv.

the events
    described in the statement were within Larizza's direct knowledge;

v.

the
    narrative provided was in Larizza's own words, not in response to leading or
    suggestive questioning;

vi.

the initiative
    for the statement originated with Larizza, not the police or the Crown;

vii.

Larizza had legal
    advice before making the statement;

viii.

the statement was confirmed by
    real evidence in some of its material aspects;

ix.

the statement
    was strikingly similar in content to what Muzzi admitted to be his involvement
    when he pleaded guilty to various charges;

x.

Larizza
    repeated crucial information a number of times; and

xi.

What Larizza
    appeared to regard as his interest in co-operating with the authorities.

[137]

The trial judge also considered Larizzas previous statement to the
    police as a prior inconsistent statement.

[138]

The trial judge admitted Larizza's
KGB
statement. It does not
    appear that he was asked to exclude it on the basis that its prejudicial effect
    exceeded its probative value.
[1]

The Arguments on Appeal

[139]

The appellant contests the trial judge's admissibility ruling on two
    grounds. He says that the trial judge did not provide adequate reasons for his
    decision, thus rendering it impervious to appellate review. He also argues that
    what the trial judge did say reveals that he considered irrelevant factors and
    failed to consider relevant factors in concluding that the requirement of
    threshold reliability had been met.

[140]

On the inadequacy of reasons, the appellant says that the trial judge
    devoted the majority of his reasons to a rote repetition of the governing legal
    principles, but offered no real insight into why he found threshold reliability
    established and the statement admissible. The most important consideration here
    was the inability of the appellant to cross-examine the declarant. Yet the
    trial judge failed to consider whether or how the circumstances in which the
    statement was made could and did function as an adequate substitute or proxy
    for the inability to cross-examine.

[141]

The appellant submits that in reaching his conclusion on reliability,
    the trial judge failed to consider that Larizza's motive in providing the
    statement was to obtain a significant bail variation and that the
KGB

statement was fundamentally at odds with his post-arrest statement  given five
    months earlier  in which he claimed no knowledge of events he described in
    much detail later.

[142]

In addition to his failure to consider relevant factors, the appellant
    continues, the trial judge assigned a place in his analysis to factors of which
    no account should have been taken. That Larizza took the initiative, consulted
    a lawyer and repeated crucial information several times. And that the statement
    was strikingly similar to what Muzzi admitted on his guilty plea. The trial
    judge also failed to recognize the double hearsay aspect of the statement when
    Larizza repeated what he claimed Muzzi said when he (Muzzi) had asked to store
    the drugs in Larizza's garage.

[143]

The respondent supports the admissibility ruling of the trial judge. The
    trial judge's reasons are adequate to permit meaningful appellate review. They
    reveal no consideration of irrelevant factors or failure to consider relevant
    factors. The case for admissibility was overwhelming.

[144]

The respondent reminds us that in considering this alleged error, we are
    to begin from a stance of deference, absent an error in principle or in law, a
    palpable and overriding error of fact or a plainly unreasonable conclusion.
    Deference should not be shunted aside here.

[145]

The respondent says that the trial judge's ruling reflects governing
    principles. Inability to cross-examine a hearsay declarant is not dispositive
    of an application to admit a hearsay statement. This inability may be overcome
    by circumstantial guarantees of trustworthiness arising out of the
    circumstances in which the statement came about. In this case, the trial judge
    took into account relevant factors, including that essential parts of Larizza's
    narrative were confirmed by other evidence, such as Muzzi's guilty plea. He did
    not consider irrelevant factors, at least none that marred the essential
    features of his analysis that provided an appropriate foundation for meaningful
    appellate review.

The Governing Principles

[146]

At the outset,
    factual findings that underpin a finding of admissibility are entitled to
    deference absent palpable and overriding error:
R. v. Youvarajah
, 2013
    SCC 41, [2013] 2 S.C.R. 720, at para. 31;
R. v. Chretien
, 2014 ONCA
    403, 309 C.C.C. (3d) 418, at para. 44.

[147]

The central
    underlying concern with the admission of hearsay evidence is the inability of
    the party opposite to cross-examine the declarant on the truth and accuracy of
    the reported statement, to test his or her perception, memory, narration and
    sincerity:, at paras. 18-19;
R. v. Khelawon
, 2006 SCC 57, [2006] 2
    S.C.R. 787, at para. 2.

[148]

When hearsay
    evidence is tendered for admission under the principled exception to the hearsay
    rule and no issue arises about the necessity requirement because of the death
    of the declarant, the task of the trial judge is to determine whether the
    reliability requirement has been met. Reliability, the current equivalent of
    Wigmore's

circumstantial guarantee of trustworthiness" or
    probability of trustworthiness, operates as a substitute or surrogate for the
    more traditional mechanism for testing reliability  cross-examination.
    Reliability intervenes to ensure that only hearsay statements worthy of
    consideration by a trier of fact get before it.

[149]

It is well
    established that the reliability requirement under the principled exception to
    the hearsay rule refers to threshold, not ultimate reliability. After all, the
    ultimate reliability of any piece of evidence received in a criminal trial is
    for the trier of fact to determine in the context of all the evidence adduced
    at trial:
Khelowan
, at paras. 2-3, 50;
Youvarajah
, at para.
    23.

[150]

Since the
    underlying concern when hearsay evidence is proposed for admission is the
    opponent's ability to test it by traditional means, the reliability requirement
    under the principled approach seeks to identify those cases in which this
    difficulty is sufficiently expunged to justify receiving the evidence by
    exception to the general exclusionary rule:
Khelowan
, at para. 61.

[151]

A proponent who
    seeks the reception of hearsay evidence under the principled exception usually
    tries to satisfy the reliability requirement in either of two ways. One way is
    to show that no real concern exists about the truth of the statement because of
    the circumstances in which the statement came about. Another way of satisfying
    the reliability requirement is to demonstrate that no real concern arises from
    the introduction of the statement in hearsay form because, in the
    circumstances, the opponent can sufficiently test its truth and accuracy:
Khelowan
,
    at paras. 62-63. See also,
R. v. Blackman
, 2008 SCC 37, [2008] 2
    S.C.R. 298, at para. 35.

[152]

These two
    methods of satisfying the reliability requirement are not mutually exclusive:
Khelowan
,
    at para. 65;
Blackman
, at para. 65;
R. v. Devine
, 2008 SCC
    36, [2008] 2 S.C.R. 283, at paras. 22-23. That said, where the declarant is not
    available for cross-examination, the focus of the reliability inquiry will necessarily
    be on the circumstances in which the statement came about. The trial judge
    should consider the cumulative effect of all the evidence relevant to the
    reliability issue with his or her focus on the particular dangers presented by
    the evidence:
Khelowan
, at para. 4.

[153]

The factors to
    be considered on the inquiry into reliability cannot be categorized in terms of
    threshold and ultimate reliability. Trial judges are to undertake a more
    functional approach with their focus on the particular dangers raised by the
    hearsay evidence tendered for admission. But the approach of the trial judge to
    the reliability requirement and, more broadly, the issue of admissibility, must
    respect the distinction in roles between the trier of law and the trier of
    fact. To retain the integrity of the fact-finding process, the issue of
    ultimate reliability must not be pre-empted by a determination made on the
    admissibility
voir dire
:
Khelowan
, at paras. 4, 93.

[154]

Where a
    proponent seeks to satisfy the reliability requirement by evidence about the
    circumstances in which the statement was made, a trial judge may also consider
    the presence of corroborating, or for that matter, conflicting evidence:
Khelowan
,
    at para. 100;
Chretien
, at para. 54.

[155]

A final point
    concerns the duty of a trial judge to give reasons when ruling on the
    admissibility of evidence and the scope of appellate review of those reasons.

[156]

The robust body
    of jurisprudence about the duty of trial judges to provide reasons for recording
    convictions and the scope of appellate review of those reasons for sufficiency
    does not apply in the same way to evidentiary rulings. Subject to a duty of
    procedural fairness, there is no general duty to provide reasons for an
    evidentiary ruling. The failure to give reasons on an evidentiary ruling is not
    fatal provided that the decision is supportable on the evidence or the basis
    for the decision is apparent from the circumstances.  The importance of the
    subject-matter of the ruling also has a bearing on whether procedural fairness
    compels reasons: See,
R. v. Woodard
, 2009 MBCA 42, 245 C.C.C. (3d)
    522, at paras. 22, 24-25.

The Principles Applied

[157]

As I will
    explain, I would not give effect to this ground of appeal.

[158]

The trial judge
    was required to decide whether the Crown had established that Larizza's
KGB
statement satisfied the reliability requirement of the principled exception to
    the hearsay rule. That determination required a functional approach, a
    consideration of all the circumstances surrounding the making of the statement,
    to determine whether the Crown had shown that there was no real concern about
    the truth of the statement because of the circumstances in which it came about.

[159]

To begin, I am
    satisfied that the reasons of the trial judge on his admissibility ruling are
    adequate to permit meaningful appellate review. The reasons record the
    principles that the trial judge considered and, albeit briefly, why he was
    satisfied that the reliability requirement had been met. Nothing more was
    necessary.

[160]

Second, the
    factual findings that go into the determination of reliability are entitled to
    deference. The trial judge was well-placed to assess the hearsay dangers, in
    this case, essentially sincerity, and the effectiveness of any safeguards to
    assist in their conquest. Absent an error in principle, the trial judge's
    determination of the threshold reliability is entitled to deference in this
    case.

[161]

Among the
    circumstances in which the statement was made, recall that, unlike most hearsay
    statements where a declarant is unavailable to testify, this statement was made
    under oath with a warning about the consequences of providing false information
    to the police. Larizza was told that the statement would be disclosed to those
    affected by it. The information Larizza provided was first-hand, much of it
    confirmed by other evidence gathered during the investigation.

[162]

To be fair, some
    of the factors that the trial judge noted seem unhelpful in determining the
    threshold reliability of the statement. That Larizza took the initiative in
    contacting the police. That he repeated crucial pieces of information on
    different occasions during the statement. However, I am satisfied that those
    considerations do not warrant interference with the reliability finding, given
    the other valid considerations.

[163]

Third, the trial
    judge was well aware of the motive that underlay Larizza's statement. He wanted
    his bail varied. But the judge also knew that whatever Larizza said, it would
    make no difference to the charges outstanding against him. He took those
    factors into account although they seem to have greater relevance to the issue
    of the ultimate reliability than to what is required for reliability under the
    principled exception to the hearsay rule.

[164]

Fourth, the
    trial judge had an advantage not often available in cases involving unavailable
    declarants and hearsay said to meet the reliability requirement because of the
    circumstances in which the statement was made. The trial judge was an eye and
    ear witness to the statement, thus was in a position to evaluate, at the
    threshold, the sincerity of Larizza to the extent it was revealed by his
    appearance on the video.

[165]

Finally, the
    double hearsay claim is misplaced. Larizza recounted what Muzzi (and Ritchie)
    said and did the night before takedown day. They brought drugs to Larizza's
    house. They asked about leaving them in his garage. They did so. With Larizza's
    permission. Their conduct was an act in furtherance of a common unlawful design
    to traffic in controlled substances. What they did and what Larizza saw them
    doing was not hearsay. Their joint request was not hearsay. To the extent it
    implied trafficking, it was properly admissible under the co-conspirators'
    exception to the hearsay rule.

Ground #3: The Muzzi Guilty Plea and Underlying Facts

[166]

This ground of
    appeal also has to do with evidence received at trial after a
voir dire
into its admissibility. First, some added background.

The Additional Background

[167]

Frank Muzzi was arrested on takedown day on several drug offences and a
    related criminal organization charge. None of the charges related to the
    cocaine and marijuana found in Larizza's garage on takedown day. Shortly after
    Sal Larizza gave his
KGB
statement to police, Muzzi was charged with
    further offences arising out of the seizure of the cocaine and marijuana in
    Larizza's garage.

[168]

Within a year of Larizza's statement, Muzzi pleaded guilty to several
    charges, including those related to the seizures at Larizza's residence. Muzzi
    was represented by very experienced counsel. The statement of facts read by the
    trial Crown to support the plea included a reference to a part of Larizza's
KGB
statement. The excerpt was a passage in which Larizza recounted what Muzzi had
    said when he brought a box over to Larizza's house and asked whether he could
    store it (the box) overnight:

It's just for the night. Tomorrow morning it will be out,
    it'll be off the property.

Muzzi left the box. The following morning police
    executed a search warrant at Larizza's house, found the box and arrested
    Larizza.

[169]

Muzzi's counsel said: "my client acknowledges his involvements in
    the events in question and the facts with respect to these activities are
    acknowledged as being correct and ample for a finding of guilt."

[170]

Frank Muzzi received an agreed-upon sentence. Charges against his mother
    and sister were withdrawn. Although the record of his guilty plea and
    sentencing proceedings contains no mention of it, the trial Crown also agreed
    not to call Frank Muzzi as a witness in any future proceedings against the other
    alleged co-conspirators.

The Ruling of the Trial Judge

[171]

The trial judge
    admitted the fact that Muzzi pleaded guilty and made admissions for a
    non-hearsay purpose on the
voir dire
and the trial. The judge
    concluded:

I am prepared to admit that fact for use on this
voir dire
for the determination of the threshold reliability of the Larizza statement. It
    doesn't matter whether the contents of Muzzi's statements were true. The fact
    that he made the statements many months after Larizza made his statement is
    something the trier of fact may consider in determining the reliability of
    Larizza's statement. The fact that the truth of Muzzi's statements is not in
    evidence detracts from but does not nullify the usefulness of the fact that he
    made statements that tend to confirm Larizza's statement.

I am prepared to admit that fact and the contents of his
    admissions into evidence at trial as evidence to be used in determining the
    collateral issue of identification of the cell phone communicators other than
    the accused.

The Arguments on Appeal

[172]

The appellant
    says that the trial judge was wrong to admit the Muzzi plea and acknowledged
    facts. Each was hearsay. Neither was necessary nor reliable.

[173]

The appellant
    focuses principally on the trial judge's failure to consider the threshold
    requirement of necessity. Muzzi was in custody serving a sentence in a federal
    penitentiary. He was a competent and compellable witness for the Crown. There
    was no suggestion that, if called as a witness, he would resile from the
    admissions he made on entering his guilty plea. His availability meant that the
    necessity requirement could not be satisfied and the evidence should have been
    excluded.

[174]

The appellant
    says that this evidence had no legitimate non-hearsay use, thus should not have
    been received on this basis either. It is well-settled that the plea of guilty
    of one person, even of a co-accused, is not admissible against another accused
    of the same or a related crime.

[175]

The respondent rejects any suggestion that this evidence was received or
    used by the trial judge as evidence of the truth of the facts admitted. The
    evidence was tendered, received and used for a non-hearsay purpose, as
    circumstantial evidence to assist in proof of the identity of a person with
    whom the appellant communicated on his Blackberry.

The Governing Principles

[176]

The plea of guilty of one person accused of a crime is not evidence,
    much less proof, that another, accused of the same crime, committed it:
R.
    v. Berry
(1957), 118 C.C.C. 55 (Ont. C.A.), at p. 60. A plea of guilty is
    a formal admission by its maker of each essential element of the offence to
    which the plea is entered. This formal admission relieves the Crown of the
    burden of proving these essential elements on admissible evidence beyond a
    reasonable doubt.

[177]

The pleas of
    guilty or convictions of other alleged co-conspirators are not admissible to
    prove the existence or fact of the conspiracy in the trial of another or other
    alleged co-conspirators:
R. v. May
(1984), 13 C.C.C. (3d) 257 (Ont.
    C.A.), at p. 260, leave to appeal refused, [1984] 2 S.C.R. viii;
R. v.
    Paquet
(1999), 140 C.C.C. (3d) 283 (N.B. C.A.), at paras. 22-23.

[178]

Where a plea of
    guilty by a third party is admissible in a criminal trial, it may be proven in
    a variety of ways. For example, the person who pleaded guilty may testify to
    that effect. Documentary evidence of the plea may be received under the
    principles relating to the admission of public documents or court records or
    the provisions of the
Canada Evidence Act
, R.S.C. 1985, c. C-5. See,
R.
    v. Caesar
, 2016 ONCA 599, 339 C.C.C. (3d) 354, at para. 33.

[179]

Transcripts of
    court proceedings, including transcripts of guilty pleas, may be admissible to
    prove what was actually said or what actually happened in an earlier
    proceeding, but they are not rendered admissible as evidence of the truth of
    their contents simply because of their nature, common law principles or statutory
    provisions. The hearsay rule intercedes and must be overcome by some listed or
    principled exception if proving the truth of their contents is the object of
    their proponent:
Caesar
, at para. 47. Needless to say, if the
    proponent's purpose is otherwise, the hearsay rule erects no bar.

[180]

Three brief
    points should be made about the operation of the hearsay rule in the
    circumstances.

[181]

First, a
    critical feature of the hearsay rule is the purpose for which the evidence,
    which is said to be hearsay, is tendered. It is only where the evidence is
    offered to prove the truth of its contents that the hearsay rule applies and
    renders the evidence
prima facie
inadmissible:
Khelowan
, at
    para. 57;
R. v. Baldree
, 2013 SCC 35, [2013] 2 S.C.R. 520, at para.
    36.

[182]

Second, what a
    person says may have probative value as non-hearsay, as for example, to
    establish the identity of the speaker. Used in this way, no assumption of the
    truth of the statement is required and the hearsay rule is not implicated:
R.
    v. Evans
, [1993] 3 S.C.R. 653, at pp. 662-663;
R. v. Ferber
(1987), 36 C.C.C. (3d) 157 (Alta. C.A.), at p. 160.

[183]

Third, evidence
    of things done and said by alleged co-conspirators may be admitted as
    circumstantial evidence of the existence of an agreement. Admissibility on this
    basis for this purpose depends on the inferences available from the evidence as
    a whole. Evidence of things done and said admitted for this purpose need not be
    done or said in furtherance of the common design:
R. v. Puddicombe
,
    2013 ONCA 506, 299 C.C.C. (3d) 534, at para. 112.

The Principles Applied

[184]

I would not
    accede to the argument advanced in support of this ground of appeal for three
    reasons.

[185]

First, the basis
    on which the evidence was admitted and used. The evidence of Muzzi's plea of
    guilty and the iteration of the facts on which it was based was neither
    tendered nor used to prove the truth of what was said. It was used on the
voir
    dire
in determining the threshold reliability of Larizza's
KGB

statement and in proving Muzzi's identity as a person with whom the
    appellant communicated. Neither use attracted the application of the hearsay
    rule.

[186]

Second, the
    admissibility of the evidence as non-hearsay. Evidence of what Muzzi said and
    did, as for example in Larizza's garage the night before the takedown, was
    admissible as circumstantial evidence of the existence of an agreement to
    traffic in controlled substances. The manner in which the trial judge used this
    evidence in determining whether the appellant's guilt had been proven beyond a
    reasonable doubt did not exceed the basis upon which it was tendered and
    properly admissible.

[187]

Third, the
    inclusion of Larizza's statement in the uncontested statement of facts. This
    complaint is unavailing as a result of my determination that Larizza's
KGB

statement was properly admitted at trial.

Ground #4: The Admissibility of Muzzi's and Larizza's Statements under the
    Co-conspirators' Exception

[188]

This ground of
    appeal asserts error in the reception of evidence of Muzzi's utterances on the
    night before takedown day and Larizza's repetition of them in his
KGB

statement admitted in evidence at trial. It is unnecessary to repeat the
    background events that resulted in Larizza's statement or its admission at
    trial. The point raised is a narrow one and can be determined briefly in light
    of the discussions that have preceded it.

The Ruling of the Trial Judge

[189]

In a brief endorsement,
    the trial judge reviewed the argument advanced at trial and relying upon
R.
    v. Chang
(2003), 173 C.C.C. (3d) 397 (Ont. C.A.) explained his rejection
    of it:

The defence argued that since Muzzi is incarcerated, he was
    "available" and the Crown should not take refuge behind an exception
    to the hearsay rule. I was impressed with the defence argument that the Crown
    could not avoid presenting Muzzi to the court in person simply because of a
    promise by the Crown not to call him as a witness which was part of Muzzi's
    sentencing proceedings. In retrospect I agree with the Crown that just as the
    Crown has a discretion to proceed against alleged co-conspirators jointly
    thereby making them "unavailable" so too the Crown should not be
    restricted in the exercise of its discretion with respect to plea discussions.
    (
R. v. Chang
¶ 103). In any event, we cannot expect in the
    circumstances of this case to get evidence from Muzzi of the same value. (See
Chang
¶ 105.) In the event the defence has not met the onus placed upon it.

The Arguments on Appeal

[190]

In advancing
    argument in support of this ground of appeal, the appellant accepts that under
    the co-conspirators' exception to the hearsay rule, acts and declarations of
    co-conspirators in furtherance of the common design may be admitted against
    other probable members of the conspiracy to prove their actual membership or
    participation in that conspiracy. The appellant also accepts that even when it
    applies to double hearsay, the co-conspirators' exception as articulated in
R.
    v. Carter
, [1982] 1 S.C.R. 937, satisfies the necessity and reliability
    requirements of the principled exception to the hearsay rule, at least where
    the declarants testimony is unavailable to the Crown because he or she is a
    co-accused.

[191]

The appellant also
    accepts that it is his burden to demonstrate why in this case the evidence did
    not meet the fundamental criteria applicable to the principled approach to the
    hearsay rule. However, he says that he has met that burden because the acts and
    declarations of Muzzi do not satisfy the necessity requirement under the
    principled approach. The appellant points out that Muzzi was available to
    testify for the Crown. He was in a federal penitentiary serving a sentence for
    his involvement in various drug offences. He was a competent witness for the
    Crown and his attendance could be compelled by subpoena. Nothing in the trial
    record indicates that he would have been uncooperative or would have failed to
    give evidence in accordance with the admissions he made when he pleaded guilty.
    This demonstrated lack of necessity renders the evidence inadmissible.

[192]

The respondent
    takes the position that the evidence in issue was properly admitted. The
    evidence, which consisted of acts and declarations of Muzzi in furtherance of
    the common unlawful object, was admissible despite its hearsay nature under the
    co-conspirators' exception to the hearsay rule. As a general rule, the
    co-conspirators' exception satisfies the criteria of necessity and reliability
    under the principled approach.

[193]

The respondent
    acknowledges that in some circumstances evidence that is admissible under the
    co-conspirators' exception may not satisfy the necessity and reliability
    requirements of the principled approach. But those instances will be rare. In
    this case, as the trial judge properly concluded, the appellant has failed to
    meet that burden in connection with the necessity requirement.

[194]

Neither Ritchie
    nor Muzzi was available to testify.

[195]

Ritchie was
    awaiting trial on a separate indictment. Although he was a competent witness
    for the Crown at the appellant's trial and could be compelled to testify,
    calling him as a witness would leave the Crown open to an argument that any
    prosecution of Ritchie after he gave evidence at the appellant's trial would be
    an abuse of process.

[196]

In connection
    with Muzzi, who was also a competent witness for the Crown who could be
    compelled by subpoena to attend the appellant's trial, the respondent submits
    that he too was unavailable. When Muzzi pleaded guilty and received an agreed-upon
    sentence, the trial Crown agreed that Muzzi would not be called as a
    prosecution witness in the subsequent trials of any alleged co-conspirators. This
    was an agreement that the trial Crown could make in the exercise of his
    prosecutorial discretion. There is no suggestion that such an agreement was
    beyond the reach of prosecutorial discretion or amounted to an abuse of that
    discretion. As a result, Muzzi was not available as a witness.

[197]

In addition, the
    respondent reminds us, the necessity requirement refers to reasonable
    necessity. It may be met where a trial judge is satisfied that there is no
    reasonable prospect of obtaining meaningful evidence from a witness of an
    accurate and frank rendition of relevant events or evidence of equivalent value
    to contemporaneous acts and declarations.

The Governing Principles

[198]

Several
    principles combine to inform the determination of this ground of appeal.

[199]

First, the
    relationship between the listed and principled exceptions to the hearsay rule.

[200]

The traditional
    or listed exceptions to the hearsay rule, such as the co-conspirators'
    exception, remain presumptively in place. However, a listed exception can be
    challenged to determine whether it is supported by the indicia of necessity and
    reliability required by the principled approach:
R. v. Mapara
, 2005
    SCC 23, [2005] 1 S.C.R. 358, at para. 15.

[201]

Sometimes,
    evidence that would be admissible under a listed exception may be excluded
    because, in a given set of circumstances, the requirements of necessity and
    reliability have not been met. But these instances are said to be
    "rare":
Mapara
, at para. 15.

[202]

Second, the
    relationship between the co-conspirators' exception and the principled
    approach.

[203]

The
    co-conspirators' exception to the hearsay rule meets the requirements of the principled
    approach to the hearsay rule:
Mapara
, at para. 31. The conditions
    imposed under
Carter
provide sufficient circumstantial guarantees of
    trustworthiness to satisfy the reliability requirement:
Mapara
, at
    para. 27. The necessity requirement is satisfied by a combination of factors
    such as the non-compellability of a co-accused declarant, the undesirability of
    trying alleged co-conspirators separately, and the evidentiary value of
    contemporaneous declarations made in furtherance of an alleged conspiracy:
Mapara
,
    at para.
18;
Chang
, at para.
105.

[204]

Third, the
    requirement or indicium of necessity.

[205]

The criterion or
    requirement of necessity is accorded a flexible definition, capable of
    encompassing diverse situations with a common feature  the unavailability of
    relevant direct evidence. Necessity may be established not only by the
    unavailability of the declarant for testing by cross-examination, but also where
    we cannot expect to get evidence of the same value from the same or other
    sources:
R. v. Smith
, [1992] 2 S.C.R. 915, at pp. 933-934;
Chang
,
    at para. 105. Whether the necessity criterion has been met requires a
    consideration of all of the circumstances in each individual case:
R. v. B.
    (K.G.)
, [1993] 1 S.C.R. 740, at p. 798;
Chang
, at para. 105.

The Principles Applied

[206]

Several reasons
    persuade me to reject this ground of appeal.

[207]

First, it is a "rare
    case" in which evidence that is admissible under the co-conspirators'
    exception does not also satisfy the indicia of necessity and reliability under
    the principled exception. Reliability is not an issue here and, in any event,
    is satisfied by the
Carter

rule. Necessity is to be determined
    on the basis of a consideration of all the circumstances. A trial judge's
    conclusion on this issue is entitled to deference.

[208]

Second,
    necessity is accorded a flexible definition. It is capable of encompassing
    diverse situations. At its core, necessity is concerned with the unavailability
    of relevant direct evidence. The physical or testimonial unavailability of the
    declarant is not the only basis upon which necessity may be established.

[209]

Third, for
    different reasons, relevant direct evidence was not available from either
    Ritchie or Muzzi, thus the necessity for its introduction under the hearsay
    exception.

[210]

For practical
    purposes, Muzzi was not available to give evidence for the prosecution at
    trial. As a non-party at the appellant's trial, Muzzi was a competent witness
    for the Crown and could be compelled to testify. But whether as a
quid pro
    quo
for his guilty plea or otherwise, the trial Crown agreed that Muzzi
    would not be called as a witness for the Crown in any later prosecution of an
    alleged co-conspirator. This decision was an exercise of prosecutorial
    discretion elusive of judicial review absent evidence of abuse of process of
    which there is none here.

[211]

As for the
    availability of Ritchie to provide relevant direct evidence, the circumstances
    are different, but the result the same. As a separately indicted accused
    Ritchie was competent and could be compelled to give evidence for the Crown.
    But, leaving to one side his willingness to testify and to do so truthfully,
    about which we know nothing, requiring him to testify at the appellant's trial
    would invite an application by Ritchie at his own trial to stay proceedings for
    abuse of process.

[212]

In the end,
    there is also the question of onus. That fell upon the appellant to establish
    that this was one of the "rare cases" in which the co-conspirators'
    exception failed to comply with the requirements of the principled approach, in
    this case, because it failed to establish necessity. In that task, the
    appellant failed.

Ground #5: Unreasonable Verdicts

[213]

The appellant
    challenges as unreasonable the convictions entered on several counts alleging
    preliminary and substantive offences involving cocaine. A brief reference to
    the trial judge's reasons provides sufficient background to assess the
    viability of this complaint.

The Reasons of the Trial Judge

[214]

The trial judge
    found the appellant not guilty of trafficking cocaine as a result of his
    purchase of cocaine from a person described as "Penguin" and also of
    conspiracy to traffic cocaine with Penguin. The trial judge considered the
    evidence adduced at trial insufficient to ground a finding that Penguin was
    aware that the appellant purchased the cocaine for the purpose of selling it.

[215]

The trial judge
    then examined the relationship between the appellant and Ritchie. He found that
    Ritchie's assistance in acquiring the cocaine from Penguin bespoke an agreement
    to which Ritchie and the appellant were parties. In reaching this conclusion,
    the judge considered the nature of the relationship between the two men; the
    substantial amount of cocaine involved; and Ritchie's use of the same method of
    transferring money that he had used in the past in drawing an inference that
    the cocaine  two kilograms  would be trafficked. The agreement to traffic
    established a conspiracy to traffic cocaine and rendered the appellant and
    Ritchie parties to trafficking.

[216]

The trial judge
    was also satisfied that the appellant had constructive possession of the
    cocaine from Penguin when three factors coalesced:

i.

the
    money was paid;

ii.

the
    cocaine was shipped to the appellant; and

iii.

the
    appellant was provided with the tracking details for the package containing the
    cocaine.

The Arguments on Appeal

[217]

The appellant
    acknowledges that the trial judge correctly concluded that, as a mere purchaser
    of cocaine, the appellant could not be convicted of conspiracy to traffic or
    trafficking cocaine with Penguin. Where the trial judge erred, the appellant
    says, was in drawing the further inferences necessary to reach a conclusion of
    guilt on the counts involving Ritchie.

[218]

The appellant
    contends that the cumulative effect of the evidence demonstrated nothing more
    than that Ritchie was an agent for the purchaser  the appellant  whose only
    role was to send the money to Penguin. There was no evidence that Ritchie knew
    the purpose for which the money was being sent. It follows that the evidence
    could not support a finding that Ritchie and the appellant conspired to traffic
    cocaine. In addition, the simple fact that money was sent and cocaine shipped
    did not establish that the appellant was in possession of cocaine or party to a
    conspiracy to possess it.

[219]

The respondent
    begins with a brief reminder about the scope of review available when an
    appellant claims a verdict is unreasonable. The fundamental issue is whether
    the verdict is one that a properly instructed jury, acting judicially, could
    reasonably have rendered. Absent a palpable and overriding error, an appellate
    court must not revisit findings of fact made or inferences drawn by triers of
    fact. These findings and inferences are entitled to significant deference and
    cannot be pushed aside simply because other inferences may have been available
    or the reviewing court would not have decided the case in the same way.

[220]

The respondent
    says that the cumulative effect of the email correspondence adduced at trial
    showed that the appellant and Ritchie worked together to purchase and have
    delivered two kilograms of cocaine from Penguin. It was acknowledged at trial
    that two kilograms of cocaine was an amount sufficient for the purpose of
    trafficking.

[221]

The respondent
    contends that the appellant had constructive possession of the two kilograms of
    cocaine shipped by Penguin in return for the cash payment sent by Ritchie. The
    appellant knew that Penguin sent cocaine to him, in return for a cash payment,
    and provided the appellant with the tracking details necessary to take
    delivery. This satisfied the requirements of constructive possession.

[222]

Finally, the
    respondent relies on the fact that the appellant did not provide an innocent
    explanation of his conduct as a factor that undermines the appellants
    assertion that the verdict was unreasonable.

The Governing Principles

[223]

Several
    principles of general application have a say in our decision on this ground of
    appeal. Some have to do with the scope of review permitted in response to
    claims of an unreasonable verdict. Others relate to drawing inferences from
    evidence adduced at trial. Yet others explain the requirements for constructive
    possession.

[224]

First,
    unreasonable verdict review.

[225]

To decide
    whether a verdict is unreasonable, we must determine whether the verdict
    rendered is one that a properly instructed jury or a judge could reasonably
    have rendered:
R. v. Yebes
, [1987] 2 S.C.R. 168, at p. 186
R. v. R.P.
,
2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9. We must not of course merely
    substitute our view for that of the trial judge. However, in order to apply the
    test, we must re-examine and to some extent, within the limit of appellate disadvantage,
    re-weigh and consider the effect of the evidence adduced at trial:
Yebes
,
    at p. 186.

[226]

A verdict may
    also be unreasonable if the trial judge has drawn an inference or made a
    finding of fact essential to the verdict that is:

i.

plainly contradicted by the evidence relied on by the trial judge in
    support of that inference or finding; or

ii.

incompatible
    with evidence that has not otherwise been contradicted or rejected by the trial
    judge.

See,
R.P.
, at para. 9;
R. v. Sinclair
,
    2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21.

[227]

In considering
    the reasonableness of the verdict, this court may infer from the appellants
    failure to testify, an inability to provide an innocent explanation:
R. v.
    Ellis
, 2013 ONCA 739, 303 C.C.C. (3d) 228, at para. 51.

[228]

Second,
    inferences and claims of unreasonable verdicts.

[229]

An inference is
    a deduction of fact that may logically and reasonably be drawn from another
    fact or group of facts found or otherwise established by evidence adduced at
    trial. An inference is a conclusion that may, not must, be drawn in the
    circumstances. A single item or several items of evidence may give rise to more
    than one inference. It is for the trier of fact, whether judge or jury, to
    determine what inferences are to be drawn from the evidence taken as a whole
    and whether the cumulative effect of those inferences satisfies or falls short
    of the standard of proof required in a criminal case.

[230]

Whether a trial
    judge has drawn the proper inference from a fact or group of facts established
    by the evidence is a question of fact, as is whether the whole of the evidence
    is sufficient to establish an essential element of an offence:
R. v. Kent
,
    [1994] 3 S.C.R. 133, at p. 143. Appellate courts may not interfere with the
    findings of fact made and the factual inferences drawn by a trial judge unless
    those findings and inferences are:

i.

clearly
    wrong;

ii.

unsupported
    by the evidence; or

iii.

otherwise
    unreasonable.

Any error must be plainly identified and be shown to
    have affected the result. In other words, the error must be shown to be at once
    palpable and overriding:
R. v. Clark
, 2005 SCC 2, [2005] 1 S.C.R. 6,
    at para. 9.

[231]

It is of the
    essence of circumstantial evidence that a single item of evidence may support
    more than one inference. The same may be said of several items of
    circumstantial evidence, whether considered individually or assessed
    cumulatively. That different inferences may be drawn from individual items of
    evidence, or from the evidence as a whole, does not entitle a reviewing court
    to re-weigh or recalibrate the evidence by substituting, for a reasonable
    inference drawn by the trial judge, an equally  or even more  persuasive
    inference of its own. The task of the reviewing court is to determine whether
    the inferences drawn by the trial judge are "reasonably supported by the
    evidence". No more. No less. See,
H.L. v. Canada (Attorney General)
,
    2005 SCC 25, [2005] 1 S.C.R. 401, at para. 74.

[232]

Third, the
    elements of possession.

[233]

A person may be
    found in possession of a thing in different ways. Among those ways is knowingly
    having the thing in some place, irrespective of whether the person owns or
    occupies the place, for the use or benefit of himself or somebody else:
Criminal
    Code
, s. 4(3)(a)(ii).

The Principles Applied

[234]

As I will
    briefly explain, I would reject this ground of appeal.

[235]

The core
    findings of fact made by the trial judge do not reflect palpable and overriding
    error. The inferences drawn by the trial judge from the cumulative effect of
    this evidence fall well within the field of reasonable inferences available on
    this evidence. As the communications reveal, this was not a first-time
    transaction between Ritchie and the appellant, on the one hand, and Penguin, on
    the other. The quantity of drugs shipped  two kilograms  was plainly for the
    purpose of trafficking. The drugs were being shipped to a place for pick-up in
    a package that the appellant had the information necessary to locate. Nothing
    more was required.

CONCLUSION

[236]

For these
    reasons, I would dismiss the appeal.

Released: April 11, 2017 ("G.R.S.")

"David Watt
    J.A."

"I agree. G.R.
    Strathy C.J.O."

"I agree. K.M.
    Weiler J.A."

[1]

While a trial judge is nevertheless obliged to balance whether
    the probative effect of the statement outweighs its prejudicial value, here, it
    was obvious that he did.