COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Durant, 2019 ONCA 74

DATE: 20190204

DOCKET: C56370 & C56725

Watt, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Durant

Appellant

Michael Durant, acting in person (C56370)

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

Tracy Kozlowski and Dena Bonnet, for the respondent

Heard: May 29-30, 2018 (C56725) and in writing
    (C56370)

On appeal from the conviction entered by Justice James A.
    Ramsay of the Superior Court of Justice, sitting with a jury, on November 28,
    2012.

Watt J.A.:

[1]

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

[2]

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

[3]

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

[4]

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

[5]

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

[6]

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

THE BACKGROUND FACTS

[7]

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

The Killing of D.D.

[8]

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

[9]

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

[10]

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

The Case for the Crown

[11]

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

[12]

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

[13]

Forensic
    identification officers found about 20 bloodstains on a chair in Michael Durants
    garage. D.D. could not be excluded as the source of this blood.

The Defence Position

[14]

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

[15]

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

The Killing of C.C.

[16]

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

[17]

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

[18]

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

The Case for the Crown

[19]

The
    Crown relied on the combined force of several items of evidence. These items
    included evidence that:

i.

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

ii.

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

iii.

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

iv.

Michael Durant and a friend cleaned up the basement of Durants home
    using muriatic acid on the floor and removed a wall;

v.

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

vi.

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

vii.

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

The Defence Position

[20]

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

The Grounds of Appeal

[21]

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

i.

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

ii.

failing to discharge a juror acquainted with C.C.s step-mother;

iii.

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

iv.

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

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

[22]

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

[23]

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

[24]

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

The Essential Background

[25]

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

Proximity in Time

[26]

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

[27]

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

[28]

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

Proximity in Place

[29]

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

[30]

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

The Cause of Death

[31]

Both
    deceased died from blunt force trauma.

[32]

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

[33]

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

Disposal of the Body

[34]

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

[35]

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

The Number of Occurrences

[36]

This
    prosecution involved two occurrences more than two years apart.

Distinctive Features

[37]

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

Evidence Linking the Appellant and Deceased

[38]

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

[39]

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

[40]

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

The Rulings of the Trial Judge

[41]

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

The Ruling on Similar Acts

[42]

The
    trial judge referred to the decisions in
R. v. Arp,
[1998] 3 S.C.R.
    339;
R. v. Woodcock
(2003), 177 C.C.C. (3d) 346 (Ont. C.A.); and
R.
    v. MacCormack
, 2009 ONCA 72, 241 CCC (3d) 516 as expressing the
    controlling principles when determining the admissibility of evidence of
    similar acts tendered to establish the identity of an offender. The trial judge
    acknowledged that the evidence did not reveal any hallmark or signature common
    to both killings. On the other hand, he was satisfied that the evidence
    disclosed a number of significant similarities shared by the killings:

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

[43]

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

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

The Ruling on Severance

[44]

After
    concluding that similar act principles warranted across-count admissibility of
    the evidence on each count, the trial judge turned to the motion for severance.
    He extracted his governing principles from the decisions in
R. v. Jeanvenne
, 2010 ONCA 706
, 261 C.C.C. (3d) 462 and
R.
    v. Last,
2009 SCC 45,
[2009]
    3 S.C.R. 146.

[45]

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

[46]

The
    trial judge considered that the most influential factors informing his decision
    on severance were:

i.

the appellants asserted desire to testify on the count relating to
    D.D., but not on the count relating to C.C.;

ii.

prejudice; and

iii.

the interest in proceeding efficiently.

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

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

[47]

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

[48]

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

The Arguments on Appeal

[49]

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

[50]

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

[51]

The
    appellant acknowledges that, by its express terms, s. 589 limits only the
    circumstances in which non-murder counts may be included in the same indictment
    as counts charging murder. On its face, the section does not bar inclusion of
    two or more counts of murder in the same indictment. But in
Jeanvenne
,
    this court made it clear that the test for severance in s. 591(3)(a) of the
Criminal

Code
should be more stringently applied in favour of an accused
    where two or more counts charging murder are included in the same indictment.
    This is all the more so when the killings cannot meet the high threshold
    required to permit the introduction of evidence of similar acts across the
    counts to assist in proof of the identity of the killer.

[52]

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

[53]

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

[54]

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

[55]

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

[56]

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

[57]

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

i.

the three droplets of C.C.s blood were consistent with castoff staining
    from intravenous drug ingestion;

ii.

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

iii.

the stains could not be dated; and

iv.

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

[58]

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

[59]

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

[60]

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

[61]

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

[62]

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

[63]

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

[64]

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

The Governing Principles

[65]

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

The Joinder and Severance of Counts

[66]

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

[67]

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

[68]

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

[69]

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

[70]

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

[71]

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

[72]

In
    general terms, the phrase interests of justice endeavours to balance an
    accuseds interest in being tried on evidence properly admissible against him
    or her and societys interest that justice be done in a reasonably efficient
    and cost-effective manner:
Last
, at para. 16;
Jeanvenne
, at
    para. 28.

[73]

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

i.

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

ii.

the legal and factual nexus between or among counts;

iii.

the complexity of the evidence;

iv.

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

v.

the possibility of inconsistent verdicts;

vi.

the desire to avoid a multiplicity of proceedings;

vii.

the use of evidence of similar acts;

viii.

the length of trial;

ix.

prejudice to the accuseds right to be tried within a reasonable time;
    and

x.

the existence or likelihood of antagonistic defences.

See,
Last
,
at para. 18;
Jeanvenne
,
    at para. 29.

[74]

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

[75]

As
    a general rule, an accuseds asserted desire to testify on one or more counts
    but not on another or others is accorded substantial weight in the severance
    analysis. But it must be more than a mere assertion. To give substance to the
    claim requires that there be some objective reality to it based on the evidence
    reasonably anticipated at trial. This factor is not dispositive and may be overpowered
    by other factors:
R. v. Steele
, 2006 BCCA 114, 206 C.C.C. (3d) 327, at
    paras. 15-16, affirmed on other grounds, 2007 SCC 36, [2007] 3 S.C.R. 3.
    Included among those countervailing factors is any significant disproportion in
    the strength of the Crowns case as between or among counts:
Steele
,
    at para. 16.

[76]

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

[77]

Third,
    the relationship between the propriety of joinder and the admissibility of
    evidence of similar acts across counts of a multi-account indictment. Where the
    evidence of similar acts is alleged to be evidence relating to other count or
    counts of a multi-count indictment, the trial judge will be required to
    consider the admissibility of the allegedly similar acts in deciding whether
    some counts should be severed from others. But admissibility and severance are
    different issues with different burdens of proof. Severance relates to the
    propriety of joinder and requires that the accused demonstrate, on a balance of
    probabilities, that the interests of justice requires severance. The reception
    of evidence of similar acts to be applied across counts is an issue of
    admissibility which requires the Crown to establish, also on a balance of
    probabilities, that the evidence ought to be admitted by exception to the
    general rule of exclusion:

Arp
at para. 52. It does not follow
    that because the trial will proceed on a multi-count indictment that the
    evidence given on one count will apply to all other counts:
Arp
, at para.
    52.

[78]

A
    final point concerns the reviewability of decisions on severance.

[79]

The
    discretionary nature of severance decisions has implications for appellate
    review of those decisions. Decisions on severance may be set aside on appellate
    review only where the appellate court is of the view that the decision is
    unjudicial or has resulted in an injustice:
Last
, at para. 21;
Jeanvenne
,
    at para. 26. These grounds involve different inquiries. On an allegation that
    the decision was unjudicial, the court looks to the circumstances when the
    ruling was made to determine whether the decision was flawed by an error of law
    or principle or was unreasonable. In determining whether the ruling resulted in
    an injustice, the court looks at the entirety of how the trial and verdicts
    unfolded:
Jeanvenne
, at para. 27.

Evidence of Similar Acts

[80]

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

[81]

Although
    evidence of character or disposition as revealed by specific conduct on other
    occasions may be relevant to a specific allegation of crime with which an
    accused is charged, this evidence is usually excluded because its slight
    probative value is ultimately overwhelmed by its predominant prejudice effect:
Arp
,
    at para. 40. See also,
R. v. B. (C.R.)
, [1990] 1 S.C.R. 717, at pp.
    734-735. What the similar act rule prohibits is not so much a state of facts,
    but rather a chain or path of reasoning:
D.P.P. v. Boardman
, [1975]
    A.C. 421 (H.L.), at p. 453;
Arp
, at paras. 40-41.

[82]

The
    similar act rule, like other rules of admissibility, is by nature exclusionary:
    evidence of similar acts is presumptively inadmissible. It is of no moment to
    the rule whether the similar acts are charged as separate counts in a
    multi-count indictment or involve uncharged extraneous misconduct:
Handy
,
    2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31. But, again like other rules of
    admissibility, the similar act rule permits exceptions.

[83]

The
    rationale or principles underlying the exclusionary rule are the key to its
    exclusionary exceptions. The exclusionary rule is based upon the presumed
    predominance of prejudicial effect over probative value. The exception is
    engaged when the presumption is rebutted. This occurs when the probative value
    of the evidence overcomes its prejudicial effect, that is to say, the moral and
    reasoning prejudice associated with it:
Handy
, at para. 42. The
    inferences sought to be drawn must accord with common sense, intuitive notions
    of probability, and the unlikelihood of coincidence:
Handy
, at para.
    42.

[84]

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

[85]

The
    issues in a case derive from the facts alleged in the charge and the defences
    advanced or those which may be reasonably anticipated at trial. Thus, as the
    proponent of evidence of similar acts, it is incumbent on the Crown to identify
    the live issue to which the evidence of similar acts is said to relate. The
    relative importance of the issue in a particular trial may also have a bearing
    on the weighing up of factors for and against admissibility:
Handy
, at
    para. 74;
Arp
, at para. 38.

[86]

The
    issues in question are not categories of admissibility. The identification of
    an issue to which the evidence of similar acts is said to be relevant is
    neither more nor less than a step in the admissibility analysis which, in the
    end, turns on weighing the probative value and prejudicial effect of the
    evidence:
Handy
, at para. 75.

[87]

The
    principal driver of probative value is the connectedness or nexus established
    between the evidence of similar acts and the offence of which it is offered to
    assist in proof. What is required is an evaluation of the degree of similarity
    between the proposed evidence and the offence charged to determine whether the
    objective improbability of coincidence has been established:
Handy
, at
    para. 76.

[88]

In
    evaluating the nexus or connection between the similar acts and the offence
    charged, the authorities suggest that close attention should be paid to
    similarities in character, proximity in time, and frequency of occurrence. A
    trial judge should also consider the cogency of the evidence of similar acts in
    relation to the inferences the proponent seeks to have the trier of fact draw
    from it, as well as the strength of the proof of the similar acts themselves:
Handy
,
    at paras. 81-82.

[89]

It
    is well-settled that where evidence of similar acts is proposed for admission
    to identify an accused as the person responsible for a crime, the authorities
    require a high degree of similarity. The descriptives vary but include phrases such
    as strikingly similar, so highly distinctive or unique as to constitute a
    signature, or fingerprints at the scene of the crime that would safely
    differentiate the alleged perpetrator from other possible assailants:
Handy
,
    at paras. 77, 80.

[90]

In
    the usual course where evidence of similar acts is proposed for admission in
    proof of a perpetrators identity, the trial judge should review the
manner
in which the similar acts were committed, that is to say, whether the allegedly
    similar acts involve a unique trademark or reveal a number of significant
    similarities. This review enables the trial judge to determine whether the
    alleged similar acts were likely all committed by the same person. This analysis
    is confined to a consideration of the
manner
in which the acts were
    committed and
not
the evidence relating to the involvement of the
    accused in those acts. The result of this analysis establishes the likelihood
    of a common actor:
Arp
, at paras. 45, 50;
R. v. Perrier
, 2004
    SCC 56, [2004] 3 S.C.R. 228, at para. 21. See also,
Woodcock
, at
    paras. 79-81.

[91]

For
    evidence of similar acts to be admissible on the issue of identification, it is
    not sufficient that the evidence reveal a common actor. Somehow those acts must
    be linked to the accused. In other words, there must be some evidence of a
    linkage or nexus between the similar acts and the accused as their author.
    There must be some evidence, something beyond mere opportunity or possibility,
    that provides this nexus:
Arp
, at para. 56;
Perrier
, at para.
    24.

[92]

A
    final point concerns the scope of review of decisions on the admissibility of
    evidence of similar acts. These decisions involve the weighing up of probative
    value and prejudicial effect, and thus are accorded substantial deference on
    appeal:
R. v. Shearing
, 2002 SCC 58, [2002] 3 S.C.R 33, at para. 73;
B.
    (C.R.)
, at p. 733. This does
not
mean of course that a trial
    judge has a discretion to admit similar act evidence where the rule of presumptive
    inadmissibility has not been displaced because the prejudicial effect of the
    evidence exceeds its probative value. What it does mean is that absent an error
    in principle, the decision should rest where it is allocated  with the trial
    judge:
Shearing
, at para. 73.

The Principles Applied

[93]

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

[94]

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

[95]

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

[96]

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

[97]

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

[98]

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

[99]

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

[100]

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

[101]

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

[102]

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

[103]

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

[104]

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

[105]

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

[106]

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

[107]

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

[108]

In large
    measure, the error in admitting the evidence on one count as evidence of a
    similar act to prove the appellants guilt on the other count determines the
    result on the question of severance.

[109]

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

[110]

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

Ground #2: Discharge of Juror

[111]

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

[112]

Some additional
    background is essential to an understanding of the circumstances in which the
    issue arose and the trial judges decision not to discharge the juror from
    service.

The Essential Background

[113]

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

[114]

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

The Message Received

[115]

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

[116]

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

The Inquiry Request

[117]

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

The Initial Inquiry of the Juror

[118]

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

[119]

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

[120]

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

The Defence Request

[121]

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

The Inquiry of W.K.

[122]

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

[123]

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

[124]

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

The Further Inquiry of the Juror

[125]

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

The Positions of Counsel at Trial

[126]

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

[127]

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

The Ruling of the Trial Judge

[128]

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

[129]

The trial judge
    concluded his ruling in these terms:

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

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

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

I decline to discharge the juror.

The Arguments on Appeal

[130]

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

[131]

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

[132]

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

[133]

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

[134]

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

[135]

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

[136]

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

The Governing Principles

[137]

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

[138]

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

i.

illness; or

ii.

other reasonable cause.

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

[139]

First, the
    procedure.

[140]

The
    circumstances that may give rise to a necessity for a decision under s. 644(1)
    are myriad. It follows that there can be no fixed or invariable form of inquiry
    conducted. Flexibility is essential. Each case must be tackled according to its
    own idiosyncrasies. A trial judge should be afforded a high degree of
    flexibility in determining and following the procedure he or she thinks best
    suited to resolve the particular issue raised:
R. v. Giroux
(2006),
    207 C.C.C. (3d) 512 (Ont. C.A.), at para. 34.

[141]

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

i.

be fair to all the parties and all the jurors;

ii.

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

iii.

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

iv.

preserve the integrity of the trial process and the impartiality of the
    jury.

See,
Giroux
, at para. 35.

[142]

Whether a juror
    should continue to act or be discharged under s. 644(1) is not an issue that
    sits comfortably with the adversarial nature of a criminal trial, and it should
    not be subject to the normal rules of that system. Once sworn or affirmed,
    jurors become and remain judges for the remainder of the trial. To be certain,
    they must of necessity submit to any proper inquiry conducted by the trial
    judge  the other judge in the case. But they should not become witnesses in
    the very proceeding in which they have sworn or affirmed to well and truly try
    and a true deliverance make between our Sovereign Lady the Queen and the
    prisoner whom you have in your charge. No more so than the trial judge should
    become a witness in the ordinary sense:
R
. v. Hanna
(1993), 80
    C.C.C. (3d) 289 (B.C.C.A.), at p. 312.

[143]

Juror inquiries
    under s. 644(1) should take place in open court, on the record, in the presence
    of the accused and counsel. The inquiry should be conducted by the trial judge.
    At least so far it relates to the juror(s) affected, counsel should be
    permitted to suggest questions to be asked of the juror(s) and to make
    submissions about the decision to be made, but not permitted to question the
    juror directly:
Hanna
, at p. 312.

[144]

No principled
    reason warrants the juror whose suitability is in issue being put under oath or
    required to make a solemn affirmation. When empanelled, each juror swears an
    oath or makes a solemn affirmation in the terms described earlier. This is
    sufficient for the purposes of the s. 644(1) inquiry and permits the trial
    judge to make any findings necessary to the discharge decision, whether the
    jurors answers be uncontradicted or controverted by evidence given by other
    witnesses under oath or solemn affirmation:
Hanna
, at p. 312. See
    also,
Giroux
, at para. 36.

[145]

Next, the
    standard applied.

[146]

The
    determination whether to discharge a juror under s. 644(1) proceeds from a
    presumption of impartiality in which those summoned for jury duty and those
    selected are clothed. In each case, the presumption is that jurors, prospective
    or actual, will approach and discharge their duty impartially and in accordance
    with judicial instructions:
R. v. Spence
, 2005 SCC 71, [2005] 3 S.C.R.
    458, at paras. 21-22;
R. v. Corbett
, [1988] 1 S.C.R. 670, at pp.
    692-693.

[147]

The standard
    that a party seeking to rebut the presumption of impartiality must meet depends
    on the issue to be decided. At the pre-vetting stage, for example, a close
    connection between a prospective juror and a trial principal may be sufficient
    to excuse the prospective juror from the selection process:
R. v. Hubbert
(1976), 11 O.R. (2d) 464 (C.A.), affirmed, [1977] 2 S.C.R. 267;
R. v.
    Betker
(1997), 33 O.R. (3d) 321 (C.A.).

[148]

In determining
    whether to permit a challenge for cause under s. 638(1)(b) for want of
    indifference, the standard to be met in the supportive material is a realistic
    potential for partiality:
R. v. Sherratt
[1991] 1 S.C.R. 509, at p.
    536;
Spence
, at para. 23.

[149]

It is
    uncontroversial that lack of impartiality on the part of a selected juror can
    constitute other reasonable cause to discharge that juror under s. 644(1) of
    the
Criminal Code
:
R. v. Tsoumas
(1973), 11 C.C.C. (2d) 344
    (Ont. C.A.), at p. 345;
R. v. Andrews
(1984), 13 C.C.C. (3d) 207
    (B.C.C.A.), at p. 212. The test applicable at this stage to rebut the
    presumption of impartiality is that of reasonable apprehension of bias:
R.
    v. Dowholis
, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 19.

[150]

The
    apprehension of bias must be a reasonable one, held by reasonable and
    right-minded persons, applying themselves to the question and obtaining the
    required information about it. The grounds for the apprehension must be
    substantial. The test is what would an informed person, viewing the matter
    realistically and practically  and having thought the matter through
    conclude:
R. v. S. (R.D.)
, [1997] 3 S.C.R. 484, at paras. 31 and 109.

[151]

In concluding
    whether a reasonable apprehension of bias has been established, a judge tasked
    with an application under s. 644(1) could take into account, among other things,
    the jurors oath or affirmation; the presumption of impartiality; and the
    contents of the judges instructions to the jury on fundamental legal
    principles like the need to keep an open mind, how to assess evidence, the
    irrelevance of extraneous considerations, and the proper conduct of the
    deliberative process:
R. v. Wolfe
, 2005 BCCA 307, 197 C.C.C. (3d) 486,
    at para. 32.

[152]

A final point
    concerns the standard of review for decisions under s. 644(1) of the
Criminal
    Code
. A decision under the subsection is afforded substantial deference
    and set aside only when it is tainted by an error of law or principle, there is
    a misapprehension of material evidence, or it is a decision that is plainly
    unreasonable:
R. v. Lessard
(1992), 74 C.C.C. (3d) 552 (Que. C.A.), at
    p. 563;
R. v. Cunningham
, 2012 BCCA 76, 87 C.C.C. (3d) 488, at paras.
    25-26.

The Principles Applied

[153]

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

[154]

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

[155]

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

[156]

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

[157]

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

Ground #3: The Included Offence of Manslaughter

[158]

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

The Essential Background

[159]

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

The Pre-Charge Conference

[160]

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

[161]

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

[162]

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

[163]

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

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

The Objections to the Charge

[164]

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

[165]

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

The Decision of the Trial Judge

[166]

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

The Arguments on Appeal

[167]

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

[168]

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

[169]

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

[170]

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

[171]

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

[172]

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

The Governing Principles

[173]

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

[174]

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

[175]

To satisfy the
    air of reality standard, the evidence adduced at trial must afford a basis upon
    which a reasonable jury, properly instructed, could have a reasonable doubt
    about the constituent elements of an included offence:
R. v. Cinous
,
    2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 54, 86;
R. v. Luciano
, 2011
    ONCA 89, 267 C.C.C. (3d) 16, at para. 75. This test requires trial judges to
    tread a fine line. It requires more than some or any evidence of the
    elements of a defence but does not extend so far as to allow a weighing of the
    substantive merits of that defence:
R. v. Mayuran
, 2012 SCC 31, [2012]
    2 S.C.R. 162, at para. 21;
R. v. Pappas
, 2013 SCC 56, [2013] 3 S.C.R.
    452, at para. 22. The air of reality standard is about the availability of a
    defence, or included offence, not about the likelihood of its success at
    trial.

[176]

Application of
    the air of reality standard enjoins any consideration of the credibility of
    witnesses or the reliability of their evidence; of weighing evidence
    substantively; of making findings of fact; or of drawing determinate factual
    inferences:
Cinous
, at para. 87;
R. v. Fontaine
, 2004 SCC 27,
    [2004] 1 S.C.R. 702, at para. 12. However, in some circumstances, as for
    example where the elements of a defence can only be established by drawing
    inferences from circumstantial evidence, a trial judge must examine the
    totality of the evidence to determine whether the inferences required to ground
    the defence fall within the field of inferences reasonably available on the
    evidence adduced at trial:
Pappas
, at para. 25;
Cinous
, at
    paras. 53, 91.

[177]

Where a defence,
    justification or excuse has more than one element, the air of reality test must
    be met for each essential element, whether it be subjective or objective in
    nature. The absence of evidence on
any
essential element disentitles
    consideration of that defence:
R. v. Suarez-Noa
, 2017 ONCA 627, 139 O.R.
    (3d) 508, at paras. 41, 43. The same holds true when the defence requests that
    the jury be instructed on an included offence.

[178]

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

The Principles Applied

[179]

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

[180]

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

[181]

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

[182]

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

i.

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

ii.

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

iii.

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

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

Ground #4: Intercepted Private Communications

[183]

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

[184]

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

The Essential Background

[185]

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

i.

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

ii.

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

[186]

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

The Clause in Issue

[187]

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

[188]

The clause in
    issue is in these terms:

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

The Interceptions

[189]

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

[190]

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

[191]

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

[192]

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

[193]

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

The Ruling of the Trial Judge

[194]

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

[195]

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

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

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

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

The Admissibility Ruling

[196]

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

[36] I find helpful the approach taken by Dawson J. in
Ansari
and OMarra J. in
Peluso
. To me, the analysis required by s.24(2) of the
Charter
, as explained in
R. v. Grant
, [2009] SCJ No. 31, turns on
    the following on the facts before me:

a.

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

b.

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

c.

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

d.

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

[197]

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

The Arguments on Appeal

[198]

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

[199]

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

[200]

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

[201]

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

[202]

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

The Governing Principles

[203]

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

[204]

Section 184(1)
    of the
Criminal Code
makes it an indictable offence to wilfully
    intercept private communications by means of specified types of devices.
    Section 184(2)(b) exempts a person who intercepts a private communication in
    accordance with an authorization granted under Part VI of the
Criminal
    Code
from criminal liability for that interception. In order for a search
    under Part VI to be constitutionally compliant, it needs to be done in accordance
    with the authorization:
R. v. Duroslovac
, 2012 ONCA 680, 112 O.R. (3d)
    696, at para. 30.

[205]

An authorizing
    judge has a discretion, but not an obligation, to include terms and conditions
    in the authorization or renewal. To determine whether to include terms and
    conditions, the authorizing judge must consider whether their inclusion is advisable
    in the public interest:
Criminal Code
, s. 186(4)(d);
Duroslovac
,
    at para. 32.

[206]

For instance, an
    authorizing judge may include terms whose purpose is to minimize the risk that
    communications of others who are beyond the scope of the authorization or
    renewal will be captured:
Duroslovac
, at para. 33.

[207]

To be in
    accordance with an authorization and therefore constitutional, interceptions
    must be compliant with the authorization as a whole, including with any terms
    or conditions contained in the order as advisable in the public interest. To
    determine whether an authorization permits certain interceptions to be made or,
    after the fact, whether those interceptions have been made in accordance with
    an authorization, requires an examination not only of the specific words,
    phrases, and clauses in the enabling order, but also the order as a whole:
Duroslovac
,
    at para. 41.

The Principles Applied

[208]

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

[209]

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

[210]

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

[211]

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

[212]

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

[213]

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

[214]

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

[215]

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

[216]

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

[217]

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

[218]

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

CONCLUSION

[219]

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

Released: DW FEB 4
    2019

David Watt J.A.

I agree. Grant
    Huscroft J.A.

I agree. Trotter
    J.A.