COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zvolensky, 2017 ONCA 273

DATE: 201700403

DOCKET: C56042, C56152 & C56503

Sharpe, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Zdenek Dennis Zvolensky, Nashat Qahwash and
    Ronald Cyr

Appellants

Frank Addario, Andrew
    Furgiuele and Delmar Doucette, for the appellant Zdenek Dennis Zvolensky

Anil K. Kapoor and Sarah
    Harland-Logan, for the appellant Ronald Cyr

John M. Rosen, Paul J.I.
    Alexander and Lindsay Daviau, for the appellant Nashat Qahwash

Jocelyn Speyer and Alison
    Wheeler, for the respondent

Heard: January 23, 24, 25, and 26,
    2017

On appeal from the convictions entered on April 30, 2012
    by Justice Linda Walters of the Superior Court of Justice, sitting with a jury.

Table of
          Contents

A.

Severance
.
6

(1)

The
          trial judges ruling
.
6

(2)

Analysis
.
9

B.

Zvolensky
          application to exclude the evidence of the undercover officer

15

(1)

The
          undercover operation
.
16

(2)

Trial
          judges decision
.
26

(3)

Argument
          on appeal

28

(4)

Analysis
.
30

C.

Editing
          of statements to the undercover officer

38

D.

Use
          of discreditable conduct by co-accuseds counsel

40

E.

Failure
          to instruct on second degree murder

41

F.

Zvolenskys
          argument that cross examination by the Crown and Cyrs counsel made his trial
          unfair

47

G.

The
          Rule in
Browne v. Dunn
.
48

(1)

Analysis
.
53

H.

The
          coded text message
.
56

I.

Adoptive
          admissions
.
58

J.

Quahwashs
          pre-trial silence
.
61

K.

Zvolensky
          denial to police that he was the killer

65

L.

The
          trial judges error about the use of Qahwashs statement

67

M.

Crown
          Closing
.
68

N.

Was
          one of the jurors ineligible for jury service?
.
73

O.

Juror
          and Court Services Officer conduct

76

(1)

Arguments
          on appeal

84

(2)

Analysis
.
85

P.

Conclusion
.
88

Pardu J.A.:

[1]

Nadia Gehl was shot and killed at about 8:45 a.m. on February 2, 2009 as
    she walked from her home to a bus stop to go to work. About six months later,
    her husband Ronald Cyr was arrested and charged with her murder. Nashat Qahwash
    and Zdenek Dennis Zvolensky were arrested a few hours later. The Crown
    alleged that Cyr arranged for Zvolensky to kill his wife and that Zvolensky
    enlisted Qahwash to help him.

[2]

Zvolensky and Cyr were close friends, as were Zvolensky and Qahwash.

[3]

Gehls work hours were irregular. Cyr called her in the morning on
    February 2 to make sure she was up to go to work. The night before, he sent a
    text message to Zvolensky, saying, Can you play ball on tue. The game is at
    8:40. The captain of Cyrs basketball team testified that there was no game
    scheduled for that night. The Crowns theory was that this was a coded message
    triggering the killing. Zvolensky did not reply to this message, but there were
    immediate text messages between Zvolensky and Qahwash.

[4]

The gun used for the killing was found hidden in Qahwashs basement,
    some six months after the killing. A bag containing ammunition had his
    fingerprints on it. Zvolenskys DNA was on the gun. Text messages discussing
    the purchase of a gun were exchanged between Zvolensky and Qahwash in the days
    before Gehl was shot.

[5]

Cyr told an undercover officer how he had arranged the murder. Zvolensky
    made statements from which a jury could infer that he was also part of the
    plan. Qahwash also made some statements from which a jury could infer he was
    part of the plan.

[6]

Cyr had a motive to kill his wife. He was having an affair with a
    co-worker at the law firm where he worked as a paralegal. There was life
    insurance. He emptied his bank account just before the gun was purchased.

[7]

All three appellants testified. Each blamed another. Cyr testified that
    he lied to the undercover officer when he said he participated in the killing
    of his wife because Zvolensky was blackmailing him. Cyr said that Zvolensky
    told him Zvolensky  killed Gehl, had the gun and would make sure police
    connected the gun to Cyr, unless Cyr provided funds to invest in a canoeing
    business.

[8]

Zvolensky denied any such blackmail. He said he unwittingly participated
    in the murder by agreeing to wait for Qahwash in his car on a street close to
    where the killing took place. He said he thought he was helping Qahwash with a
    robbery. On the morning of February 2, 2009, Zvolensky arrived at Qahwashs
    home just before 8:00 a.m. He said Qahwash told him to park in a neighbourhood
    near the home where Gehl and Cyr lived together. He did so. Qahwash arrived in
    his own car and got into Zvolenskys car. Qahwash gave Zvolensky the gun and
    told him to take it to his home in Oakville.

[9]

Qahwash testified that Zvolensky gave him $1,700 to buy the gun used in
    the killing about a week before the shooting. Qahwash said Zvolensky wanted to
    use the gun to rob drug dealers. He purchased the gun on the morning of January
    31, 2009. He said that he and Zvolensky both went to test fire the gun on the
    evening of February 1. He loaded both magazines and Zvolensky fired the shots.

[10]

Qahwash
    testified that, on the morning of the murder, Zvolensky came to his home and
    picked up the gun. Zvolensky told Qahwash to meet him in Oakville later that day.
    They met in Oakville, ran a few errands and then returned to Zvolenskys house.
    Qahwash said that Zvolensky then told him that he just shot Gehl, at Cyrs
    request, in return for future life insurance payments. Qahwash said he asked
    Zvolensky if he used the gun Qahwash had just bought. The next day, Qahwash
    sent a text to Zvolensky. He was worried he had left fingerprints on the gun. Qahwash
    said he unwittingly helped Zvolensky kill Gehl by giving him the gun.

[11]

On
    their own evidence, Qahwash and Zvolensky were together, with the gun, close to
    the time of the killing.

[12]

All
    three were convicted of first degree murder  a planned and deliberate killing
     and all three appeal from conviction.

A.

Severance

[13]

The
    appellants submit that the trial judge erred in refusing their application to
    be tried separately.

[14]

At
    trial, Zvolensky submitted at first that he and Qahwash should be tried
    together, but separately from Cyr. He later agreed with Qahwashs submission
    that all three should be tried separately.

[15]

Qahwash
    and Zvolensky both said they were prejudiced when the jury heard evidence from
    the undercover officer about statements by Cyr describing their participation
    in the killing. They argued that, if the jury accepted that Cyrs statement to
    the undercover officer was true, the jury would not be able to put that aside
    in considering the evidence against Qahwash and Zvolensky. Qahwash submitted
    that he was doubly prejudiced, as Zvolensky also made statements implicating
    them both in the killing.

(1)

The trial judges ruling

[16]

The
    trial judges reasons on the application for severance are reported at 2011
    ONSC 4649. She summarized the evidence said to give rise to prejudice that was
    serious enough to make a joint trial impossible, at paras. 11 and 13:

·

Statements by Zvolensky:

·

July 18, 2009  Zvolensky tells the UCJ [the undercover officer] he
    can plan a hit on [the officers] ex-wife. He says that he and Qahwash had done
    this kind of stuff before. He tells him that Qahwash had killed someone in
    Montreal and in Toronto; that Qahwash had been involved in a card scamming
    enterprise and had a .38 handgun. Zvolensky tells UCJ that he and Qahwash would
    plan the hit on his wife and that UCJ should be out of town when it happens.
    UCJ says that was similar to when Cyrs wife was shot. UCJ suggests that the
    gun be melted down after the hit. Zvolensky disagrees telling him its best to
    cut it with a band saw as he and Qahwash had done before.

·

July 22, 2009  Zvolensky discusses the proposed hit with UCJ. He
    tells him he wants to bring Qahwash in on it as the two of them had worked
    together in the past where Zvolensky was the eyes and Qahwash the trigger man.
    He tells UCJ that Qahwash is tightlipped and trustworthy.

·

July 23, 2009  Zvolensky and UCJ go to look at guns. They
    discuss Nadias murder and Zvolensky tells him the gun from that job had been
    destroyed. UCJ tells Zvolensky that he is happy that he and Qahwash got away
    with one murder but thinks this time they should do this one differently.
    Zvolensky agrees.

·

August 2, 2009  Zvolensky and UCJ meet to discuss the proposed
    hit. Zvolensky tells UCJ he thinks that Qahwash got rid of the gun they used on
    Nadia Gehl.

·

Statements by Cyr:

·

August 1, 2009  Cyr meets with UCJ who complains about his
    ex-wife and tells Cyr that Zvolensky had volunteered to kill her. He asks Cyr
    if Zvolensky and Qahwash can be trusted. In a lengthy conversation, Cyr
    outlines in detail how he planned Nadias murder, how Zvolensky and Qahwash
    executed the plan, and how the three of them were now carefully covering up. In
    the words of UCJ, Cyr had given up the entire thing from beginning to end.

·

August 7, 2009  Cyr and UCJ meet to discuss the hit on UCJs
    ex-wife. In the course of the conversation Cyr once again tells UCJ how he came
    up with the plan to kill Nadia Gehl and that Zvolensky and Qahwash had carried
    it out. Cyr also comments that Zvolensky knew he would be getting some of the
    insurance money once it came in and that Zvolensky would then pay Qahwash.

[17]

The
    trial judge began by noting that the discretion whether to grant severance must
    be exercised judicially with a view to balancing the interests of the accused
    and the public. The public has an interest in seeing that justice is done in a
    reasonably efficient and cost-effective manner, and an accused has a right to
    a fair trial, which includes a right to be tried on the evidence admissible
    against him:
R. v. Last
, 2009 SCC 45, [2009] 3 S.C.R. 146, at para.
    16. The trial judge stated that separate trials will not be automatically required
    every time there is evidence which is admissible against one accused and not
    another.

[18]

She
    observed at para. 18 that although the court has a discretion to grant
    severance where the interests of justice so demand, jointly charged accused who
    are alleged to have acted in concert will generally be tried jointly, even in
    cases involving confessions or admissions.

[19]

She
    referred to the policy considerations supporting joint trials highlighted in
R.
    v. Crawford
, [1995] 1 S.C.R. 858, at para. 30, including the risk of inconsistent
    verdicts where cutthroat defences are advanced, the extra cost and delay
    associated with separate trials and the likelihood that the truth is more
    likely to emerge in a joint trial.

[20]

She
    concluded that the appellants had not displaced the presumption that they
    should be tried together. She noted: the cost consequences and delay associated
    with granting severance in this case; the weakening memory of the witnesses
    over time; the fact that the Crown estimated it would be calling about sixty
    witnesses across the three prosecutions; and the risk of inconsistent verdicts
    arising out of the probability that each appellant would advance a cutthroat
    defence. She acknowledged that the admissions made by the Cyr and Zvolensky were
    not admissible against any other co-accused. But she held that any prejudice
    caused by allowing a jury to hear them all in a joint trial was capable of
    being mitigated by limiting instructions and editing of the statements.

(2)

Analysis

[21]

On
    appeal, Zvolensky says that he and Qahwash should have been tried together,
    apart from Cyr. He submits that no limiting instruction could overcome the
    prejudice arising from Cyrs compelling admissions to the undercover officer. He
    contends that the trial judge gave too much importance to the fear of inconsistent
    verdicts, the cost and delay associated with separate trials, and the
    difficulties separate trials would pose for witnesses.

[22]

Qahwash
    adopts these submissions, but goes further and argues that he should have been
    tried alone.

[23]

I
    do not agree that the trial judge erred in refusing severance. This was a
    discretionary decision attracting deference. All three appellants were closely
    connected to the killing, and they each blamed another. They were alleged to
    have executed a plan to kill to which all were parties. Even where one accused
    has made statements inadmissible against another, courts have favoured joint
    trials in these circumstances.

[24]

As
    the following review of the jurisprudence demonstrates, persons charged with a
    joint criminal venture will presumptively be tried together.

[25]

For
    example, in
R. v. Welsh
, 2013 ONCA 190, 115 O.R. (3d) 81, one
    participant in a shooting made statements to other participants, implicating a
    third, Welsh. The trial judge repeatedly warned the jury that those statements
    were not admissible against Welsh. On appeal, as in this case, Welshs position
    was that no jury instruction could alleviate the prejudice and that a finding
    of guilt for one accused inevitably would lead to a conclusion that the other
    accused was also guilty.

[26]

Citing
Guimond v. The Queen
, [1979] 1 S.C.R. 960, this court acknowledged
    that a significant imbalance in the strength of the case against each of
    multiple accused was a factor in determining whether to grant severance, writing
    at para. 182:

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

[27]

The
    court concluded at para. 184 that there was no such significant imbalance and
    that the trial judge did not err in refusing severance:

Welshs situation is not unusual in cases of multiple accused
    where the accused are alleged to have played different roles. The fate of
    parties and principal offenders are almost inevitably intertwined. Trial judges
    deal with this problem by instructing the jury to deal with each accused
    separately and only consider the evidence admissible against the particular
    accused.

[28]

In
Crawford
, two accused were charged with murder. One co-accused
    implicated the appellant in a statement to police. The co-accused did not
    testify at trial. The appellant testified at trial and blamed the co-accused for
    the killing.

[29]

The
    co-accuseds statement was not admissible against the appellant. The Supreme
    Court of Canada reiterated the preference for joint trials in these
    circumstances, writing at paras. 30-31:

There exist, however, strong policy reasons for accused persons
    charged with offences arising out of the same event or series of events to be
    tried jointly. The policy reasons apply with equal or greater force when each
    accused blames the other or others, a situation which is graphically labelled a
    cut-throat defence. Separate trials in these situations create a risk of
    inconsistent verdicts. The policy against separate trials is summarized by [D.W.
    Elliott, Cut Throat Tactics: The Freedom of an Accused to Prejudice a
    Co-Accused, [1991] Crim. L. Rev. 5, at p. 17] as follows:

There is a dilemma here which could only be avoided by
    separate trials. But separate trials will not be countenanced because, quite
    apart from the extra cost and delay involved, it is undeniable that the full
    truth about an incident is much more likely to emerge if every alleged
    participant gives his account on one occasion. If each alleged participant is
    tried separately, there are obvious and severe difficulties in arranging for
    this to happen without granting one of them immunity. In view of this, in all
    but exceptional cases, joint trial will be resorted to, despite the double bind
    inevitably involved.

Although the trial judge has a discretion to order separate
    trials, that discretion must be exercised on the basis of principles of law
    which include the instruction that severance is not to be ordered unless it is
    established that a joint trial will work an injustice to the accused. The mere
    fact that a co-accused is waging a "cut-throat" defence is not in
    itself sufficient.

[30]

In
R. v. McLeod, Pinnock and Farquharson
(1983)
, 6 C.C.C. (3d) 29 (Ont. C.A.), affd, [1986] 1 S.C.R. 703,
    each of three accused, who were charged with robbery and attempted murder, made
    statements to police implicating a co-accused. All statements linked the speaker
    to the scene of the crime. This court upheld the trial judges decision
    refusing severance, and cited the following from.
R. v. Torbiak and Gillis
(1978), 40 C.C.C. (2d) 293 (Ont. C.A

The rule is well established that
prima facie
where
    the essence of the case is that the accused were acting in concert, they should
    be jointly indicted and tried, and an appellate Court will not interfere with
    the discretion of the trial Judge unless he has failed to exercise it
    judicially or his decision has caused a miscarriage of justice

[31]

Another
    example is
R. v. Hamilton
, 2011 ONCA 399, 271 C.C.C. (3d) 208. Four
    accused were involved in shooting into a crowd resulting in two deaths. Intercepted
    telephone calls revealed a conspiracy by some of the accused to kill another
    co-accused, Reid, because he was talking about his role in the group activity. Reid
    argued on appeal that the trial judge erred in refusing severance because of
    the prejudicial impact of statements about him by his co-accused. This court
    reiterated the presumption that two co-accused who are jointly charged and are
    said to have acted in concert should be tried together. Although there was
    little risk of inconsistent verdicts, this court held that the trial judge was
    correct to refuse severance. It pointed to the limiting instructions and noted at
    para. 214 that it was well established that juries should be presumed to
    understand and follow such instructions.

[32]

These
    same principles have been explained in
R. v. Maugey
(2000), 146 C.C.C.
    (3d) 99 (Ont. C.A.), at para. 63, and
R. v. Court
(1995), 99 C.C.C. (3d) 237 (Ont. C.A.), at p. 259.
There
    is a presumption that co-accused said to have acted together will be tried
    jointly, and the fact that one has made a statement implicating a co-accused
    does not necessitate severance.

[33]

As
    noted in
R. v. Suzack
(2000), 141 C.C.C. (3d) 449 (Ont. C.A.), at para.
    88:

Separate trials where co-accused are blaming each other for the
    crime raise not only the danger of inconsistent verdicts, but also a real
    concern that the truth will not be discovered at either trial. It is axiomatic
    that the truth of an allegation is best tested through a process which requires
    the accuser to confront the accused with the allegation and gives the accused a
    chance to respond to the allegation. If co-accused who are blaming each other
    for a crime are allowed to do so in separate trials, neither jury will have the
    benefit of that process. If the accused are tried separately, it is highly
    unlikely that either jury will hear the complete story.

[34]

An
    appellate court should not intervene in a trial judges decision whether to
    sever accused unless it is satisfied that the judge acted unjudicially or that
    the ruling resulted in an injustice.
R. v. Litchfield
, [1993] 4
    S.C.R. 333, at p. 354.

[35]

In
    the case at hand, the trial judge considered all of the appropriate factors. This
    is not a case where the evidence against one accused was significantly weaker
    compared to his co-accused. Triple cutthroat defences were advanced. All were closely
    connected to the killing and, to borrow the words of the court in
Welsh
,
    their fates were almost inevitably intertwined. There was a risk of
    inconsistent verdicts with two or three separate trials. This was a case that
    called out for a joint trial.

B.

Zvolensky application to exclude the evidence of the undercover officer

[36]

At
    trial, Zvolensky brought an application to exclude all evidence of his
    conversations with the undercover officer on the grounds that his rights
    guaranteed by s. 7 and s. 8 of the
Charter
had been violated. He
    further submitted that the evidence of discreditable conduct on his part in
    those conversations should be excluded on the basis that the prejudicial effect
    of that evidence outweighed its probative value. Cyr joined in that application.
    Qahwash also supported Zvolenskys application and submitted that any
    discreditable conduct evidence which related to him should be excluded on the
    same basis or edited on the basis that the probative value of that evidence was
    less than its prejudicial effect.

(1)

The undercover operation

[37]

Cyr
    was fired by his wifes fathers law firm when his affair with a secretary
    employed by the same firm came to light after Gehls death. He applied for a
    job as a salesman with Bad Boy, a furniture retailer. He was accepted as an
    employee and enrolled in a company training program in Toronto in March 2009. When
    police learned of this, they asked Bad Boy to allow an undercover officer to
    enrol in the same program. As a result, Cyr and the undercover officer became
    classmates. When the training program ended, the undercover officer was
    assigned to work in the same store as Cyr, and they became friends, in Cyrs
    mind.

[38]

The
    undercover officer (UCO) pretended that he was plagued by a vindictive
    ex-wife who wanted to ruin his life. Another undercover officer, Lauren,
    played the role of the UCOs girlfriend.

[39]

There
    is little dispute about the content of the interactions between the UCO and the
    appellants. Most of these were recorded.

[40]

On
    May 2 2009, Cyr told the UCO of his idea to purchase a business, Canoeing the
    Grand. Zvolensky and Cyr were both interested; they met at the business to
    discuss it on May 7. The UCO led Cyr to believe that he and his girlfriend
    Lauren had the half million dollars required to invest in the business with the
    appellants. Zvolensky met the UCO at this time, through Cyr, and was excited
    about the opportunity to become a business owner. Zvolensky met in person with
    the UCO on eighteen occasions during the interval between May 7 and August 9
    and spoke to him on the telephone on twenty one occasions.

[41]

To
    make the ploy convincing, the UCO met with the actual owner of the business to
    negotiate the purchase, produced fake landscaping plans, cheques drawn on a fake
    bank account and false incorporation papers and produced a genuine real estate
    appraisal of the property. Zvolensky was to become the manager at Canoeing the
    Grand. The UCO gave Zvolensky $200 as wages on two occasions to cover
    expenses and took him shopping for $200 worth of clothes so he would look like
    a businessman. When Zvolenskys car broke down, Lauren gave him $500 to rent another
    one.

[42]

The
    need for the UCOs ex-wife to disappear became a frequent theme of
    conversations between the UCO and Zvolensky. At a visit to Canoeing the Grand
    on May 27, Zvolensky pointed to a covered well and said I got a place for her
    right here and they both laughed. Zvolensky joked that maybe she had to go for
    a really long canoe ride.

[43]

On
    June 10, the UCO met with Zvolensky at the UCOs apartment. During the visit,
    the UCOs ex-wife called and demanded money, leading the UCO to hang up on
    her. The UCO told Zvolensky that his ex-wife had to disappear one day, for
    everyones sake.

[44]

Zvolensky
    and the UCO went to Paris, Ontario to check out a competing canoe touring
    company on the same date. The UCO told Zvolensky that suspicions hanging over
    Cyr because of Gehls murder might jeopardize Laurens willingness to fund the
    business purchase. On their return to Kitchener, they picked up Qahwash and
    went out for dinner. The UCO said that he and his kids would live with Lauren
    if he could get rid of his wife.

[45]

On
    June 13, the UCO invited Cyr, Zvolensky and Qahwash to his apartment to review
    business documents. Following another staged phone call from his ex-wife, the
    UCO threw his cell phone at the wall, feigning rage. In discussing landscaping
    plans for the Canoeing the Grand property, Zvolensky suggested that they should
    get a hollow rock in which they could hide guns on the property. The UCO told Zvolensky,
    in front of Qahwash, that he had a contact in Windsor who could smuggle guns
    into Canada at a good price. Zvolensky was happy about this and they agreed to
    discuss it later.

[46]

Over
    the following weeks, the UCO made it appear that plans were progressing to
    acquire the business. On June 20, the UCO, Cyr, Zvolensky and Qahwash met at
    Cyrs home for a barbecue and to sign the incorporation papers. Everyone was
    excited and celebrating. They gave each other high-fives and the UCO said they
    were now officially business partners. On June 25, the UCO told Cyr that he
    thought it would be a good idea to start paying Zvolensky a wage for the
    responsibilities he would be taking on to foster his sense of becoming a
    manager. Cyr agreed.

[47]

Zvolensky
    was keenly interested in guns. On July 3, he asked the UCO about his gun
    contacts and told him that guns were too expensive to purchase locally. He
    wanted to buy guns but did not want to register them. He wanted to hide them at
    the Canoeing the Grand premises. On July 15, the UCO showed him a picture of a
    gun dealer (another undercover officer), posing with two pistols. Over the
    next few days, they had several discussions about guns.

[48]

On
    July 18, Zvolensky came to the UCOs apartment to look at photographs of guns. The
    UCO played a hostile voice message from his fictitious ex-wife and suggested
    she might put an end to their plans to buy the business. Zvolensky offered to
    kill the UCOs ex-wife. He asked the UCO if he wanted it done in a particular
    way and asked how quickly they could get a gun from the UCOs dealer. He said
    he preferred a revolver so no bullet casings would be left behind and wanted a
    silencer. He spoke about how diligent he was in planning every detail when
    arranging anything grimy like this. He told the UCO that he would take
    personal responsibility for disposing of a gun used in a killing and would not
    leave it to someone else. He observed that because he, Cyr and the UCO now all
    knew each other, this might make them all suspects in two homicides. Zvolensky
    suggested that the UCO keep his wife at bay and keep Lauren calm.

[49]

On
    July 22, Zvolensky met the UCO in his apartment. He confirmed his willingness
    to kill the UCOs ex-wife, but he changed his mind about what kind of gun he
    wanted. He said he wanted a semi-automatic gun instead. Bullet casings would
    not be a problem because there would be no fingerprints on them. Zvolensky said
    he wanted to involve Qahwash because it would be easier if they did it
    together.

[50]

Zvolensky
    met the UCOs gun dealer Cookie (in reality another undercover officer) on
    July 23. Zvolensky and the UCO drove to London together to meet him. Cookie
    showed them three guns and told Zvolensky he could order whatever he liked, as
    long as he had the money. Zvolensky was happy with this, telling the UCO that
    guns were like candy. On the way back, the UCO broached the subject of Gehls
    murder, asking Zvolensky where he and Qahwash had gone to get the gun used in
    that murder. Zvolensky told him they had had to do a fuckin  desperation sale
    from a Toronto nig. The UCO asked how much they had paid. Zvolensky responded
    that they paid $1,700 and that the gun looks like shit looks like its from
    the forties. Zvolensky reassured the UCO that police would not be able to link
    the murder of his ex-wife with Gehls death because they had disposed of the
    gun used in that murder.

[51]

The
    UCO talked to Zvolensky about making sure the two murders were committed in
    different ways. Zvolensky was concerned that their telephones could connect
    them to two killings. Zvolensky said he was pretty sure the police knew what
    was up with Cyr but couldnt prove it. The UCO said Yeah, but the cops dont
    know about you and Dutch (Qahwash) they just know about him. Zvolensky
    responded, Yeah.

[52]

The
    UCO expressed concerns that the suspicions surrounding Cyr about his wifes
    murder could jeopardize the plans to acquire Canoeing the Grand. He sought
    assurances from Zvolensky that there were no loose ends that could jeopardize
    their plans.

[53]

On
    July 29, Zvolensky and Qahwash met with the UCO at a restaurant. Zvolensky
    asked the UCO if he could get assault rifles and said that he and Qahwash could
    make a lot of money re-selling them in Guelph. Zvolensky told the UCO in Qahwashs
    presence that he and Qahwash could deal with the UCOs ex-wife as long as they
    had the gun and silencer. On July 30, the UCO called Zvolensky and told him
    that, once the purchase of the business was finalized, they would all be
    driving company trucks under the fleet leasing contract that Lauren had. That
    night, Qahwash and Zvolensky went to visit Cyr at work. Zvolensky told Cyr the
    UCO had asked him to kill his ex-wife. They agreed they should discourage the
    UCO from doing this and string him along until the business purchase was
    closed.

[54]

On
    July 31, the UCO called Zvolensky to say they were on the verge of getting the
    business. The UCO called him again to give him prices and availability for
    AK47s and handguns.

[55]

On
    August 1, Cyr and the UCO went to look at trucks to purchase. The UCO
    complained bitterly about his ex-wife. He told Cyr that Zvolensky had offered
    that Zvolensky and Qahwash could take care of his ex-wife and make it look
    like an accident. Cyr began to discuss the ramifications of killing ones wife.
    He told the UCO that if his ex-wife were killed police would follow him around
    all the time and that it was not worth it. The UCO wondered whether killing his
    ex-wife would eat away at him. Cyr responded that he would live with it forever
    so it could not be a hasty decision. Cyr told the UCO to consider how his
    children would react. The UCO asked Cyr how he was coping:

UCO:          Oh
    fuck. Like how are you getting along with it? Is it  just a tough decision eh?

Cyr:            Thats why I say its a tough decision.

UCO:          Are you ok with it now?

Cyr:            Yeah.

[56]

Cyr
    told the UCO that he had to have a solid alibi and to keep his activities as
    normal as possible. He said it would be better to wait until his relationship
    with his ex-wife improved so no one would think he had any reason to kill her. He
    said they should choose a place for the murder where they would be unlikely to
    be seen and to consider how to avoid surveillance cameras.

[57]

The
    UCO asked Cyr whether he could trust Zvolensky and Qahwash. Cyr responded:
    Dennis will be the brains behind the operation but Nashat will never say a
    fuckin word. The UCO asked Cyr if he was confident that, even if Zvolensky
    and Qahwash were arrested, they would not turn on the UCO. Cyr confirmed that
    he was. The UCO asked Cyr if he too had left the planning to Zvolensky and
    Qahwash. Cyr said, Do you think Id trust them to come up with shit? He told
    UCO that Zvolensky was not afraid to abort if a plan was not going right:
    hell just do it another time. When the UCO asked if Qahwash would say
    anything, Cyr replied: Phew, no.

[58]

Cyr
    cautioned the UCO that the police would investigate all of his friends. He said
    the police had showed him Zvolenskys photo because Cyr had phoned Zvolensky,
    but Cyr just told them that he knew Dennis from basketball and work. Cyr
    commented that he had called Zvolenskys cell phone a couple of times and that
    that was perfectly normal: I called a guy I work with whats your fucking
    point? I called a guy I play basketball with what the fucks your point?

[59]

The
    UCO questioned why they had used a gun in Cyrs quiet neighbourhood. Cyr
    responded: Heres the thing. No one even found her for 45 minutes. Their talk
    turned to the gun, with Cyr telling UCJ that even though he had told Zvolensky
    to get rid of it, he thought Zvolensky still had it. Cyr said he had not been
    able to talk to Zvolensky.

[60]

The
    UCO asked whether Nadias murder had made a big messy scene. Cyr said he did
    not know. The UCO said you could not do that in his ex-wifes neighbourhood. At
    that point, Cyr described Gehls murder, telling UCJ how the streets and the
    surrounding area were laid out. Drawing with his finger on a sales pamphlet,
    Cyr explained:

Cyr:             They
    were somewhere in this neighbourhood in a car.

UCO:           Just him and Nashats there?

Cyr:             Yeah.

UCO:           Theres no third?

Cyr:             Nashats
    in the car, boom, runs over there and quick and they drive into the country so
    theres no cameras. They came in the same way.

UCO:           Ohhh. Nashat drove.

Cyr:             Thats mine.

Cyr pointed at himself, smiled and snapped the lapels
    on his suit jacket.

[61]

UCJ
    asked whether Cyr had paid Zvolensky. Cyr responded: I told him if the life
    insurance ever comes in Ill give you some. UCJ offered Cyr money to give to
    Zvolensky in case there were sour feelings, but Cyr said there were not, Ive
    known Dennis for like

[62]

Their
    conversation continued with more talk of whether Zvolensky still had the gun,
    and then it returned which trucks to purchase for the business.

[63]

On
    August 2, the UCO met with Zvolensky. Zvolensky assured him that the gun used
    to kill Gehl had been disposed of.

[64]

On
    August 7, the UCO and Cyr visited dealerships to look at trucks. Afterwards,
    they sat on the bleachers in a local park. The UCO asked Cyr about how to go
    about killing his ex-wife. He asked Cyr what the last straw was for him in his
    relationship with his wife. Cyr responded that there were a bunch of last
    straws. The UCO asked Cyr if he needed money for Zvolensky and Qahwash in case
    the life insurance payment did not come through. Cyr said he would not get the
    life insurance and that he had told Zvolensky it would be years and years,
    leaving Zvolensky to look after Qahwash. Cyr told the UCO to stick to his
    normal routine when planning the murder of his ex-wife. He told the UCO that
    from an outsiders point of view, everything in his life with Gehl had looked
    good. The UCO asked Cyr if the killing was Zvolenskys grand plan. Cyr said
    no and that he had given Zvolensky the parameters.

[65]

On
    August 9, Cyr was arrested. The UCO met with Zvolensky and Qahwash in a
    restaurant parking lot to tell them he had seen the arrest. He asked them if
    they had any cleaning up to do and if they needed help or money. Zvolensky said
    no to both. They discussed whether there was any way police could connect them
    to the killing, such as roadside cameras. The UCO asked them if Cyr would talk.
    Both Zvolensky and Qahwash were adamant that Cyr would not. Qahwash was less
    talkative than Zvolensky, and there was some dispute at trial about what Qahwash
    said. Both Zvolensky and Qahwash were arrested several hours later, at Qahwashs
    house, where the murder weapon was hidden.

(2)

Trial judges decision

[66]

Zvolensky
    argued at trial that his statements to the UCO should be excluded because his
    personal life was invaded, as he put it in his factum at trial, being
    fraudulently led to believe that he was having private discussions with a
    partner in a legitimate business transaction, through which he could lift
    himself out of poverty. He also argued that the prejudicial effect of the
    evidence, notably about the plot to murder the UCOs ex-wife and his ambitions
    to traffic in guns, outweighed its probative value. Cyr made the same
    arguments. He had lost his wife, his job and was a suspect in a murder
    investigation. He was vulnerable to the lure offered by the UCO.

[67]

The
    trial judges reasons on the application to exclude the statements are reported
    at 2011 ONSC 7470. She held that s. 8 of the
Charter
was not engaged
    as there was no search. She also rejected the argument that the s. 7
Charter
rights of the appellants had been violated. She concluded that the undercover
    operation did not deprive the appellants of liberty or undermine their
    psychological integrity seriously enough to deprive them of security of the
    person. Finally, she held that even if the appellants had established
    infringements of their
Charter
rights, she would have still admitted
    their inculpatory statements under s. 24(2): see
R. v. Grant
, 2009 SCC
    32, [2009] 2 S.C.R. 353, at paras. 108-110. The police had acted in good faith,
    the impact on the appellants rights was not severe and the reliability of the
    evidence was high and central to the Crowns murder prosecution.

[68]

The
    trial judge went on to consider whether the evidence of the appellants discreditable
    conduct the participation in the fictitious plot to kill the UCOs ex-wife and
    the evidence about trading in guns  should be excluded. While she determined that
    this evidence was presumptively inadmissible, in this case its probative value exceeded
    its potential for prejudice.

[69]

She
    concluded that the evidence was important to understand the relationship of
    trust that existed among Cyr, Zvolensky and Qahwash and the degree of trust
    they had in the UCO. The evidence of the guns and the proposed killing of the
    UCOs ex-wife were part of the narrative and provided context for statements by
    the accused about the killing of Gehl. There was little dispute about what was
    said. The trial judge was satisfied that limiting instructions would ensure
    that there was no improper propensity reasoning by the jury and admitted the
    evidence.

(3)

Argument on appeal

[70]

Zvolensky
    argues that all evidence about communications between him and the UCO should be
    excluded from evidence. The decision in
R. v. Hart
, 2014 SCC 52, [2014]
    2 S.C.R. 544, dealing with the Mr. Big investigative ploy was released after
    the trial judges decision. Zvolensky submits that
Hart
mandates
    exclusion.

[71]

Zvolenskys
    argument rests on two pillars. The first is his vulnerability to the inducement
    of becoming a business owner; this was his chance to lift himself out of a life
    of poverty. He points to his conversations with the UCO on June 10 and July 23,
    2009:

Listen, put it this way. This [the proposed purchase of Canoeing
    the Grand] and consequently you [as an investor] basically saved my life
    because right now Im in a position where Im not in a position. So this is a
    lot of what you know is is starting the ball rolling on future shit that I need
    to get  So my theory is this. Well at least for me. Once youre broke as fuck
    and you you get money you never go back to being broke as fuck  Because you
    know what it is like to be broke as fuck. See people that are rich dont know
    what it is  Dont know that feeling. Do you know how, do you know how like
    good me and me and this guy [Qahwash] are stretching our money at? You know
    what on paper we made last year for our income?  Our T4s were about maybe
    three hundred dollars off of each other. Mine was two thousand eight hundred
    and forty-one dollars. Now how the fuck does one live an entire year on three
    thousand dollars  Well you do this. You do, like, I mean fuck, Im a Im a
    fuckin squatter half the year because I have to go back from Oakville. Like I
    stretch a dollar same as him like nobodys business. Like, you have to be
    creative. You have to be innovative and in this experience, I mean, thats why
    I can do what I do because you cant live off two Gs and have a car  This
    theres, well basically, youre going to have to pry the business [Canoeing the
    Grand] out of my cold dead hands [which caused UCJ to laugh]  Because  Ive
    been, Ive been broke and Im still broke because nothing has happened yet. You
    know what I mean? So its like I dont ever say anything until shits gonna
    happen  And fuckin once I, you, you know, once you and me and everybody have
    this  this is basically my ticket not to be fuckin a broke failure. And I will
    die defending that.

Yeah, trust me man. Like me and Dutch [Qahwash] talk about it a
    lot  like cause its your money and shit and all we can say is  your your
    investment  will not go fuckin go like unreturned. Like, youre going to
    profit off this, man. Like where we we do our damnedest to make sure everybody
    eats  You know what I mean? Cause this honestly  Ill never have this
    opportunity  no one will ever offer me  this opportunity youre offering me
    in my life ever again  so I must capitalize now  thats it like  I have to.

[72]

The
    second pillar is the significant prejudice associated with Zvolenskys willingness
    to participate in another murder and trade in guns.

[73]

The
    Crown says that the undercover operation in the present case was not a Mr.
    Big police operation and that the analysis from
Hart
does not
    strictly apply. In any event, however, it says that the trial judges
    analytical approach was sufficiently similar to the
Hart
analysis that
    this court can assess the probative value and prejudicial effect of the
    evidence in an analogous way.

(4)

Analysis

[74]

In
Hart
, Moldaver J. articulated a new common law rule to apply to Mr.
    Big police investigations. He described the archetypal Mr. Big investigation
    in the following terms, at paras. 1-2:

A Mr. Big operation begins with undercover officers luring
    their suspect into a fictitious criminal organization of their own making. Over
    the next several weeks or months, the suspect is befriended by the undercover
    officers. He is shown that working with the organization provides a pathway to
    financial rewards and close friendships. There is only one catch. The crime
    boss  known colloquially as Mr. Big  must approve the suspects membership
    in the criminal organization.

The operation culminates with an interview-like meeting between
    the suspect and Mr. Big. During the interview, Mr. Big brings up the crime the
    police are investigating and questions the suspect about it. Denials of guilt
    are dismissed, and Mr. Big presses the suspect for a confession. As Mr. Bigs
    questioning continues, it becomes clear to the suspect that by confessing to
    the crime, the big prize  acceptance into the organization  awaits. If the
    suspect does confess, the fiction soon unravels and the suspect is arrested and
    charged.

[75]

Moldaver
    J. emphasized that an accused persons willingness to participate in a criminal
    organization is inevitably prejudicial. A jury might conclude that a person
    willing to participate in criminal offences is the kind of person likely to
    have committed the offence charged. Where an unreliable confession resulting
    from threats or inducements is coupled with this moral reasoning prejudice, the
    risk of a miscarriage of justice is unacceptably high. He developed a new
    common law rule to achieve a just balance  one which guards against the risk
    of wrongful convictions that stem from false confessions but which ensures the
    police are not deprived of the opportunity to use their skill and ingenuity in
    solving serious crimes: para. 3.

[76]

He
    expressed the new common law rule as follows, at para. 85:

The first prong recognizes a new common law rule of evidence
    for assessing the admissibility of these confessions. The rule operates as
    follows: Where the state recruits an accused into a fictitious criminal
    organization of its own making and seeks to elicit a confession from him, any
    confession made by the accused to the state during the operation should be
    treated as presumptively inadmissible. This presumption of inadmissibility is
    overcome where the Crown can establish, on a balance of probabilities, that the
    probative value of the confession outweighs its prejudicial effect. In this
    context, the confessions probative value turns on an assessment of its
    reliability. Its prejudicial effect flows from the bad character evidence that
    must be admitted in order to put the operation and the confession in context. If
    the Crown is unable to demonstrate that the accuseds confession is admissible,
    the rest of the evidence surrounding the Mr. Big operation becomes irrelevant
    and thus inadmissible. This rule, like the confessions rule in the case of
    conventional police interrogations, operates as a specific qualification to the
    party admissions exception to the hearsay rule.

[77]

He
    did not exclude the operation of the rule to analogous circumstances, noting,
    at para. 85, footnote 5:

This rule targets Mr. Big operations in their present form. A
    change in the way the police use undercover operations to elicit confessions
    may escape the scope of this rule. However, it is not for this Court to
    anticipate potential developments in policing. To do so would be speculative. Time
    will tell whether, in a future case, the principles that underlie this rule
    warrant extending its application to another context.

[78]

It
    is common ground that the second prong of the test articulated in
Hart
,
    whether police misconduct amounted to an abuse of process, has no application
    in this case. There was no police misconduct.

[79]

Moldaver
    J. indicated at para. 102 that the first step in assessing the reliability of a
    Mr. Big confession is to examine the circumstances in which the confession
    was made and assess the extent to which they call into question the
    reliability of the confession, including but not limited to the following:

·

The length of the operation;

·

The number of interactions between the police and the accused;

·

The nature of the relationship between the undercover officers
    and the accused;

·

The nature and extent of inducements offered;

·

The presence of any threats;

·

The conduct of the interrogation itself; and

·

The personality of the accused, including his or her age,
    sophistication and mental health.

[80]

The
    next step in the analysis is to look at the confession itself for markers of
    reliability, such as the level of detail, whether it leads to discovery of
    additional evidence, whether it identifies any elements of the crime that have
    not been made public or whether it accurately describes details only a
    participant in the crime would know. He noted at para. 105 that [c]onfirmatory
    evidence is not a hard and fast requirement, but where it exists, it can
    provide a powerful guarantee of reliability.

[81]

Most
    Mr. Big cases will turn on the reliability of the confession. The potential for
    prejudice will remain fairly constant from case to case: para. 108. However,
    prejudice can be mitigated by excluding certain pieces of particularly
    prejudicial evidence that are unessential to the narrative and providing an
    appropriate limiting instruction to the jury: para. 107.

[82]

Finally,
    a trial judges decision whether to admit or exclude a Mr. Big confession will
    be afforded deference on appeal: para. 110.

[83]

I
    agree with the Crown that the present case does not fit within the archetypal
    Mr. Big scenario described in
Hart
. There was no criminal
    organization. There was no Mr. Big. There was no confession extracted by
    threats or inducements. The UCO broached the topic of Gehls killing under the
    assumption that Zvolensky, Qahwash and Cyr were involved and sought assurances
    from Zvolensky and Qahwash that it would not jeopardize the proposed business
    venture. There was no coercion. There was no interrogation.

[84]

The
    present case does involve the risk of moral and reasoning prejudice associated
    with the evidence of the appellants extrinsic criminality. However, unlike the
    typical Mr. Big scenario, the precise reason why the appellants gave
    incriminatory statements about their participation in Gehls murder was
not
their ambition to participate in a criminal
    organization. Indeed, they attempted to explain away these statements as lies
    that they told for alternative reasons. Zvolensky testified he lied to the UCO
    because he wanted to acquire an interest in the Canoeing the Grand business. Cyr
    said he lied because he wanted to get back the gun used in Gehls murder and
    foil Zvolenskys blackmail plot.

[85]

That
    said, given the potential prejudice associated with exposing a jury to the
    appellants apparent willingness to murder the UCOs ex-wife and attempts to
    purchase firearms, as part of the context of the appellants statements to the
    UCO, in my view the factors listed by Moldaver J. in
Hart
provide a
    useful framework for determining whether that prejudice is overcome by the
    statements reliability.

[86]

Here
    there is powerful confirmatory evidence of the reliability of the confessions. The
    presence of the gun used in the killing, hidden in Qahwashs basement, with Qahwashs
    fingerprint on the bag containing the ammunition and Zvolenskys DNA on the gun,
    suggests that Cyrs statement that Zvolensky and Qahwash committed the murder
    under his direction is true. That Zvolensky and Qahwash both stated the gun was
    purchased for $1,700 is unlikely to be coincidental. Zvolensky knew the gun was
    an old one. Qahwash and Zvolensky exchanged text messages about buying a gun in
    the days before the murder. The text message from Cyr to Zvolensky, saying The
    game is at 8:40, the time of the killing, 8:45 and the testimony from the
    coach of the basketball team that there was no such game tends to confirm that
    there was a plan in the works. Qahwash and Zvolensky were in frequent contact
    the night before the murder.

[87]

The
    trial judges conclusion that the conduct of the UCO did not have a serious and
    profound effect on the psychological integrity of Zvolensky or Cyr was
    supported by the evidence.

[88]

Although
    it might be said that Zvolensky was somewhat manipulated by the UCO, the manipulation
    was a two-way exercise. It is true that Zvolensky was happy to get a one-fifth
    interest in the Canoeing the Grand business for nothing and happy to have the
    UCO facilitate his access to guns for resale. He told the UCO that he was
    saving his life and that this was a once in a lifetime opportunity for him. He explained
    that this was genuine, in the sense that he did not think anyone else would
    offer him the same opportunity. However, he also said, Im trying to pull on
    his heartstrings a little bit; for some people when they help others, they
    feel good about themselves for it  Its like, well, youre helping me you
    cant let it down now, you know, you said you would help us, you cant back
    out. His testimony was that he lied to the UCO that he would kill the UCOs
    ex-wife in order to assure the UCO that she would not interfere with the
    business acquisition.

[89]

There
    was no inducement offered as a condition of an admission of guilt to the
    murder. Zvolensky would not admit participation in the murder on occasions when
    the UCO asked him about it. He was not in the thrall of the UCO to the point
    where he was unable to consider his own best interests. He was twenty four years
    old, healthy and held two or three jobs during the undercover operation. He was
    not socially isolated, as he lived with his parents and had a girlfriend. He
    had graduated from high school. He did not talk to the UCO about deeply
    personal matters. It was Zvolensky who first brought up the idea of investing
    in dealing in firearms.

[90]

Qahwash
    had very little relationship with the UCO and seldom spoke to him. There is
    nothing to suggest that he had any particular vulnerability connected to the
    interaction with the UCO that made any statements he made unreliable.

[91]

Similarly,
    Cyr was confident and boasted of his ability to mastermind the plan to kill.
    There is no evidence of any particular vulnerability on his part, and he did
    not suggest that he had any such weakness. His testimony at trial was that he
    was trying to use the UCO to get the gun used to kill his wife. Cyr told the UCO
    that he knew what a Mr. Big operation was. He said that in such an operation
    an undercover officer would befriend the suspect and then try to get the
    suspect to join a secret criminal organization but before he can join the
    organization that suspect has to tell him about the heinous crime or whatever
    he did and then he can join. There is nothing that undermines the trial
    judges conclusion that, other than their happiness at the proposed business
    venture, the UCOs conduct did not have any psychological effect on either Zvolensky
    or Cyr.

[92]

The
    appellants did not suffer from mental health or addiction problems. The conduct
    of the UCO did not dramatically change their lives. The operation was of short
    duration, approximately three months. There were no inducements offered or
    threats made to secure any statement.

[93]

The
    statements to the UCO had sufficient probative value to justify presentation to
    the jury. I agree that the probative value of the evidence outweighed the potential
    prejudice, particularly when coupled with the multiple warnings given by the
    trial judge that a statement by one was not admissible against another and her
    removing extraneous prejudicial evidence unnecessary to the narrative. In what
    follows, I consider whether this court should intervene in her editing
    decisions.

C.

Editing of statements to the undercover officer

[94]

In
    this court, the appellants reiterated the same arguments they made before the
    trial judge. They had submitted that all references to a co-accuseds name
    should be edited from a statement by one of them to the UCO, as should evidence
    of their willingness to participate in plans to kill the UCOs ex-wife or
    traffic in guns.

[95]

The
    trial judge refused to exclude this evidence. In her reasons on the
    application, she recognized the statements potential prejudice, but she found
    that they were highly probative and relevant given the Crowns theory. They
    disclosed the relationship of trust between the appellants and the UCO and
    provided the narrative context for the jury to determine whether the appellants
    conspired together in the murder of Gehl. She stated that limiting instructions
    to the jury regarding how they can properly use this evidence would
    sufficiently mitigate the potential for prejudice.

[96]

The
    trial judge ruled that other discreditable conduct would be excluded on that
    ground that the probative value was outweighed by its prejudicial effect, but she
    did not exclude all of the items requested by the appellants. In making her
    decision, she indicated at para. 80 that she considered the following factors:

In arriving at this decision, a number of factors have been
    considered including:

(a) the interest of the public in
    having all evidence relating to the murder placed before the jurors to ensure a
    just and proper verdict;

(b) the danger that editing a
    statement might result in it being misinterpreted or altered in its substance
    or tone;

(c) whether editing would interrupt
    the flow of the statement and arouse suspicion and speculation by the jury;

(d) the prejudice which might be
    occasioned by the jury hearing evidence admissible against one accused, but
    clearly inadmissible against the others;

(e) That although evidence might be
    inadmissible for one purpose, it may very well be admissible for another
    legitimate purpose;

(f) that in this case, the evidence
    of the murder of the fictitious ex-wife and the obtaining of illegal guns is
    inextricably tied in with the alleged confessions or inculpatory statements of
    both M. Cyr and Mr. Zvolensky;

(g) the evidence of the fictitious
    ex-wifes murder and the illegal guns is, as discussed earlier and probative of
    the relationship between each of the accused and the relationship between the
    undercover officer and the accused;

(h) the statements provide part of
    the narrative and context for the alleged inculpatory admissions; and

(j) lastly, the jury will be
    reminded, both during the course of the trial and at its conclusion, as to the
    proper use of this evidence and specific instructions regarding what it cannot
    be used for. As I set out in my ruling in Application #3, our entire jury
    system is premised on the fact that jurors are intelligent and capable of
    following the instructions of the trial judge.

[97]

The
    trial judges editing was a fact-specific exercise necessitating a weighing of
    probative value and potential prejudice. The editing decisions were driven in
    large part by the prior decision that the statements made to the UCO had
    sufficient reliability to be admissible despite their potential for prejudice. Editing
    decisions such as these are owed substantial deference: see
R. v.

Largie
,
    2010 ONCA 548, 101 O.R. (3d) 561, at para. 90, leave to appeal to S.C.C.
    refused, [2010] S.C.C.A. No. 119; and [2010] S.C.C.A. No. 460.

[98]

There
    is no basis for appellate intervention in the trial judges editing decisions.
    She exercised her discretion in a principled fashion in light of the
    admissibility of the statements in question. I see no error in the extensive
    and comprehensive set of factors that she listed as giving structure to her
    discretion.

D.

Use of discreditable conduct by co-accuseds counsel

[99]

Each
    counsel made liberal use of discreditable conduct by his co-accused. This was
    essential to parts of Zvolenskys and Qahwashs defences. Both testified that
    because of their experience in committing robberies with the other, each
    thought the other was committing a robbery, not a killing.

[100]

The trial judge
    told the jury of the positive uses for that evidence, but warned them
    repeatedly of the prohibited use of the evidence:

In each and every case you were specifically instructed that
    you could not reason that because of this evidence of discreditable conduct,
    that any of Mr. Cyr, Mr. Zvolensky or Mr. Qahwash is the type of
    individual who would commit murder. That is forbidden reasoning and as a matter
    of law, I instruct you that you cannot use the evidence for that purpose. As
    well, you may not use this evidence to engender hostility to or bias against
    the defendants or take it to indicate that they are somehow deserving of
    punishment.

[101]

These instructions
    were the correct ones for the trial judge to give to the jury in circumstances,
    such as those in the case at hand, where an accused introduces evidence of the
    bad character of a co-accused to raise a reasonable doubt as to his or her own guilt:
    see
R. v. Sheriffe
, 2015 ONCA 880, 333 C.C.C. (3d) 330, at paras.
    67-68, leave to appeal to S.C.C. refused, [2016] S.C.C.A. No. 299. They correctly
    balanced the interests of the co-accused in making full answer and defence
    while still being protected from prejudicial propensity evidence.

E.

Failure to instruct on second degree murder

[102]

Zvolensky submits
    that the trial judge erred in failing to leave second degree murder to the
    jury. He does not suggest that second degree murder was available in this case,
    where the killing was clearly an execution, but submits that the manner in
    which the trial judge charged the jury was prejudicial because of the
    following:

·

The charge removed the burden on the Crown to prove murder before
    it could prove first degree murder;

·

It obscured the crux issue of the requisite intent for murder;
    and

·

It left no room for a
W.(D.)
instruction tailored
    specifically to the issue of intent: see
R. v. W.(D.)
, [1991] 1 S.C.R.
    742, at p. 758.

[103]

The Crowns
    position at trial was that Zvolensky and Qahwash were each responsible for the
    killing, either as the shooter or an aider. It submitted that the jury did not
    have to determine which role each performed, as long as they were satisfied
    beyond a reasonable doubt that the accused they were considering was either a
    shooter or aider. The trial judge instructed the jury,

If you are satisfied beyond a reasonable doubt that one or the
    other of them [Qahwash and Zvolensky] personally shot Nadia Gehl, and the other
    intentionally assisted him, knowing that he intended to shoot her then you must
    convict both of them even though you are not sure who was the shooter and who
    was the aider and abettor.

This instruction was legally correct and is not
    challenged on appeal.

[104]

The general
    outline of the trial judges description of the elements of the offences was as
    follows:

·

Shooter:

·

Caused death

·

Caused death unlawfully

·

Had the state of mind for murder

·

The murder was planned and deliberate

·

Aider:

·

The shooter caused death

·

That death was caused unlawfully

·

The shooter had the state of mind for murder

·

The aider helped the shooter

·

The aider intentionally helped the shooter kill the victim

·

When the help was provided, the aider knew of the shooters
    intention to commit a planned and deliberate murder

[105]

The trial judge
    gave a corresponding instruction for an abettor to deal with Cyrs alleged
    role.

[106]

In response to
    the evidence by each of Qahwash and Zvolensky that they had inadvertently aided
    the shooter, but intended only to help the other commit a robbery, the trial
    judge left manslaughter to the jury outlining these essential elements:

·

The shooter caused death

·

He did so unlawfully

·

The other did something that helped the shooter

·

The help was provided with the intention of helping the shooter
    commit a robbery or other unlawful act other than murder

·

The aider believed that the shooter intended to commit a robbery
    or other unlawful act, other than a murder

·

The robbery or other unlawful act other than murder was
    objectively dangerous

[107]

The trial judge
    also left the possibility of an outright acquittal with the jury.

[108]

The trial judge
    made it clear to the jury that it had to find that the Crown had proven the
    intent required for murder beyond a reasonable doubt:

I want to make it clear, if I already havent, that the Crown
    must prove each of the essential elements beyond a reasonable doubt. You must
    be satisfied beyond a reasonable doubt that a defendant had the state of mind
    required for murder, that is, if a defendant is the shooter, the Crown must
    prove beyond a reasonable doubt that he meant to kill Nadia Gehl, and if he did
    not mean to kill Nadia Gehl, the defendant committed manslaughter.

If a defendant is an aider you must be satisfied beyond a
    reasonable doubt that when the help was provided he intended to help the
    shooter and he knew the shooters intention was to commit a planned and
    deliberate murder. If you are not satisfied of this beyond a reasonable doubt
    you would then consider the question of manslaughter. If a defendant is an
    abettor you must be satisfied beyond a reasonable doubt that the abettor
    provided encouragement to the shooter with the intention of encouraging the
    shooter to commit a planned and deliberate murder.

So, if you are not satisfied you would then consider the
    question of manslaughter.

Again, the important principle is the issue of intention. So, I
    want you to understand that if you do not find beyond a reasonable doubt that
    there was intention necessary then you would consider the issue of
    manslaughter. You would not go on to consider whether or not it was a planned
    and deliberate murder.

[109]

She told the
    jury that the issue was who knowingly participated in this murder and the
    degrees of participation. She told the jury Zvolenskys position that he was
    an unwitting participant who was not intentionally involved in the murder.

[110]

The trial judge
    gave a
W.(D
.
)
instruction:

In this case you heard the defendants testify. I want to give
    you some special instructions as to how to deal with the evidence of an accused
    witness.

If you believe the evidence of a defendant, that he did not
    commit the offence charged, you must find him not guilty of that offence.

Even if you do not believe his evidence, if it leaves you with
    a reasonable doubt about his guilt, you must find him not guilty of that
    offence.

Even if his evidence does not leave you with a reasonable doubt
    of his guilt, you may convict him only if the rest of the evidence that you do
    accept proves his guilt of the offence beyond a reasonable doubt.

[111]

Zvolensky argues
    that the trial judge should have given a
W.(D
.
)
instruction
    focused specifically on the issue of intent. He submits that, by the end of the
    trial, each of Qahwash and Zvolensky had tacitly admitted their culpability for
    manslaughter, as each said that they only intended to help the other commit a
    robbery.

[112]

In this case,
    there was no air of reality to second degree murder. In my view, it was not
    necessary for the trial judge to charge the jury separately for that offence. As
    noted in
R. v. Rodgerson
, 2015 SCC 38, [2015] 2 S.C.R. 760, at para.
    43, trial judges should avoid unnecessary, inappropriate and irrelevant legal
    instruction of a kind that might well divert the jurys attention from the
    primary disputed issues in the case. See also
R. v. Doucette
, 2015
    ONCA 583, 328 C.C.C. (3d) 211, at paras. 24-25.

[113]

The trial
    judges charge made it clear that the Crown had to prove the intent required
    for murder beyond a reasonable doubt. While the trial judge could have given a
W.(D.)
charge focused particularly on the intent required for murder, she was not
    required to do so in the specific circumstances of this case, where the jury
    was properly instructed in accordance with
W.(D.)
in general terms
    that encompassed the entirety of the Crowns case against the appellants. In
    light of this all-embracing
W.(D.)
charge, the jury could not have
    misunderstood the correct burden and standard of proof to apply when dealing
    with an accuseds own testimony and the other evidence led at trial.

F.

Zvolenskys argument that cross examination by the Crown and Cyrs
    counsel made his trial unfair

[114]

When Cyrs
    counsel cross-examined the UCO, he highlighted statements made by Cyr about
    Zvolensky that were already in evidence, likely for the purpose of emphasizing
    for the jury extracts from Cyrs statement to the UCO that would fit into the
    narrative Cyr would relate in his testimony in chief.

[115]

During Cyrs
    examination-in-chief, he testified that the content of his admission to the UCO
    on August 1, 2009  that he had arranged for Zvolensky and Qahwash to kill his
    wife  was derived from an earlier meeting in February with Zvolensky in which
    Zvolensky told Cyr he had killed Gehl and blackmailed Cyr. Crown counsel
    closely cross-examined Cyr with a view to demonstrating that the blackmail
    story was not credible and went through the August 1 description of the killing
    in detail.

[116]

Zvolensky
    submits that this series of events during the trial had the effect of making
    Cyrs description to the UCO of Zvolenskys role in the killing admissible for its
    truth.

[117]

I do not accept
    this submission. Crown counsel was entitled to probe and test Cyrs evidence. Counsel
    for Cyr was entitled to highlight aspects of the UCOs evidence that might be
    helpful to his client.

[118]

The trial judge
    warned the jury at least five times that the out-of-court statements were
    admissible only against their speaker. In any event, Cyr testified at trial
    that Zvolensky told him that he had killed Gehl. This statement was admissible
    for its truth as a party admission: see
R. v. Evans
, [1993] 3 S.C.R.
    653, at p. 664; and
R. v. Foreman
(2002), 62. O.R. (3d) 204 (C.A.), at
    para. 37.

G.

The Rule in
Browne v. Dunn

[119]

Cyr and Qahwash
    both argue that the trial judge erred in her treatment of a
Browne v. Dunn
issue. Cyr submits on appeal that there was no breach of the rule and that he
    was prejudiced by the trial judges remedy. Qahwash says there was a violation
    of the rule that should have resulted in a mistrial. The Crown submits that the
    remedy chosen by the trial judge was a reasonable exercise of her discretion
    and that there is no basis to intervene.

[120]

Qahwash was
    first on the indictment, followed by Zvolensky, then Cyr. Qahwash gave his
    evidence before the others testified. His evidence was that Zvolensky admitted to
    killing Gehl. He said that he inadvertently helped Zvolensky by giving Zvolensky
    the gun, thinking Zvolensky was going to commit a robbery, not a murder.

[121]

Cyrs counsel
    asked Qahwash in cross-examination whether he had some advantage over Cyr that
    resulted in Qahwash getting an interest in Canoeing the Grand. Qahwash said
    that it might have something to do with the fact that, according to him, Zvolensky
    had killed Gehl for Cyr, and that he, Qahwash, was keeping the killing a secret.

[122]

Qahwash closed
    his case. Zvolensky testified that Qahwash killed Gehl and that he had
    inadvertently helped him, thinking that Qahwash was committing a robbery. The
    blackmail theory first came to light during Cyrs cross-examination of Zvolensky,
    after Qahwash had finished cross-examination of Zvolensky.

[123]

Counsel for Cyr
    asked Zvolensky if, on February 6, 2009, he told Cyr that he and Qahwash killed
    Gehl. He asked if Qahwash told Zvolensky that as long as Ron was a friend,
    your friends would make sure the weapon wouldnt turn up in any place that Ron
    wouldnt like. He suggested to Zvolensky that he told Cyr that no one would
    believe him if he snitched you and Nashat up. Zvolensky interpreted the
    questions as a suggestion that me and Nashat killed Nadia, went to Ron and
    told him about it, and tried to blackmail him into buying Canoeing the Grand
    with us. Zvolensky rejected all of these allegations.

[124]

To this point,
    there was no evidence supporting Cyrs counsels suggestion of a blackmail plot
    in the questioning. Before Cyrs counsels cross-examination was finished, counsel
    for Zvolensky asked the trial judge for an instruction that the questions of
    counsel were not evidence. Counsel for Qahwash indicated he would be bringing a
    mistrial application because the suggestion of a blackmail plot put by Cyrs
    counsel and rejected by Zvolensky, was not made to Qahwash.

[125]

To this point,
    counsel for Cyr had not succeeded in adducing evidence of an alternate version
    of events which he had failed to put to Qahwash.

[126]

Cyrs counsel
    continued his cross-examination of Zvolensky and elicited evidence that Qahwash
    and Zvolensky had discussed how the UCO mentioned Cyrs situation on July 23
    and agreed to go see Cyr to discuss this on July 30.

[127]

Cyrs counsel
    completed his cross-examination of Zvolensky and the trial judge instructed the
    jury that the questions lawyers asked were not evidence.

[128]

The trial judge
    noted in her (unreported) ruling on this issue that Cyr testified that he never
    spoke to Qahwash about the blackmail:

There is no doubt that in cross-examination, Mr. Cyr made it
    very clear that he never discussed the murder of Nadia Gehl with Mr. Qahwash
    and Mr. Qahwash never said anything about the blackmail plot to Mr. Cyr. All
    information about the murder of Nadia Gehl and the blackmail plot came from Mr.
    Zvolensky including any role Mr. Qahwash may have played. At the same time,
    however, Mr. Cyr also made it very clear that he believed Mr. Qahwash was
    involved in the murder, which in my view, includes the blackmail because as far
    as Mr. Cyr was concerned, both were inextricably bound together.

[129]

Counsel for Qahwash
    and Zvolensky cross-examined Cyr fully about his blackmail evidence.

[130]

The trial judge
    noted that there was some evidence from Cyr from which an inference could be
    drawn that Qahwash was involved with Zvolensky. On February 6, 2009 (the date
    when the blackmail plot was allegedly revealed by Zvolensky to Cyr), Qahwash
    told Cyr that Zvolensky wanted to talk to him outside. Further, Qahwash was
    present at the July 30 meeting when the destruction of the gun was discussed. The
    trial judge concluded that some incriminatory inference might be drawn from Zvolenskys
    evidence on cross-examination about the discussion between him and Qahwash on
    July 23 about the UCOs references to Cyr. She concluded that these matters
    should have been put to Qahwash on cross-examination by Cyrs counsel and that
    there had been a violation of the rule in
Browne v. Dunn
.

[131]

The trial judge
    reminded the jury, after Cyrs evidence, that nothing Cyr said that Zvolensky
    said about Qahwash was admissible against Qahwash.

[132]

The trial judge
    concluded that the appropriate remedy was a charge to the jury dealing with
    this issue, and she refused Qahwashs application for a mistrial. She stated:

The right of Mr. Qahwash to suggest that Mr. Cyr had the
    opportunity to fabricate his evidence after hearing Mr. Qahwash testify is
    intertwined with the application of the rule
Browne v. Dunn
. As Borins
    J.A. stated in
R. v. Marshall
: As the
Browne v. Dunn
issue
    was a live one in this case, in my view, the jury properly could have taken the
    failure to cross-examine into consideration in determining whether the
    appellant had concocted his evidence.

Although Mr. Qahwash was deprived of the opportunity to
    cross-examine Mr. Zvolensky with respect to the answers he gave regarding Mr.
    Cyrs theory of the murder and the blackmail plot, does not mean that the trial
    has been rendered unfair to Mr. Qahwash. Mr. Qahwash did, in fact,
    extensively cross-examine Mr. Zvolensky with respect to his involvement
    and Mr. Qahwashs theory of the murder.

It is also important to note that Mr. Zvolensky denied, on
    behalf of himself and Mr. Qahwash, all allegations of involvement as suggested
    by Mr. Cyr. Mr. Zvolensky was steadfast in his assertions of innocence despite
    crossexamination by his co-defendant including Mr. Qahwash and the Crown.
    Again, although the court can never say with certainty what Mr. Zvolensky would
    say if he was further cross-examined by Mr. Qahwash, given his vigorous denials
    of any involvement, it is unlikely that he would suddenly recant, acknowledge
    he perjured himself, and admit his involvement. Mr. Zvolenskys evidence
    regarding what occurred at the two meetings with Mr. Qahwash is not lengthy and
    it will be easy for the court to direct the jury that that evidence cannot be
    used against Mr. Qahwash in deciding his verdict.

Mr. Zvolensky, on the other hand, had a full opportunity to
    respond to the allegations put to him and I do not see how he is prejudiced in
    any significant manner as a result of the failure to put certain questions to
    Mr. Qahwash.

I am satisfied that a proper jury instruction will take care of
    any perceived unfairness to any of the defendants. This is not one of the
    clearest of cases which demands a mistrial. The application for a mistrial is
    dismissed. [Citations omitted.]

[133]

The trial judge
    dealt with this issue in her charge to the jury:

Mr. Qahwash did not have the opportunity to tell you his
    response to Mr. Cyrs version of events or provide any evidence to you that
    might assist you in terms of deciding if what Mr. Cyr said was the truth.
    However, Mr. Cyr should not be held responsible for what may have been a
    tactical decision on the part of his counsel.

When considering the evidence of Mr. Qahwash and the evidence
    of Mr. Cyr, you may take into account any instance where Mr. Qahwash did not
    have the opportunity to give his version of the events in response to the
    version of the events related you by Mr. Cyr.

This is a principle of general fairness and applies to all
    witness.

As well, in response to questions put to him by Mr. Bains,
    Mr. Zvolensky gave answers regarding the meeting he said he had with Mr.
    Qahwash after July 23
rd
, and the meeting of July 30
th
.
    Those answers included things that he alleged were said and done by Mr.
    Qahwash. As Mr. Qahwash had no opportunity to respond to this evidence, through
    no fault of Mr. Zvolensky, you may not consider anything Mr. Zvolensky
    said about Mr. Qahwashs participation at these meetings or what occurred at
    these meetings when you consider the verdict for Mr. Qahwash.

(1)

Analysis

[134]

The rule in
Browne
    v. Dunn
(1893), 6 R. 67 (H.L.), addresses the problem where a witness is
    contradicted by other testimony, but where opposing counsel have not put the
    alternate version of events to that witness in cross-examination.

[135]

The application
    of the rule was discussed by Watt J.A. in
R. v. Quansah
, 2015 ONCA 237, 125 O.R. (3d) 81, leave to appeal to
    S.C.C. refused, [2016] S.C.C.A. No. 203.
I extract the following
    principles from that discussion:

·

The decision as to whether there was a breach of the rule, and if
    so what the remedy should be, depends on the circumstances of each case and attracts
    substantial deference: paras. 80, 118.

·

Counsel need not confront the witness with every scrap of
    contradictory evidence, but should do so on matters of substance that a witness
    has not had an opportunity to explain: para. 81.

·

In some cases, it is apparent that the cross-examining counsel
    does not accept the witnesss version of events. Where the confrontation is
    general, known to the witness and the witnesss view on the contradictory
    matter is apparent, there is no need for confrontation and no unfairness to the
    witness in any failure to do so: para. 82.

·

Where the subjects not touched in cross examination but later
    contradicted are of little significance in the conduct of the case and
    resolution of critical issues of fact, the failure to cross examine is likely
    to be of little significance to an accuseds credibility: para. 85.

[136]

Watt J.A. stated
    at para. 117 that the remedy for a violation of the rule in
Browne v. Dunn
,
    if any, depends on many factors, including:

·

The seriousness of the breach;

·

The context of the breach;

·

The timing of the objection;

·

The position of the offending party;

·

Any request to permit recall of a witness;

·

The availability of the impugned witness for recall; and

·

The adequacy of an instruction to explain the relevance of
    failure to cross examine.

[137]

I conclude that
    there was no unfairness to either Qahwash or Cyr or any reversible error in the
    manner in which the trial judge handled this issue. The trial judges decision
    that there was a breach of the
Browne v. Dunn
rule is entitled to
    deference.

[138]

It was of
    marginal importance in this trial that Qahwash told Cyr on February 6, 2009
    that Zvolensky wanted to talk to him, that Zvolensky and Qahwash discussed what
    the UCO had to say about Cyr and that Qahwash was with Zvolensky but not part
    of the discussion when Zvolensky went to discuss this with Cyr on July 30. It
    was clear after Qahwashs cross-examination that his position was that he was
    not part of any blackmail plot and that he said Zvolensky was the killer. Qahwash
    and Zvolensky had been very close friends. It is not surprising that they would
    discuss what the UCO had to say about Cyr or the plan to kill the UCOs
    ex-wife. That they were sometimes together, as they were on July 30, would not
    be surprising and of little prejudice, given Cyrs evidence that Qahwash had
    never spoken to him about the blackmail. By the end of the trial, on the
    evidence of both Zvolensky and Qahwash, they were together the night before the
    murder, on the morning of the murder, had both handled the gun and each said
    they had unwittingly helped the other kill Gehl.

[139]

Cyr, on the
    other hand, gave no admissible evidence inculpating Qahwash in the murder or
    the blackmail. The instruction to the jury that they should take into account
    Cyrs counsels failure to confront Qahwash in cross-examination would not have
    undermined Cyrs evidence about Qahwash or in any significant other respect.

H.

The coded text
MESSAGE

[140]

Cyr sent a text message
    to Zvolensky at 4:44 p.m. on Sunday, February 1, 2009, the day before the
    murder. It read, can you play ball on tue. The game is at 8:40. Zvolensky did
    not reply to this text. At trial, Qahwash called the captain of the basketball
    team. He testified that he had mailed two team schedules to Cyr, the first on
    December 28, 2008 and the second on January 13, 2009. Neither schedule showed a
    game on the Tuesday. The games that were scheduled started at 9:15 p.m. and
    10:15 p.m. Cyr said he had a handwritten schedule that he had consulted when he
    sent the text message to Zvolensky. He said he had tickets to a hockey game on Tuesday,
    February 3 and believed there was a basketball game the same night. Gehl was
    shot the day after the text was sent, at 8:45 a.m. Her work schedule was
    irregular, and there was no obvious way Zvolensky would know when she was on
    her way to work.

[141]

On appeal, Cyr
    submits that the trial judge ought to have instructed the jury that the Crowns
    theory that the Sunday text was a coded message was speculative. Cyr could have
    mistakenly believed there was a game on the Tuesday. He may not have read the
    attachments to the emails.

[142]

The trial judge
    reviewed this evidence and reminded the jury:

Once again, you will consider the texts from Mr. Cyr to Mr.
    Zvolensky on February 1st and the evidence of both Mr. Cyr and Mr. Zvolensky
    about the meaning of that text, along with the evidence of David Bonnell.

[143]

Earlier in the
    charge, she told the jury:

You are entitled to come to common sense conclusions based on
    the evidence that you accept. You must not speculate, however, about what
    evidence there might have been or permit yourselves to guess or make up
    theories without evidence to support them.

You may draw inferences from the evidence which you accept or
    from the lack of evidence. You may not speculate about conclusions for which
    there is no basis in the evidence

[144]

Cyr did not
    object at trial to this part of the jury charge. The competing inferences to be
    drawn were plain, and there was no need for the trial judge to go further.

I.

Adoptive admissions

[145]

Qahwash argues
    that the trial judge erred in instructing the jury on admissions adopted by
    silence in relation to parts of the meeting between the UCO and Zvolensky and Qahwash
    after Cyrs arrest. He submits that the trial judge should have excluded the
    proposed adoptive admissions

[146]

Qahwash was
    present at and participated in this meeting. Many of his comments were
    monosyllabic. At times he said nothing. The UCO testified that both Zvolensky
    and Qahwash were engaged in the conversation. Some of the no responses given
    by Qahwash were equivocal. For example, the UCO officer raised the issue of
    whether police knew about Cyrs relationship with Zvolensky and had shown Zvolenskys
    picture to Cyr:

UCO:          Like
    I dont know why I think they had your picture in there like he said just to
    see if hed lie about it but

Zvolensky:  Yeah.

UCO:          What about you?

Qahwash:    No.

Zvolensky:  Theres
    no connection to him at all man. He doesnt even call him

UCO:          No.

Zvolensky:
    so they dont even check his business. You gotta distance yourself

[147]

Other comments
    were more suggestive of Qahwashs participation in the killing. For example,
    when the group discussed whether Cyr would talk to police about them both, the
    following exchange occurred:

UCO:          But
    you guys are absolutely one hundred percent convinced that he wont ice you
    two?

Zvolensky:  No man

UCO:          Youre good? Okay

Zvolensky:  Hes hes fuck hes a rock man.

Qahwash:    No way man.

[148]

There was no
    direct assertion made that Qahwash participated in the killing.

[149]

When Qahwash
    testified, he explained why he did not specifically deny participation or
    appeared to agree. He said the conversation was really just between the UCO and
    Zvolensky and that he was not always paying attention. Zvolensky had told him
    just to go along with whatever was said and told him to keep his mouth shut.

[150]

The trial judge
    correctly instructed the jury as to the elements of an adoptive admission (see
R.
    v. Robinson
, 2014 ONCA 63, 118 O.R. (3d) 581, at paras. 48-58):

If a statement is made by another person, be it a co-defendant,
    or someone else, in the presence of and adopted by one of the defendants, that
    is called an adoptive admission.

There is only one adoption to the extent that the defendant
    assents to the truth of the statement expressly or impliedly. Assent may be
    inferred from the defendants words, actions, conduct, or demeanour. Assent may
    also be inferred from the defendants silence, or an equivocal or evasive
    denial. Where the circumstances give rise to a reasonable expectation of reply,
    silence may constitute an adoptive admission where a denial would be the only
    reasonable course of action expected.

Where silence is the manner of alleged adoption, there are
    several conditions that must be met. First the defendant must have heard the
    statement. Second, the statement must be about a subject matter of which the
    defendant would be expected to reply, as for example, a child. Third, the
    defendant must not have been suffering from any disability or confusion, and,
    lastly the person must not be someone to whom the defendant would be expected
    to reply, as for example, a child.

It is for you to decide whether a defendant, by his conduct in
    remaining silent, adopted the allegations made by the Undercover Officer in
    their presence. You may only use the allegations made by the Undercover Officer
    as true to the extent that you find they were adopted by a defendant. If you
    find that by his silence, a defendant did not assent to these allegations, then
    they have no value as evidence and should be entirely disregarded.

.

[151]

Here, where Qahwash
    spoke about thirty times in the course of an eighteen-minute conversation, and
    where there was no direct accusation or assertion that Qahwash had participated
    in the killing, the trial judge was not required to parse out segments of the
    meeting where Qahwash was quiet and treat those parts differently. The jurys
    task here was to consider what Qahwash said in the context of the entire
    meeting. The jury listened to the conversation and was able to assess his
    demeanour and the degree of his participation in the conversation and whether
    he tacitly acknowledged participation with Zvolensky in the killing of Gehl.

[152]

Qahwash relies
    on
Robinson
to support his argument that the portions of the meeting
    where Qahwash was silent should have been excised from the evidence placed
    before the jury. However,
Robinson
is distinguishable. In
Robinson
,
the Crown had provided no evidentiary
    basis that the accused were even part of the conversation in which the
    admissions they were said to have adopted by their silence were made.

[153]

Here, the
    legally correct charge on adoptive admissions caused no prejudice to Qahwash.

J.

Quahwashs pre-trial silence

[154]

Qahwash submits
    that the trial judge erred by allowing Zvolensky to cross-examine Qahwash about
    his failure to tell police before trial that Zvolensky was the killer, as he
    had testified at trial. Qahwash testified that he kept silent for two-and-a-half
    years because he was waiting for Zvolensky to take responsibility for the
    killing.

[155]

Qahwash submits
    that Zvolensky invited the jury to infer his guilt from his pre-trial silence. He
    submits that his pre-trial silence could not be used to assess his credibility
    because he testified that he kept silent on the advice of counsel. Counsel for
    Zvolensky expressly put it to Qahwash and later argued to the jury that if Qahwash
    was not the shooter, he would have told police. He submits that the jury was
    left with only two alternatives: Either Qahwash did not say anything because
    he was the shooter; or he did not say anything because he was acting on the
    advice of counsel. Neither goes to credibility.

[156]

I do not accept
    that the jury was left with these simple alternatives. It was open to the jury
    to consider Qahwashs pre-trial silence in considering the credibility of his
    evidence that Zvolensky was the shooter.

[157]

As
the Supreme Courts decision in
Crawford
[1995] 1 SCR 858 makes clear, at para. 38, the Crown cannot rely
    on pre-trial silence as evidence of guilt, but a co-accused can attack the
    credibility of another accused by referring to the other accuseds pre-trial
    silence. See also
R. v. Valentini
(1999), 132 C.C.C. (3d) 262 (Ont.
    C.A.), at p. 279; and
R. v. Akins
(2002), 59 O.R. (3d) 546 (C.A.), at
    para. 13.

[158]

Counsel for Zvolensky
    respected this boundary when questioning Qahwash:

Q.      I put
    it to you, sir, that when it comes time for this jury to consider your
    credibility on that issue, that that just doesnt hold up? If you truly werent
    the shooter, even if there was some code of silence amongst your group, you
    would have said to that officer at least once over the course of that seven
    hour interrogation, in order to relieve the anxiety of your family, your
    friend, Julie, so that the officer could tell them as he offered to do, I
    wasnt the shooter?

A.      I was
     I was advised by the duty counsel not too say anything, so I didnt say
    anything.

Q.      Right. Not even, I wasnt the shooter?

A.      Anything.
    Anything you say could be used against you, so.

[159]

The trial judge
    correctly instructed the jury on this issue:

You heard evidence that Mr. Qahwash did not give a statement to
    the investigating police officers, or answer questions the police asked him
    after his arrest and prior to the trial. It is very important that you
    understand what use you may make, and what use you must not make of this
    evidence.

As a person charged with an offence, a defendant has the
    absolute right to remain silent on and after arrest. A defendant does not have
    to speak to the police. He does not have to answer any police questions.

The right to silence (or, to remain silent) is fundamental, as
    is the right to choose when and how to exercise it. Since these rights are
    fundamental, the person who exercises them, has the right  Im sorry  has the
    right to have his exercise of them not used in any way in your decision about
    whether he committed the offence with which he is charged, or any other offence.
    In other words, you must not use the defendants exercise of his right to
    silence to help you decide whether Crown counsel have proven his guilt of the
    offence charged or any other offence beyond a reasonable doubt.

Three persons are charged and on trial together here. Any
    person charged with an offence has the right to make full answer and defence to
    that charge. Amongst other things, he has the right to challenge the testimony
    and the credibility of any witness, including any other person charged who
    testifies at trial.

To challenge the testimony or credibility of Mr. Qahwash,
    Mr. Zvolensky and Mr. Cyr raised the fact that Mr. Qahwash did not tell the
    police on or after his arrest, what he said in the witness box here.

Accordingly, you may consider the evidence about Mr. Qahwashs
    pre-trial silence in assessing this credibility and helping you to decide the
    case of Mr. Zvolensky and Mr. Cyr. In deciding how much or little you will
    believe of or rely upon the testimony of Mr. Qahwash in deciding this case, you
    may take into account that he failed to provide the version of events he told
    you to police on or after arrest. But his failure to provide this version to
    the police may be due to other factors. For example, counsel routinely advise
    clients to remain silent, and in this case, Mr. Qahwash repeated that he was
    not answering any questions on the advice of duty counsel.

If you conclude that the defendants failure to tell the police
    what he told you was for some reason relating to the accuracy or truthfulness
    of the story, you may take that into account in helping you decide how much or
    little you will believe of or rely upon what he told you from the witness box
    when deciding the case for Mr. Zvolensky and Mr. Cyr.

On the other hand, if you decide that Mr. Qahwashs failure to
    tell the police what he told you was for some other reason, for example, the
    advice of counsel, then you must not use that failure in deciding or helping
    you decide how much or little you will believe of or rely on what he said in
    the witness box in deciding this case.

[160]

The trial judge
    highlighted for the jury that if they concluded that Qahwash did not speak to
    police because of the advice of counsel, then his silence could not be used to
    assess his credibility. See also
Crawford
, at para. 38.

[161]

The trial judge
    appropriately balanced the interests of Qahwash and Zvolensky, doing so in
    accordance with the correct approach to dealing with a co-accuseds pre-trial
    silence established in the controlling authorities. There is no basis to
    intervene.

K.

ZvolenskyS denial to police that he was the killer

[162]

Qahwashs
    counsel suggested in cross-examination of Zvolensky that Zvolensky had
    fabricated his evidence after hearing Qahwashs evidence and reading the
    disclosure:

Q.      Prior
    to testifying you had the opportunity to hear Nashat Qahwashs evidence?

A.      Youre right.

Q.      Youve
    read the disclosure very carefully in this case?

A.      Ive looked through the disclosure.

Q.      Youve
    looked through it or youve learned it over the last three years very
    carefully?

A.      Ive
    looked through the disclosure. I, I know it pretty good. Im part of the case.

Q.      Right.
    I would think maybe you glanced over it more than just carefree. Youre facing
    first degree murder, right?

A.      No, Ive looked through it, yes. Youre right.

Q.      You
    were either present at the scene or on your version, very near the scene of the
    shooting of Nadia Gehl, correct?

[163]

The Crown
    accepts that counsel for Qahwash had in substance suggested that Zvolensky had
    a motive to fabricate as soon as he was arrested and that Zvolensky used
    disclosure about unrelated kidnapping charges against Qahwash to fabricate an
    account that Cyr arranged for Qahwash to kill Gehl.

[164]

Zvolensky sought
    at trial to rebut this allegation by introducing statements made by Zvolensky
    on the day of his arrest. When asked by police at that time if he was the
    driver or the shooter, he responded repeatedly, Ive never shot anyone in my
    life. He said that he would not give further details, on the advice of
    counsel. He said he had no reason to kill Gehl, that she was a wonderful person
    and that he had only a workplace and basketball relationship with Cyr.

[165]

These statements
    were made before he had access to disclosure. Zvolensky concedes that his co-accused
    was entitled to make the argument that he used disclosure to fabricate trial
    evidence, but submits that he should be able to rebut these allegations by
    adducing evidence of prior consistent statements.

[166]

The issue was
    whether Zvolensky fabricated his trial evidence that Qahwash was the shooter. Zvolensky
    was entitled to present evidence of prior statements that rebut the allegation
    of his fabrication:
R. v. Ellard
, 2009 SCC 27, [2009] 2 S.C.R. 27, at
    paras. 31-33. However, the difficulty is that none of the pre-trial statements
    made by him establish that he said at that time that Qahwash was the shooter.

[167]

In any event,
    significant aspects of Zvolenskys statements to police were inconsistent with
    his trial evidence. His bald denials would not reasonably, in this context, have
    had any impact on the jury.

L.

The trial judges error about the use of Qahwashs statement

[168]

When the trial
    judge reviewed the evidence relating to Cyr, she summarized his evidence about
    the blackmail plot and then told the jury:

You will consider the evidence of Mr. Qahwash, who testified
    that Mr. Zvolensky confessed to the murder of Nadia Gehl in the behest of Mr.
    Cyr, and for insurance money down the road.

[169]

This was legally
    incorrect. Qahwashs evidence of Zvolenskys confession was admissible against
    Zvolensky but not against Cyr:
R. v. McFall
, [1980] 1 S.C.R. 321, at
    pp. 338-339.

[170]

No one objected
    to this aspect of the charge. The trial judge warned the jury on many occasions
    that confessions or admissions were admissible only against the speaker. I am
    satisfied that this one slip which no one noticed would not have had any impact
    on the jury deliberations.

M.

Crown Closing

[171]

Each of the
    three appellants sought a mistrial after the Crowns closing submissions to the
    jury. The trial judge refused, and the appellants renew this argument on appeal.
    They submit that a new trial is required on this ground.

[172]

The appellants
    submit that the Crowns submissions were inflammatory and invited the jury to
    engage in a prohibited line of reasoning.

[173]

Qahwash and Zvolensky
    submit that when the trial Crown (not Crown counsel on appeal) told the jury
    they should look at the evidence globally, this amounted to an invitation to
    use Cyrs confession to the UCO against them. I do not accept this submission. Crown
    counsel gave examples to the jury explaining how some pieces of evidence,
    viewed in isolation, might be meaningless, such as Cyrs call to his wife to
    wake her up on the morning she was killed. But the combined evidence about the
    text Cyr sent to Zvolensky the previous day, the team captains evidence that
    there was no game on the Tuesday, the failure of Zvolensky to respond to the
    text, his immediate communications with Qahwash, and Zvolensky and Qahwash
    being together on the morning of the killing, at a time when they would
    normally be sleeping, cast the Cyr call to his wife in a different light.

[174]

The Crown did
    not invite the jury to use Cyrs confession to the UCO against Zvolensky or Qahwash.
    Cyrs evidence at trial that Zvolensky confessed to him was admissible. As a
    precaution, the trial judge gave the jury an additional warning:

You must not consider anything Mr. Cyr said in this
    conversation [the statement to the UCO] in reaching your verdict for Mr. Zvolensky
    or Mr. Qahwash  That is impermissible. This evidence is not admissible against
    Mr. Zvolensky or Mr. Qahwash. If in the course of his address [Crown counsel]
    inferred in any way that you could consider this evidence in determining the
    verdict for Mr. Zvolensky or Mr. Cyr, [misnomer corrected on recharge], I want
    to make sure you understand that it is not permissible.

[175]

The trial judge
    gave the same warning many times, in mid-trial instructions, in final
    instructions and in the recharge.

[176]

Qahwash and Zvolensky
    also submit that the Crown invited the jury to speculate when he suggested to
    the jury that there must have been both a driver and a lookout. This was an
    inference the jury could reasonably draw. The execution-style killing occurred
    in broad daylight, close to a busy street and a bus stop.

[177]

Qahwash submits
    that the Crown invited the jury to convict him simply because of his
    association with Zvolensky. Here, the close relationship between Qahwash and Zvolensky
    was relevant to the issues at trial.

[178]

Qahwash submits
    that the Crown invited the jury to conclude that he had some unspecified motive
    to participate in the killing. The Crown told the jury that he did not have to
    prove motive and that only Qahwash knew why he participated. Qahwashs counsel
    pointed to the absence of any proof of a motive, and the trial judge told the
    jury there was no evidence of motive on Mr. Qahwashs part.

[179]

There are some
    parts of the Crowns submissions that would have been better worded differently
    or avoided.

[180]

The first
    related to the presumption of innocence:

These men, these three men they come here and they are cloaked.
    They are cloaked in the presumption of innocence. But at the time you took it
    off each one of them, only you can take that off. These three men are guilty.
    They are guilty as charged for one reason and only one reason that the evidence
    you have heard over the course of months now leaves no room for any other
    conclusion.

[181]

Although the
    trial judge said she certainly did not take [the trial Crowns] submissions in
    the fashion that the defence are describing, she took the precaution of
    telling the jury the following:

[I]n case there was any misunderstanding when Mr. Kelly
    referred to the cloak of the presumption of innocence the Crown does not use
    this phrase in any way to derogate from the presumption of innocence. This
    legal principle is enshrined in our criminal justice system. It is critical
    that you understand it and adhere to it.

[182]

It is also
    argued that the trial Crown denigrated the role of defence counsel:

But there is something about this case that isnt simple. It
    isnt simple at all. What isnt simple is that the three defendants stories
    and I use the word stories on purpose to suggest fiction. They are not true.
    Their stories are the only way these men could attempt to navigate around what
    is really a mountain of evidence against them. Their stories are convoluted and
    we will talk about why. They are complicated. They are illogical and their
    actions just dont match. When we start looking at each of them, and we will,
    Im going to suggest to you they make no sense internally. They could not even
    possibly be true. And each lawyer for each of the defendants stands and says
    not guilty for my client, please, and Im paraphrasing.

Now you cant find these men guilty because I make the
    submission that you should. You sit independent of the Crown. You sit
    independent of the defendants. Youre judges. You dont do anything because a
    lawyer says you should. What you do is you consider the evidence and you act on
    the evidence, thats what you do.

[183]

The appellants
    submit that the trial Crown improperly told the jury to consider their duty to
    community and the communitys reaction:

As you know I have suggested throughout this, that these three
    men are men you should find guilty of first degree murder. But we need to at
    least recognize something, because jurors dont come out of murder trials
    feeling happy. This is not happy. You see you swore you would deliver a true
    and just verdict according to the evidence, without sympathy, without prejudice
    for anybody. Mr. Bains asked Mr. Cyr stand up and you are his country. Just
    recognize something, your obligation, your oath extends to those beyond the
    people in this room, beyond merely the three men on trial. Your obligation is
    to your oath and your oath is to your community. You are impartial. You
    certainly are not working for the Crown; you sit independent. You sit
    independent of everybody in this room because you are judges. But, its the
    community; its the community that is of central concern here, because in our
    community when a crime is committed its not merely committed against those
    most immediately involved. Its committed against the community and the
    community rightly expects those who are provably guilty to be held accountable
    for the crimes they did, not for some lesser crime, for the crime they actually
    did.

[184]

The trial judge
    instructed the jury that it was to base its decision on the evidence and that
    its duty was to impartially assess the evidence without sympathy, prejudice or
    fear. Their task was to determine whether the Crown had proven the guilt of
    each of the defendants beyond a reasonable doubt.

[185]

Whether to grant
    a mistrial is a discretionary decision. Appellate intervention is appropriate
    only if the decision is clearly wrong or based on an error in principle:
R.
    v. (G.A.)
, 2015 ONCA 159, 124 O.R. (3d) 758, at para. 51.

[186]

The trial judge
    was in the best position to measure the impact of the Crowns submissions,
    taken in the context of the trial as a whole, and the defence submissions. The
    trial judge was in the best position to assess whether the jury would have
    interpreted the Crown submissions as denigration of the role of defence counsel
    or an invitation to consider extraneous matters. A mistrial is a remedy of last
    resort where other remedies such as corrective instructions are not enough to
    prevent a miscarriage of justice.

[187]

I am not
    persuaded that the submissions of the Crown made the trial unfair or gave rise
    to a miscarriage of justice.

N.

Was one of the jurors ineligible for jury service?

[188]

One of the
    jurors had volunteered as an auxiliary member of the Hamilton Police Service for
    about 5 years, ending eleven years before the trial.

[189]

The appellants
    submit that he was ineligible to serve as a juror and that this necessitates a
    new trial.

[190]

Section 3(1) of
    the
Juries Act
, R.S.O. 1990, c. J.3, provides that every person
    engaged in the enforcement of law is ineligible to serve as a juror, including:

without restricting the generality of the foregoing,
    sheriffs wardens of any penitentiary, superintendents, jailers or keepers of
    prisons, correctional institutions or lockups, sheriffs officers,
police
    officers
, firefighters who are regularly employed by a fire department for
    the purposes of subsection 41 (1) of the
Fire Protection and Prevention
    Act, 1997
, and officers of a court of justice [Emphasis added.]

[191]

The
Police
    Services Act
, R.S.O. 1990, c. P.15, s. 2(1) excludes an auxiliary member
    of a police force from the definition of police officer.

[192]

The plain
    meaning of s. 3(1) of the
Juries Act
, describing every person engaged,
    is that persons who are currently so employed are excluded from jury service. I
    do not accept the argument that, because only medical practitioners who are actively
    engaged in practice are  excluded by s. 3(1), this signifies a legislative
    intention to exclude those who were formerly engaged in law enforcement from
    jury service. Medical practitioners who are actively engaged in practice have
    patients to look after, and this is likely the rationale for their exclusion from
    jury duty.

[193]

The agreed
    statement of facts filed on the appeal notes that Juror #9 volunteered as an
    auxiliary member of the Hamilton Police Services between November 27, 1995 and
    May 2001. He resigned in May 2001 but did not provide any volunteer services or
    attend any training in 2001.

[194]

The agreed
    statement of facts also describes the duties of auxiliary members of the
    Hamilton Police Service:

An auxiliary member is a civilian volunteer who assists Police
    Constables in the course of their duties. Auxiliary Members of the Hamilton
    Police Service serve in uniform and are called upon to perform tasks such as
    community-based crime prevention, traffic control, or patrol duties in
    community events like parades and fairs.

[195]

There is no air
    of reality to any reasonable apprehension of bias in relation to juror #9. His
    volunteer work for the Hamilton police some eleven years earlier did not
    disqualify him from sitting as a juror on a trial resulting from an
    investigation by the Waterloo Regional Police. No member of the Hamilton police
    force testified at the trial. There is no basis to say that he ever had any
    involvement in any criminal investigation.

[196]

In any event,
    ss. 670 and 671 of the
Criminal Code
are a complete answer to this
    ground of appeal:

670. Judgment shall not be stayed or reversed after verdict on
    an indictment

(a) by reason of any
    irregularity in the summoning or empanelling of the jury; or

(b) for the reason that a person
    who served on the jury was not returned as a juror by a sheriff or other officer.

671. No omission to observe the directions contained in any Act
    with respect to the qualification, selection, balloting or distribution of
    jurors, the preparation of the jurors book, the selecting of jury lists or the
    drafting of panels from the jury lists is a ground for impeaching or quashing a
    verdict rendered in criminal proceedings.

[197]

These curative
    sections were applied in
R. v. Rushton
(1974), 20 C.C.C. (2d) 297
    (Ont. C.A.), where it was discovered after the verdict that a juror was the
    wife of a police officer and exempted from service under the version of the
Juries
    Act
then in force. They were also applied in
R. v. Stewart
,
    [1932] S.C.R. 612, where a member of the jury was ineligible because he had
    been convicted of an indictable offence.

O.

Juror and Court Services Officer conduct

[198]

The appellants
    submit the conduct of certain jurors and court service officers caused a
    miscarriage of justice and that a new trial is required on that ground.

[199]

The trial judge
    learned of potential issues surrounding the jurors and court services officers
    after the trial ended. She ordered that affidavits be taken from any of the
    staff who dealt with the jury during their deliberations so that a full record
    could be completed. She arranged for copies of the affidavits to be sent to
    Crown and defence counsel.

[200]

On July 17,
    2014, the appellants obtained an order, pursuant to
Criminal Code
s.
    683(1)(e), appointing the Honourable Stephen T. Goudge, Q.C. as a Special
    Commissioner to inquire into the investigation of the jury that tried the appellants.
    Between July 17, 2014 and March 23, 2015, the Special Commissioner, in the
    presence of counsel, questioned a number of individuals involved in the appellants'
    trial, including: the trial judge; the Regional Senior Justice; the Manager and
    Director of Court Services; the Court Services Supervisors; and the Court
    Services Officers (CSOs) overseeing the jury from Friday, April 28, 2012
    until the verdict at 1:40 p.m. on Monday, April 30, 2012.

[201]

The Special
    Commissioner issued his report to counsel on October 28, 2015.

[202]

Based on the
    information disclosed in that report, the appellants obtained an order, on consent
    of the respondent, pursuant to s. 683(1)(b) of the
Criminal Code,
for
    the examination and cross-examination of the CSOs involved in the sequestration
    of the jury.

[203]

The examinations
    and cross-examinations took place in Hamilton on June 20 and 22, 2016.

[204]

This was a long
    trial, approximately fourteen weeks, although originally forecast to take seven
    or eight weeks. It was a difficult trial related to the death of a young woman.
    One juror had to reschedule overseas flights for his sons wedding twice. Others
    had to reschedule medical appointments. Throughout this long trial, some of the
    CSOs remarked that one could not have asked for a nicer group of people. They
    spent weeks with them and commented upon their professionalism and punctuality.

[205]

By the end of
    the trial, the strain was starting to show. Some review of the events of the
    last days of the trial is required.

[206]

On Friday, April
    27, 2012, the jury was dismissed at 12:24 p.m. after the Crowns jury address
    and told to return at 2:30 p.m. They were kept waiting until 4:35 p.m. when the
    trial judge started her charge. On Saturday, April 28, the trial judge charged
    the jury in the morning and into the afternoon, with a lunch break. The jury
    waited for four and a half hours, including a dinner break, before the trial
    judge re-charged them and sent them to the hotel at 8:14 p.m. It appears that a
    CSO told them not to begin deliberating, as there might be objections to the
    charge. The trial judge said just before the re-charge I understand they were
    upset that they were waiting for so long so I am glad that we got them out for
    supper.

[207]

There is little dispute
    about the events that transpired at the hotel that evening. At this point the
    jury had not begun deliberating.

[208]

When the jurors
    arrived at the hotel late on Saturday, some of them wanted a drink. A CSO, Mr.
    Gent, tried to discourage them, telling them that was not wise. Some of the
    jurors reacted strongly to this. Mr. Gent said there was a small mutiny with
    half the jurors acting like school children. Mr. Gent described the jurors as
    a little restless and anxious. He said he agreed to let them unwind and
    decompress. Mr. Gent told them they could have two drinks at most. Mr. Gent,
    and Ms. Clarkson, the other CSO on duty, took the jury to a private room off
    the main room of the hotel bar. Mr. Gent and Ms. Clarkson sat at a table
    outside the private room. Neither could hear what the jurors were saying or any
    conversation with the server who took their drink orders, but they later said
    the jurors appeared jovial. Neither could recall which jurors drank alcohol or
    how much, although they said some of the jurors had two or three drinks.

[209]

After about two
    hours in the private room off the hotel bar, the jurors went to the fifth floor
    of the hotel. Several asked to continue socializing in one of the rooms. Mr.
    Gent agreed, and four to six jurors went into room 523. Mr. Gent then retired
    to his own room, just down the hall. Ms. Clarkson said she stayed in the
    hallway and watched until the jurors had gone into their own rooms before going
    to her room, where she sat up all night with the door open.

[210]

Ms. Clarkson
    testified that a half hour after she retired to her room, one of the jurors
    came to her to complain about the noise emanating from room 523. The juror was
    upset and asked to be taken out for a cigarette.

[211]

Ms. Clarkson
    went to Mr. Gents room to report the complaint at about 1:00 a.m.

[212]

Mr. Gent and Ms.
    Clarkson went down the hallway and knocked at the door, which was not opened
    immediately. He continued knocking until one of the jurors opened the door. Both
    CSOs observed a bottle of whiskey in the room. Some of the jurors were holding
    plastic cups with liquid in them. Mr. Gent told the jurors to break it up.
    He did not think the jurors were being particularly noisy. They were laughing
    more than anything. Several jurors responded that they wanted a couple more
    drinks, that they were adults and could handle it. Mr. Gent told them they did
    not know what was ahead of them, that it was in their best interest to get some
    rest and that people were relying on them to be sharp and at their best. The
    jurors assured the CSOs that they would go to their rooms, but one of them shut
    the door to the room. The court service officers waited for five minutes, then
    knocked again. After three or four requests, the jurors dispersed to their
    individual rooms around 2:00 a.m. Another three jurors went to another room
    together, with the last juror going to her own room around 4:00 a.m.

[213]

Around 1:00 a.m.,
    three jurors asked to be taken outside for a cigarette.

[214]

While outside,
    at one point, one of the male jurors expressed his resentment that they (the
    jurors) were being treated like children, and swore at Mr. Gent, stating that
    they just wanted to relax, cause theyve been stuck in that fuckin stinking
    jury room for fuckin hours without much relief or knowing what the fuck is
    going on. The female juror in the group told the upset juror to calm down. Mr.
    Gent told the upset juror that this was not a vacation and that they had a job
    to do and tried to convey to him the great importance of the jurys role.

[215]

At that point,
    the second male juror stated that, all they [the jurors] were doing was
    working for the government. Mr. Gent recalled that this juror had only been in
    the country for ten years. He responded by asking if the juror had heard the
    trial judge explain his role as a juror, to which the juror said, I dont give
    a fuck what the judge says. The juror immediately apologized.

[216]

Ms. Clarkson
    said that at one point she caught three jurors trying to leave the floor
    without a CSO to go for a smoke. She told them they had to be accompanied by
    her or Mr. Gent.

[217]

Both Mr. Gent
    and Ms. Clarkson said they saw no signs of intoxication on the part of the
    jurors. Ms. Clarkson did not think it proper that jurors consume alcohol. She
    wanted to call a supervisor, but Mr. Gent disagreed on the ground that the
    supervisor had not been sworn to oversee a sequestered jury. Ms. Clarkson
    ultimately agreed.

[218]

There were no
    signs of impairment the next day, Sunday, when the jurors returned to the
    courthouse to begin deliberations. The jury began deliberating on Sunday
    morning. The trial judge gave them a brief re-charge.

[219]

Around lunch
    time, one of the jurors had to be taken to hospital. A CSO accompanied her, and
    it took half an hour for a physician to see the juror. The trial judge
    instructed the jury, through a CSO, to stop deliberating until they were
    together. The juror returned around 4:00 p.m. The jury took a dinner break
    around the supper hour.

[220]

Court adjourned
    for the evening at about 9:15 p.m.

[221]

Ms. Clarkson
    said that the jurors had been told not to deliberate when they first left the
    courthouse. Mr. Gent did not specifically recall this, but he testified that it
    was common to give those instructions to jurors.

[222]

On the Sunday
    evening, some of the jurors asked again if they could socialize in one of the
    rooms. The two CSOs assigned to the jury that evening told them that if they
    did so, they were not to discuss the case. The juror responded, Yes, no
    problem. Several jurors gathered in one room, but all returned to their own
    rooms between 12:30 and 1:00 a.m.

[223]

One of the CSOs
    was asked whether the jurors indicated that they wanted to discuss the case in
    smaller groups. He responded:

No. This, you have to remember this group was together for a
    long time, as far as a jury. So they were, they were, they were kind of social
    in terms of they knew each other very well, so it was more of a social thing
    and, and the only reason I can say that is because when I, when I took them for
    cigarettes smokes or breaks, they were very, you know, sharing in their
    cigarettes with each other and when they kind of communicated between each
    other   so it was more, I took it as more of a social opportunity to just sit
    down and kind of

[224]

The jurors were
    told not to discuss the case unless they were all together:

And thats the same instruction we gave them when we arrived at
    the hotel prior to them going to their rooms when keys were distributed we
    reminded them  actually not only once but a couple times with regards to no
    discussions with regards to the case unless they were all present

[225]

One of the CSOs
    working the Sunday evening shift, Mr. Procyszyn, took a group of smokers to Tim
    Hortons on Monday morning because the hotel did not have coffee ready yet. He
    explained: Its not like Toronto where you have a lot of people walking
    around, there was very few people, there was no people actually on the street
    or inside the Tim Horton shop at the time. There was no television or radio on
    and no newspapers visible. The jurors had coffee and smoked, sitting on two
    park benches across from the courthouse. They had no contact with any outside
    persons. Mr. Procyszyn stood between the two groups and, although he could not
    hear them, he told them not to discuss the case and was confident that they
    knew that rule. The jurors thanked Mr. Procyszyn for taking them to Tim
    Hortons: Ive never had a jury so appreciative of the fact that they, you
    know, they were being treated well at that point.

[226]

The jury
    continued its deliberations on Monday morning. The verdicts were delivered at
    1:40 p.m., and the jury was polled. The jury had reached a verdict earlier, but
    they ate their lunch while waiting for the court to be reassembled.

[227]

When examined by
    the Special Commissioner on December 18, 2014, Ms. Clarkson said she did
    not remember whether she reported her concerns about the jurors conduct on
    Saturday night to her supervisor on Monday morning or Monday afternoon, after
    the jury had been discharged. When cross-examined on June 20, 2016, Ms.
    Clarkson agreed she had spoken to one of her managers on Monday morning. The
    first written communication reflecting her complaint to a supervisor is an
    email sent at 4:14 p.m. resulting from a chain of multiple communications.

[228]

On this record,
    it is impossible to conclude that Ms. Clarkson made her concerns known to her
    supervisor before the jury was discharged.

(1)

Arguments on appeal

[229]

The appellants
    submit that the following conduct of the jurors and the court service officers caused
    a miscarriage of justice:

·

Unsupervised late night fraternization;

·

Separation of the jury on at least three occasions during which
    some jurors may have deliberated while others were not present;

·

Alcohol consumption by jurors at dinner;

·

Alcohol consumption after dinner;

·

Expression of contempt by a juror for the trial judges
    instructions and the trial process;

·

Inappropriate conversations between the court service officers
    and jurors; and

·

The failure of the court service officers to alert the trial
    judge as to the events of Saturday night.

(2)

Analysis

[230]

I begin my
    analysis with the observation that jurors are entitled to the same strong
    presumption of impartiality as judges, and that there is a heavy burden on a
    party who seeks to rebut this presumption:
R. v. Dowholis
, 2016 ONCA
    801, 133 O.R. (3d) 1, at para. 18.

[231]

Similarly, this
    court noted in
R. v. Farinacci
, 2015 ONCA 392, 328 C.C.C. (3d) 101, at
    para. 41, that [j]urors, like judges, are presumed to govern themselves by the
    oath they swore to try the accused on the evidence adduced in the courtroom.

[232]

Jurors perform a
    vital public service, which is at times arduous and stressful, often under
    circumstances that significantly disrupt their own personal lives. They should
    not be treated as if they are incarcerated while sequestered.

[233]

Section 647(2)
    of the
Criminal Code
mandates that when a jury is sequestered:

[T]he jury shall be kept under the charge of an officer of the
    court as the judge directs, and that officer shall prevent the jurors from
    communicating with anyone other than himself or another member of the jury
    without leave of the judge.

[234]

The purpose of
    this section is to protect jurors from outside influences that might affect
    their verdict. It does not prevent them from, for example, telling a server
    what they want to have for dinner or speaking to their own physician where the
    need arises during sequestration.

[235]

This section does
    not require that all twelve jurors must all be together at all times, unless
    they are in their hotel rooms alone. Jurors should be encouraged to relax when
    they are not deliberating. For some, this may mean watching a hockey game under
    the supervision of court services officers. For others, it will be doing yoga
    in their room. Sometimes medical emergencies require a juror to be separated
    briefly from the others. By no means is it necessary for all twelve jurors to
    go outside on a freezing January day if some of them need a cigarette.

[236]

It is
    undoubtedly a good practice for trial judges to tell jurors not to deliberate
    when they are not all together. However, some casual comment about the case
    while some of them are in smaller groups does not amount to a miscarriage of
    justice. These are a diverse group of people compelled to be with each other,
    and the only thing they have in common is the trial. It may well happen that
    someone will comment on the evidence while one juror is in the washroom, for
    example. The requirement of unanimity for a verdict removes any concern about
    such comments. In this case, in any event, there is no evidence that the jury
    was deliberating together or in smaller groups on the Saturday night.

[237]

Where there is no
    evidence that a jurors ability to do their job has been impaired by alcohol,
    consumption of alcohol by a juror with or after dinner is no basis to set aside
    a verdict.

[238]

In
R. v.
    Robinson
, [1987] O.J. 416 (C.A.), leave to appeal to S.C.C.  refused,
    [1989] S.C.C.A. No. 99, for example, fresh evidence was introduced on appeal
    that over a dinner break on the second evening of deliberations the jury
    consumed a total of six bottles of wine and six drinks of liquor. They returned
    to deliberate for some time before retiring for the night. This court refused
    to interfere with the conviction, indicating, It is not drinking itself but
    intoxication that must be the test.
[1]

[239]

Supervision of a
    sequestered jury requires tact and delicacy on the part of court services
    officers. They will inevitably have to communicate with jurors about such
    matters as meals, hotel rooms, or, as here, a medical need or cigarette breaks.
    I see nothing improper here for Mr. Gent to have attempted to cajole the jury
    into calling it a night or maintaining a friendly relationship with the jurors.
    None of the CSOs discussed the case with the jurors.

[240]

I would expect
    that momentary expressions of frustration by jurors would be commonplace. There
    is no basis to conclude that there has been a miscarriage of justice, on that
    basis.

[241]

Here, there may
    have been good reason for the trial judge to start her charge at 4:35 on a
    Friday afternoon and to keep the jury sequestered over the weekend. Keeping in
    mind, however, the need to keep jurors from getting too fatigued or frustrated,
    it might have been a good idea to begin charging them on the Monday morning.

[242]

Ideally, CSOs
    should keep the trial judge appraised of all matters involving the jurors. Here,
    given the essentially harmless nature of what took place, no remedy would have
    been necessary in any event.

P.

Conclusion

[243]

I would, for all
    of these reasons, dismiss the appeals. The publication ban prohibiting the
    publication of any information which could identify any juror is continued.

G. Pardu J.A.

I agree Robert J.
    Sharpe J.A.

Watt J.A. (concurring):

[244]

I have read the
    reasons of my colleague and agree with her, for the reasons she gives, that the
    appeals should be dismissed. In order to assist trial judges in future cases
    where individual accused seek severance from others with whom they are jointly
    indicted and presented for trial and to provide some guidance on jury
    management issues, I offer the suggestions that follow.

Severance

[245]

It is difficult
    to underestimate the importance of a principled, case-specific approach to
    claims advanced by some or all jointly indicted accused of entitlement to
    separate trials. What is essential is that trial judges construct their
    analysis on a proper foundation and reach their conclusions on the basis of a
    reasoned consideration of all the relevant circumstances. This is not the place
    for the application of what are sometimes offered as the functional equivalent
    of bright-line exceptions, which are said, without more, to dislodge basic
    principle.

[246]

The basic rule
    originates in the common law and is of venerable lineage. The
prima facie
rule

is that where the essence of the case for the Crown is that the persons
    charged were engaged in a common enterprise, they should be jointly indicted
    and jointly tried:
R. v. Grondkowski; R. v. Malinowski
, [1946] K.B. 369
    (C.C.A.), at p. 371.

[247]

The
prima
    facie
rule of the common law, sometimes characterized as a presumptive
    rule, is grounded in sound social policy reasons. These reasons have been
    adequately rehearsed elsewhere, including by my colleague, and are in no need
    of restatement here. However, what should not be forgotten about this common
    law rule is that it was not developed in a vacuum. Like other common law rules,
    it is the product of judicial experience in the trial of criminal cases. And
    that experience no doubt would have included commonplace joint trial events
    such as antagonistic or cut-throat defences, evidence of limited admissibility
    and differences in the nature and extent of the evidence inculpatory of various
    accused. Yet the
prima facie
rule of joint venture  joint trial
    remains.

[248]

This common law
    rule continues to apply in Canada under s. 8(2) of the
Criminal Code
except to the extent that it is altered, varied, modified or affected by the
Code
or other federal enactment. The
Criminal Code
contains no express
    general provision about joinder of accused, like it does for joinder of counts
    in s. 591(1).

[249]

What the
Criminal
    Code
does do, in s. 591(3), is settle the standard to be met before the
    discretion to order separate trials for jointly indicted accused is engaged:
    "the interests of justice so require".

[250]

The language
    used to formulate the standard or test for severance is important. The
    "interests of justice" are not coextensive with the "interests
    of the accused". If that were so, not only would the standard be expressed
    in different terms, but also such a construction would substitute a rule of law
    for an exercise of judicial discretion:
Grondkowski; Malinowski
, at p.
    372.

[251]

The phrase
    "interests of justice" requires consideration of the interest of the
    prosecution as an essential component of the analysis:
R. v. X and others
,
    [2012] EWCA Crim 2276, at para. 17.

[252]

The fact that a
    co-accused in a joint trial is running an antagonistic or
    "cut-throat" defence is common. Sometimes, as here, all advance
    similar claims. Equally familiar is the fact that one co-accused has implicated
    another or others in the offence(s) charged in a police interview or otherwise,
    something denied by the other co-accused and not admissible as evidence against
    them. So too the case of a co-accused who has exculpated himself but implicated
    others in an out-of-court statement may decide not to testify and rely on his
    out-of-court statement. On other occasions, a co-accused may give evidence
    adverse to another co-accused who has already given evidence and closed his
    case. See generally,
R. v. Miah
, [2011] EWCA Crim 945, at para. 59;
R.
    v. Cairns
, [2002] EWCA Crim 2838, [2003] 1 Cr. App. R. 38, at para. 52.

[253]

In many cases of
    joint criminal activity involving several co-accused, the evidence against one
    may be (or appear) much stronger than against another or others. In such cases,
    once the jury is sure that one accused is guilty, it may become more likely
    that they will be equally convinced of the guilt of another or others:
X
,
    at para. 16.

[254]

The examples
    given in the preceding paragraphs illustrate
factors
that a trial
    judge should consider in deciding whether the "interests of justice"
    require a separate trial for any or all co-accused. But they are not, as
    sometimes seems to be thought and advanced as dispositive nowadays, categorical
    exceptions to the presumptive rule of joint venture  joint trial. Their mere
    assertion is not a ticket out of Dodge. To be certain, where the case for
    severance is strong enough, the prejudice great enough, the circumstances
    particular enough, the presumptive rule must give way:
R. v. Lake
(1976), 64 Cr. App. R. 172 (C.A.), at p. 175. But not otherwise.

[255]

A final point
    concerns precautionary measures that should be put in place in cases where
    severance is refused. In mid-trial and final instructions, composed in clear
    and understandable language, trial judges should ensure jurors understand any
    limitations the law imposes on the use of evidence of limited admissibility.
    What is permitted. And what is prohibited.

Jury Management Issues

[256]

I agree with my
    colleague that what occurred here during the sequestration of the jury did not
    amount to or result in a miscarriage of justice.

[257]

Jury trials,
    including what occurs after the jury has retired to consider its verdict, often
    take unexpected turns. Each case is different. Judges are not provided with a
    Manual of Jury Management or a crystal ball that would permit pre-emptive
    strikes to avoid events that might compromise trial integrity. What follows are
    some suggestions for future consideration. They are not meant as criticism of
    the trial judge in this case who was unaware of the in-sequestration events my
    colleague has described.

[258]

First, at least
    in trials that are expected to be lengthy and complex, a trial judge might
    consider briefly reminding court staff, in the absence of the jury and at the
    outset of the trial after the jury has been selected, to bring to his or her
    attention any issues associated with the management of the jury that may affect
    the jury's ability to perform its duties during the trial. For the most part, I
    expect many reports, those that do not affect the vital interests of the
    accused or bear on the substantive conduct of the trial, can be dealt with by
    instructions to court staff to communicate to the jury rather than by judicial
    in-court instructions. Sometimes, however, it may be necessary to bring the
    issue to the attention of counsel and discuss it with them in the absence of
    the jury before settling on a course of action.

[259]

Second, to the
    extent possible, trial judges should keep jurors apprised of scheduling issues,
    especially those that require adjustments to the schedule set for the
    concluding events of the trial, like the addresses of counsel, the judge's
    charge and the jury's deliberations. To the extent possible, what should be
    avoided are lengthy unexplained confinements of jurors in the jury room.
    Explanations should be carefully shaped to avoid disclosure of inappropriate
    information and steps taken to ensure accurate delivery by court staff or, if
    the occasion warrants it, by the judge in open court.

[260]

Third, in
    advance of delivery of the charge, but after counsel have addressed the jury,
    it may be prudent to advise the jury that court staff will provide them with
    information about what to bring and what to leave behind in the event that
    their deliberations extend overnight.

[261]

Fourth, in
    concluding instructions about the deliberation process, a trial judge might
    consider including a direction that deliberations to achieve a verdict are to
    take place only in the jury room and only when all jurors are present. This
    direction mirrors the standard opening instruction given by judges who permit
    jury room discussion of the evidence during the trial. This should go some way
    to forestall small group discussions and discussions while sequestered at a
    hotel.

[262]

A final point
    relates to supervision of sequestered jurors by court services officers when
    the jury has concluded its deliberations for the day and has left the
    courthouse. Unpredictable events happen, for example, a medical emergency
    involving a juror which requires accompaniment by a court services officer to a
    medical facility. It seems inadvisable that a single court services officer be
    left to supervise the remaining eleven jurors. The more prudent course would
    appear to be to ensure that no fewer than three court services officers be
    assigned to jurors during overnight accommodations.

David Watt J.A.

Released: April 4, 2017

[1]

Contrast this approach with the conclusions of the United
    States Supreme Court in
Tanner
, 483 U.S. 107 (1987), where the court
    held that evidence of a  jurys drug- and alcohol- fueled bacchanalia was
    inadmissible, on the ground it was a matter intrinsic to their deliberations.
    See also
Pena-Rodriguez v. Colorado
, 2017 WL 855770 (US).