COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Dunstan, 2017 ONCA 432

DATE: 20170530

DOCKET: C61457

Doherty, Blair and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brett Dunstan

Appellant

Frank Addario and Andrew Burgess, for the appellant

Nicholas Devlin, for the respondent

Heard: January 17, 2017

On appeal from the conviction entered on October 23, 2015
    by Justice Bruce A. Glass of the Superior Court of Justice, sitting with a
    jury.
[1]

R.A. Blair J.A.:

[1]

Mr. Dunstan was convicted of multiple counts of possession for the
    purpose of trafficking and one count of possession of the proceeds of crime
    after the police discovered significant amounts of various drugs and approximately
    $100,000 in cash after responding to an anonymous call reporting a break-in at
    his house.  He sought to have the evidence of the drugs and cash excluded on
    the basis that the police had staged the break-in and placed the anonymous call
    in order to gain access to his house illegally, in breach of his rights under
    s. 8 of the
Charter of Rights and Freedoms
.

[2]

In the course of that application, Mr. Dunstan requested an order
    permitting the defence to use a high-quality microphone to record the testimony
    of Staff Sergeant Cyril Gillis, the police officer Mr. Dunstan alleged was the
    maker of the anonymous call and instigator of the break-in, for the purpose of
    enabling the police officers voice to be subjected to expert spectrographic voice
    identification analysis.  This appeal turns on whether a Superior Court judge
    has the authority to make such an order.

[3]

The Crown conceded that, if a state agent placed the call and staged the
    break-in, there was a serious breach of the appellants s. 8 rights requiring
    the evidence to be excluded as a result.

[4]

The pre-trial application judge dismissed the s. 8 application.  Mr.
    Dunstan appeals his convictions on two grounds relating to the pre-trial
Charter
application.  He submits, that the pre-trial application judge erred in:

(a)       determining that he lacked
    the authority to permit the defence to record the evidence of Staff Sergeant
    Gillis with a high-quality microphone in order to subject his voice to a
    spectrographic voice identification analysis; and,

(b)      holding that he, the
    appellant, had the burden of proving the illegality of the warrantless entry
    onto his property.

[5]

For the reasons that follow, I would allow the appeal and order a new
    trial.

BACKGROUND AND FACTS

[6]

On September 20, 2011, York Regional Police entered a house at 76 Red
    Ash Drive in Markham in response to an anonymous call reporting a break-in at
    those premises.  The call was received by the police 911 operator on the York
    Regional Police non-emergency line at approximately 2 a.m.  Upon entering the
    premises the police discovered drugs in plain view.  The officers secured the
    premises, obtained a search warrant and subsequently found: (i) 43 pounds of
    marijuana; (ii) 4.7 kilograms of cocaine; (iii) 4 kilograms of psilocybin; (iv)
    6.77 grams of MDMA; and (v) over $100,000 in cash.  The officers seized the
    drugs, the cash and some drug-related paraphernalia.

[7]

It is the circumstances surrounding that discovery  and, in particular,
    the identity of the person who made the anonymous call  that lie at the heart
    of this appeal.

Project Gladiator

[8]

In April 2011, Durham Regional Police began a probe into a drug
    trafficking ring.  The investigation was known as Project Gladiator, and, on
    September 20, 2011, its eight-officer team was led by Staff Sergeant Gillis.

[9]

During the course of the investigation, the police obtained wiretap
    authorizations and a general warrant to enter places associated with the
    principal target of the investigation and other known persons in order to
    search for items related to the investigation, such as controlled substances
    and drug-related evidence.  The general warrant permitted the police to
    disguise these covert entries as break-ins if they located a large cache of
    drugs.

[10]

Despite a number of these covert sneak and peek entries during the
    course of the investigation, however, Sergeant Gillis and his team had not been
    able to discover the stash house where the drugs were kept.

[11]

Mr. Dunstan was not a major target of Project Gladiator.  It was focused
    on a Mr. Liu and his known associates.  The appellant and Mr. Liu had been seen
    together on one occasion, however  on July 21, 2011  when the surveillance
    team observed them meeting in a parking lot in Markham.  A person later
    identified as the appellant drove into the parking lot in a black Jeep
    Cherokee, met with Mr. Liu, drove away and returned after a few minutes, at
    which point there was an exchange of items, including a black knapsack given by
    the appellant to Mr. Liu.

[12]

As part of the investigation, the Project Gladiator team staged a covert
    entry at Mr. Lius condominium and placed a wiretap device inside.  They also put
    a tracking device under his vehicle.  The Project suffered a set-back, however,
    when Mr. Liu discovered the tracking device, became suspicious that he was the
    subject of an investigation by the police, and announced  in an intercepted
    communication  that he was shutting down the operation for a period of 30
    days. The wiretap source of information dried up.

[13]

But the investigation continued.  Durham Regional Police conducted a
    number of covert entries pursuant to the general warrant in an unsuccessful
    attempt to locate the stash house.  They pursued other measures.

[14]

Amongst those measures was the following.  The Durham Regional Police
    officers went to the Markham location where the appellant and Mr. Liu had met
    and conducted a surveillance exercise by driving out in a number of directions
    from that location within what they estimated was a perimeter of where the
    appellant might have gone in the time he had to drive away and return at the
    time of the meeting.  In the course of that exercise, they discovered the
    appellants black Jeep Cherokee in the driveway at 76 Red Ash Drive.  The
    vehicle was observed in the same place the following day.  This information was
    reported to Staff Sergeant Gillis.

[15]

76 Red Ash Drive was not named in the general warrant and could not be
    targeted for a sneak and peek covert entry pursuant to that authorization.

The Anonymous Call and Entry into 76
    Red Ash Drive

[16]

Early in the morning of September 20, 2011, York Regional Police
    received an anonymous phone call on its non-emergency line.  The caller
    reported that he had seen eight men run out of 76 Red Ash Drive and it looked
    suspicious.  The content of the call in its entirety is as follows:

Operator: York Regional Police Communications, Jaime

Caller: Uh, I just saw eight guys run out of a house at 76 Red
    Ash and look suspicious.

Operator: 76 Red Ash?

Caller: Yup.

Operator: What city is that in?

Caller: Its in Markham.

Operator: And this just happened?

Caller: It just happened, like 15 minutes ago.

Operator: So where are they now?

Caller: Im not following them. I dont know.  They didnt look
    too friendly.

Operator: So eight males 15 minutes ago ran out of

[The caller hangs up.]

Operator: Hello?

[17]

The anonymous call was made from a blocked telephone number.  As a
    result, the caller could not be identified and the phone call could not be
    traced.  York Regional Polices non-emergency line differs from the emergency
    911 line in that if the emergency caller, using a cell phone, hangs up, the
    operator can call back whereas on the non-emergency line, the operator does not
    have the ability to call the person back where the callers number is blocked.
    In addition  although the pre-trial application judge was ultimately not
    prepared to draw an adverse inference against Staff Sergeant Gillis in this
    respect  a suspicious person report is a special category of report for
    police telephone operators not disclosed to the general public by law
    enforcement officers.  Upon the receipt of such a call, the operator sends the
    information to the dispatcher who then dispatches officers to the scene.

[18]

York Regional Police accordingly responded to the call as notice of a
    potential break-in in accordance with standard procedure.  Finding the front
    door broken open upon their arrival, the officers entered the premises at 76
    Red Ash Drive to ensure the safety of anyone who might have been in it and that
    no unauthorized persons remained.  No one was there, but the officers observed
    various open bags of drugs in plain view.

[19]

The premises were then secured.  York Regional Police obtained a warrant
    and upon re-entering the premises pursuant to the warrant discovered the drugs
    and cash outlined above together with some drug cutting equipment and packaging
    supplies.

[20]

Staff Sergeant Gillis and Durham Regional Police later claimed credit
    for finding the stash house and the drugs.

The Section 8
Voir Dire
and the
    Voice Identification Issue

[21]

Prior to trial, the appellant applied to have the evidence of the drugs,
    the drug-related paraphernalia and the cash, excluded under s. 24(2) of the
Charter
on the grounds that the warrantless entry of the premises by York Regional
    Police violated his s. 8 right to protection against unreasonable search and
    seizure.  The pre-trial application judge dismissed the application, but much
    happened en route to that ultimate determination.

[22]

The defence initially took the position that the break-in was staged by York
    Regional Police in cooperation with Durham Regional Police.  The evidence did
    not support this argument and it was eventually abandoned.  Instead  after
    hearing Staff Sergeant Gilliss voice during his testimony at the
voir dire
,
    and comparing it with the anonymous callers voice on the police tape  the
    defence began to focus on Staff Sergeant Gillis as the person who made the call
    and instigated the allegedly fake break-in.

[23]

Two things evolved from this.  First, the defence retained a voice
    recognition expert, Dr. Stevan Pausak, to conduct a spectrographic voice
    analysis of Staff Sergeant Gilliss voice in order to determine whether his
    voice matched that of the anonymous caller.
[2]
Secondly, defence asked that Staff Sergeant Gillis be recalled for further
    cross-examination, and that the defence be permitted to record that testimony
    on a high-quality microphone as opposed to relying on the lower-quality court
    recording for purposes of the spectrographic analysis.

[24]

Dr. Pausak testified on the
voir dire
.  He said that he had
    listened to the anonymous callers voice on the police tape and to Staff
    Sergeant Gilliss voice as captured on the court audio tape.  However, he would
    need to hear Staff Sergeant Gilliss voice as recorded on a high-quality
    microphone in order to be able to conduct a proper analysis and give an opinion
    as to whether Staff Sergeant Gillis was the caller.

[25]

The Crown agreed to recall Staff Sergeant Gillis for further
    cross-examination on the issue of whether he made the anonymous call and
    whether he and his team staged the break-in.  It also agreed that he that he
    could be asked to read the text of the anonymous call into the record. But the
    Crown opposed any order permitting the defence to record the subsequent
    cross-examination testimony on a high-quality microphone for the purpose of
    expert analysis.

[26]

After hearing counsels submissions, the pre-trial application judge
    dismissed the application, ruling that he did not have the power to make such
    an order.

[27]

The
voir dire
continued and, in the end, the pre-trial application
    judge dismissed the appellants application to exclude the impugned evidence,
    largely on the basis that the defence had not met the burden of showing on a
    balance of probabilities that Staff Sergeant Gillis was the anonymous caller
    and, therefore, that the break-in at 76 Red Ash Drive represented a violation
    of s. 8 of the
Charter
.  In that respect, the following evidence is
    also pertinent.

[28]

Staff Sergeant Gillis vigorously denied that he made the anonymous call or
    that he or his team had anything to do with the break-in.  He testified that he
    was off duty at the time and that he only found out about the events at 76 Red
    Ash Drive the following day.  In this respect, the defence sought production of
    Staff Sergeant Gilliss phone records and information regarding his whereabouts
    at the relevant time, on the theory that this information would assist in
    verifying or contradicting his evidence.  The records and information regarding
    his whereabouts were not provided either by Staff Sergeant Gillis or by the
    Crown.
[3]

[29]

He did acknowledge that he was prepared to take risks during the
    investigation and that he had the ability to conduct the type of break-in that
    occurred.  He agreed that the Project Gladiator team had engaged in dozens of
    covert entries during the course of its probe, but his evidence was that all
    those entries were lawfully carried out pursuant to the general warrant
    authorization.

[30]

76 Red Ash Drive was not a named target under the general warrant that
    was in effect at the time of the break-in.  Staff Sergeant Gillis agreed that
    the team probably had grounds to obtain an authorization to enter those
    premises.  He did not pursue that route, he said, because the team had to
    prioritize the use of their resources towards other, more developed, suspects.

[31]

When recalled for further cross-examination, Staff Sergeant Gillis read
    the text of the anonymous call into the record four times (consistent with the
    number of comparison samples the defence voice identification expert required
    for his analysis). For the reasons outlined above, Dr. Pausak was not able to
    provide a professional opinion about the comparison, given the low-quality
    audio characteristics of the courts recording equipment.

[32]

The pre-trial application judge concluded that the circumstances of the
    anonymous call were suspicious, that it was unlikely the call was made by a
    concerned citizen, and that it was reasonable to question whether Staff
    Sergeant Gillis was the caller.  In the end, however, he was not persuaded that
    Staff Sergeant Gillis was in fact the caller.  His assessment of Staff Sergeant
    Gilliss credibility hinged on his own comparison of the anonymous callers
    voice, as recorded on the non-emergency lines high-quality audio equipment,
    and Staff Sergeant Gilliss voice, as recorded on the courts lower-quality
    recording equipment.  He found that there were similarities, but also some
    differences between the voices.  In the course of this exercise, he cautioned
    himself on three occasions about the limitations of voice comparison for
    someone who is not trained in voice identification.

[33]

Having determined that the burden of proof on this issue fell on the
    defence, the pre-trial application judge concluded (reasons, para. 132):

[T]hat while there are reasons to be suspicious of Gillis, the
    evidence does not go beyond raising a suspicion.  It falls short of satisfying
    me on a balance of probabilities that he or any other member of the Durham
    Regional Police was responsible for the break-in at 76 Red Ash and the
    subsequent call to the York Regional Police.  For these reasons, the
    defendants application is dismissed.

LAW AND ANALYSIS

[34]

As noted at the outset of these reasons, the appellant raises two issues
    on appeal.  Did the pre-trial application judge err in:

(a)      determining that he lacked
    the authority to permit the defence to record the evidence of Staff Sergeant
    Gillis with a high-quality microphone in order to subject his voice to a
    spectrographic voice identification analysis; and,

(b)      holding that he, the
    appellant, had the burden of proving the illegality of the warrantless entry
    onto his property.

[35]

For the reasons that follow, I would answer both questions in the
    affirmative.

Did the Court Have the Power to Allow
    Staff Sergeant Gilliss Testimony to be Recorded with a High-Quality
    Microphone?

[36]

The pre-trial application judge dismissed the appellants application
    for permission to record Staff Sergeant Gilliss testimony using a high-quality
    microphone on the basis that he had no power to make such an order.

[37]

He did so for three reasons.  First, he concluded that he was bound by
    this Courts decision in
R. v. Karimi
, 2014 ONCA 133 which held that
    the Court of Appeal did not have the authority under s. 683(1) of the
Criminal
    Code
to compel a witness to attend before it to provide a voice sample on
    appeal.  Secondly, he held that his inherent jurisdiction as a Superior Court judge
    did not provide him with the power to make the order.  Finally, he rejected the
    appellants argument that his right to make full answer and defence ought to
    permit the recording.

[38]

Here, the appellant seeks to distinguish
Karimi
.  He repeats
    his arguments based on the inherent jurisdiction of a Superior Court judge and
    his right to make full answer and defence.  In addition, he submits that s. 136(3)
    of the
Courts of Justice Act
, R.S.O. 1990, c. C.43 authorizes a judge to
    make the order sought.

[39]

I agree with the appellant that the pre-trial application judge had the
    power to make the order sought.

Karimi
    is Not Dispositive in These Circumstances

[40]

In
Karimi
, this Court determined that an appellate court does
    not have the authority pursuant to s. 683(1) of the
Criminal Code
to
    compel a witness to attend before it, not for the purpose of giving testimony,
    but for the sole purpose of permitting the witnesss voice to recorded and
    subjected to voice identification analysis.

[41]

Section 683(1) was the only potential source of authority considered in
    that case.  With respect to subsection 683(1)(a), which permits an appeal court
    to make an order for the production of any writing, exhibit, or other thing
    connected with the proceedings, the Court concluded that the authority was
    limited to the production of an existing writing, exhibit or other thing
    connected to the proceeding (para. 5).   With respect to subsection 683(1)(b),
    which provides that the court can order that any person who could have been a
    compellable witness attend and be examined, the Court said, at para. 6:

That section refers to an order that compels a person to attend
qua
witness for the purpose of answering questions or producing other
    kinds of evidence relevant to the proceeding.  The section does not contemplate
    compelling a person to attend not as a witness, but for the purposes of
    assisting in the creation of material that may be used by an expert in the
    formulation of his or her opinion.

[42]

The pre-trial application judge relied upon this passage  as does the
    Crown  and concluded that he was bound by the decision in
Karimi
.

I
    agree with counsel for the appellate, however, that
Karimi
is
    distinguishable from the present circumstances.

[43]

Staff Sergeant Gillis was not compelled to attend court solely for the
    purpose of having his voice recorded.  He was compelled to attend court to give
    substantive testimony regarding the matters at issue on the
voir dire
,
    and his voice was to be recorded in any event.  It was agreed that he would be
    asked to read the words of the anonymous caller into the record.  It was agreed
    that the pre-trial application judge would himself compare Staff Sergeant Gilliss
    voice with the record of the anonymous callers voice and, although the Crown
    resisted, the pre-trial application judge ruled that it was appropriate for him
    to listen to the court recording of Staff Sergeant Gilliss voice for purposes
    of making that comparison.
[4]
It is implicit in the way the matter unfolded that the Crown accepted the
    defence voice identification experts utilizing of the courts recording of Staff
    Sergeant Gilliss voice for purposes of his analysis.

[44]

The only issue at this stage was whether Staff Sergeant Gilliss voice
    would be recorded only on the lower-quality audio device utilized by the court
    or, in addition, by a high-quality microphone utilized by the defence and
    whether the court had the authority to permit the latter to occur.  There would
    be no additional intrusion or infringement upon the witnesss privacy or
    security rights.   Indeed, if, for whatever reason, the audio recording
    equipment utilized by the Court at the time had been of a higher quality, there
    would be no issue at all.

[45]

This is materially different from the factual situation facing this Court
    in
Karimi
, where the issue was whether s. 683(1) of the
Criminal
    Code
permitted the appeal court to compel a witness to attend for the sole
    purpose of providing a voice sample.  The Court was not asked to, and did not,
    consider the impact of s. 136 of the
Courts of Justice Act
, or the
    question of inherent jurisdiction/implied power, or whether an accuseds right
    to make full answer and defence was engaged.

The Superior Courts Authority

[46]

In my opinion, as a Superior Court judge, the pre-trial application
    judge had the discretionary authority to permit Staff Sergeant Gilliss
    testimony to be recorded on a high-quality microphone pursuant to s. 136(3) of
    the
Courts of Justice Act
but, if not, then pursuant to the Superior
    Courts inherent jurisdiction.  This conclusion is reinforced by the principles
    underlying the appellants right to a fair trial and to make full answer and
    defence in the circumstances.

Section
    136(3)

[47]

Much of the debate on the appeal centred on the application of s. 136(3).
    Sections 136(1) and (3) of the
Act
state in their material respects that:

(1) Subject to subsections (2) and (3), no person shall,

(a) take or attempt to take a photograph, motion picture,
    audio recording or other record capable of producing visual or aural
    representations by electronic means or otherwise,

(i) at a court hearing;

(3) Subsection (1) does not apply to a photograph, motion
    picture, audio recording or record made with authorization of the judge,

(a) where required for the presentation of evidence or the
    making of a record or for any other purpose of the court hearing;

[48]

Mr. Addario contends that the pre-trial application judge had the
    authority to make the order sought pursuant to subsection (3).  He argues that
    the recording of Staff Sergeant Gilliss voice with a high-quality microphone was
    required for the presentation of evidence at the hearing or, if not, is
    encompassed by the broader expression for any other purpose of the court
    hearing.

[49]

Emphasizing an accuseds right to make full answer and defence, he
    submits that the high-quality recording was required to enable the appellant
    to exercise that right by getting to the truth about whether Staff Sergeant
    Gillis was the anonymous caller.  As he sees it, the case turns on an important
    question: did a
police officer
make an anonymous call to police to
report
    a fake break-in
so that first responders could make, and justify, a
    warrantless entry and discover drugs in the appellants house?  The identity of
    the anonymous caller is central to the appellants defence.

[50]

For the Crowns part, Mr. Devlin casts the issue in a different light.
    He submits the appeal turns on a proper assessment of the courts role in the
    exercise of its independent adjudicative function.  That role is to consider,
    receive and decide upon evidence, not to become a party to its creation.
    Turning the witness box into a venue for the collection of bodily samples
    (i.e., the witnesss voice) for the purposes of an out-of-court forensic
    analysis, he submits, is a misuse of the witness box and of the courts adjudicative
    role.

[51]

In fairness to the pre-trial application judge, s. 136 does not appear
    to have been brought to his attention during argument.  Nonetheless, it
    provides the court with discretionary authority to make the order sought by the
    appellant, in my view.

[52]

What is required for the presentation of evidence or for any other
    purpose of the court hearing will depend upon the circumstances of the
    particular case.  As this Court observed in
R. v. N.S.
, 2010 ONCA 670,
    262 C.C.C. (3d) 4, affd 2012 SCC 72, [2012] 3 S.C.R. 726 at para. 16, [s. 136]
    requires a case-specific analysis.  The section is to be given such fair,
    large and liberal construction and interpretation as will best ensure the
    attainment of the object of the Act according to its true intent, meaning and
    spirit:

Interpretation Act
, s. 10, as cited in

Rizzo
    & Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at p. 41.  Context is
    important in this respect.  In
Ontario (Minister of Transport) v. Ryder
    Truck Rental Canada Ltd.
(2000), 47 O.R. (3d) 171 (C.A.), at para. 11,
    this Court said:

The modern approach to statutory interpretation calls on the
    court to interpret a legislative provision in its total context. The courts
    interpretation should comply with the legislative text, promote the legislative
    purpose, reflect the legislatures intent, and produce a reasonable and just
    meaning. [Footnotes omitted.]

[53]

Section 136 is the descendant of s. 67 of the
Judicature Act
, R.S.O.
    1980, c. 223, which introduced a prohibition against televising or
    photographing court proceedings or persons entering or leaving a courtroom.
    Its objectives were the maintenance of order and decorum in the courtroom and
    courthouse and the protection of unimpeded access to and from the courtroom by
    participants in court proceedings:
R. v. Squires
(1992), 11 O.R. (3d)
    385 (C.A.), leave to appeal refused, [1993] S.C.C.A. No. 57, at p. 393.
    Section 136 has been expanded to prohibit unauthorized audio recordings of
    court proceedings, but the meaning and scope of the section is not otherwise
    changed: see Garry D. Watson & Michael McGowan,
Ontario Civil Practice
    2017
(Toronto: Carswell, 2016), at p. 244.  Subsection 136(3) provides for
    the authorized exceptions to the prohibition.

[54]

With these considerations in mind, I turn to the application of the
    authorized-exceptions provision to the circumstances of this case.

[55]

I observe initially that what the appellant was requesting has little to
    do with the objectives the legislature was seeking to accomplish in enacting
    the prohibition against audio and video recording in the courtroom.  The
    appellants request does not touch the notion of maintaining order and decorum
    in, or the objective of ensuring unimpeded access to, the courtroom one way or
    the other.  The foregoing considerations lead as well to the reasoning that the
    authorized exceptions to the prohibition should be interpreted liberally to
    enable the court to allow what would otherwise be permissible  were it not for
    the prohibition and depending on the circumstances of the particular case  in
    order to advance the ultimate goal, which is to further the fair administration
    of justice, including the fairness of the trial.  In this way, a reasonable
    and just meaning of s. 136(3) is better achieved, in my opinion.

[56]

Given the accepted approach to statutory interpretation, the intention
    of the legislature and the objectives of subsections 136(1) and (3), I do not
    think it is helpful to draw the bright line Crown counsel seeks to draw between
    recording court testimony for the purposes of record making (a permitted
    purpose), and recording or creating testimony for purposes of forensic
    sampling (an impermissible purpose, according to the Crown).

[57]

First, I do not see that as a distinction to be drawn in these
    circumstances.  As noted above, Staff Sergeant Gilliss testimony was not being
    recorded or created, nor was he compelled to testify, at the
voir dire
for the purpose of making a voice sample that would be subjected to forensic
    analysis.  He was already properly compelled to testify at the
voir dire

because he had relevant evidence to provide with respect to material
    matters in issue.  His voice was to be recorded in any event.

[58]

Secondly, I see no reason why the recording of
viva voce
testimony for the purposes of making a court record, and the recording of
    testimony which may at the same time serve the collateral purpose of enabling
    that testimony to be examined forensically, need be mutually exclusive.  Simply
    because the courts role traditionally is to receive evidence tendered by the
    parties, and to evaluate that evidence,  it does not follow that what happens
    in the courtroom  including the giving of
viva voce
testimony
    cannot be utilized for a legitimate, albeit collateral, purpose.  Nor does it
    follow that a Superior Court is powerless to facilitate that process where it
    can be done without infringing the witnesss or the accuseds
Charter
rights,
    and the fair administration of justice is advanced by doing so.

[59]

Trial courts make orders from time to time for the non-standard
    recording of testimony or to provide some other direction to a witness involving
    the utilization of the witnesss physical characteristics in a manner that is
    not limited to making the record.  Witnesses have been asked to roll up their
    sleeves to reveal distinctive tattoos that go to identity, for example: see
R.
    v. Wilton
, 2012 SKQB 536, at para. 28, affd 2016 SKCA 131;

R. v.
    Hanoski
, 2011 ABPC 246, at paras. 37-38.  In
N.S.
, this Court
    accepted that a preliminary inquiry judge could consider ordering the testimony
    of a witness wearing a niqab to be video-taped under s. 136, provided such an
    order was warranted on a case-specific analysis: para. 16.   In the
    Bandidos prosecution, the preliminary inquiry judge ordered a video recording
    of the testimony of a Crown witness pursuant to s. 136, to preserve the
    evidence of hand signals, which the defence would later use to impeach the witnesss
    credibility:
R. v. Sandham et al.
(18 January 2007), London, 06/3079
    (Ont. C.J.). See also
R. v. Boyce
(2009), 248 C.C.C. (3d) 403, at
    para. 17.

[60]

Crown counsel seeks to distinguish these examples.  He submits they
    engage the preservation of testimony as part of the courts record-making
    function (fleet hand signals in
Sandham
for purposes of later
    impeachment, and the witnesss demeanour in
N.S.
for purposes of later
    court review), or the receipt of direct evidence akin to the witness being
    asked to speak or read specific words (the tattoo cases), and do not involve
    the creation of evidence for the purpose of forensic bodily sampling.  I am not
    persuaded by these distinctions.

[61]

The Crown does not dispute that Staff Sergeant Gillis was properly before
    the court to testify on relevant matters at the
voir dire
.  It follows
    that his testimony was not being made or created for the purpose of
    providing a bodily sample for forensic analysis. That the characteristics of
    his voice might or might not provide support for the defences evolving theory,
    depending upon a voice identification analysis, was entirely incidental to that
    properly compelled inquiry.

[62]

Nor does the Crown contest that defence counsel was entitled to ask Staff
    Sergeant Gillis to read the text of the anonymous phone call into the record.
    Indeed, the Crown does not even contest that the appellants voice
    identification expert was permitted to utilize the lower-quality recording of
    Staff Sergeant Gilliss voice for purposes of his forensic analysis.  In
    effect, the Crown only contests the courts authority to substitute one
    technology for another in relation to how his voice was recorded.
[5]

[63]

The rights of an accused should not turn on the particular level of
    technology utilized by the court, in my view. If it is permissible for an
    expert to listen to the court recording of a witnesss testimony for purposes
    of subjecting it to a voice identification comparison with another voice on
    another recording  as the Crown acknowledges  it should not become
    impermissible to do so simply because of a difference in the quality of the
    recording device used to record that testimony.  To the extent the giving of
    testimony in these circumstances may amount to the provision of a bodily sample
    for the purposes of forensic testing  as the Crown puts it  the sample is
    being provided in any event.

[64]

I see no material difference between the appellants situation here and one
    in which the court varies the technology by which the demeanour of the witness
    wearing a niqab may be assessed or the witnesss hand signals in the Bandidos
    case utilized, that is, by upgrading the record from a simple voice recording
    to include a video recording that features both voice and visual images.  Similarly,
    I see no material difference between the present situation and one in which the
    court directs a witness to adjust his or her clothing, or move his or her body
    in a particular way, to reveal an identifying feature such as a tattoo.   In
    each of these examples, the testimony is made available, or the witnesss other
    physical characteristics displayed, in a manner that may be used by the defence
    or Crown in a way that may, or may not, advance their interests, but that would
    not have been open to them had the court not intervened and provided for a
    non-standard recording or presentation of the witnesss testimony.

[65]

There can be little question that a court would have the power, for
    example, to permit an expert sitting in the courtroom to move to a particular
    position in the body of the courtroom where the expert would be better able to
    hear and observe a witness whose testimony was important to the experts
    analysis, whether the evidence was important for its substantive content or for
    the physical characteristics it displayed.  No one would suggest in such a
    scenario that the witness was being compelled to provide a bodily sample of his
    or her voice or other physical characteristic for forensic analysis purposes.

[66]

Suppose, as another example, that the meaning of a particular tattoo was
    significant in a case because it might identify whether a person was or was not
    associated with a particular gang.
[6]
And suppose a witness were testifying and maintained that he or she was not a
    member of a certain gang.  But counsel in the course of cross-examination
    noticed a portion of a tattoo appearing under the witnesss short-sleeved
    shirt.  If the court has the authority to cause the witness to lift up that
    sleeve so that those in the court can better observe the tattoo, would the
    court not be entitled, equally, to cause the witness to turn in a manner that
    would enable counsels expert in the courtroom to observe the tattoo for
    purposes of forming an opinion about whether it signalled membership in the
    gang?  In my opinion, it would.

[67]

The words required for the presentation of evidence  or for any other
    purpose of the court hearing are to be given a liberal, purposive and
    contextual interpretation.  As applied in these circumstances, I would not
    restrict them in the narrow fashion the Crown proposes.  Had that been the
    intention of the legislature, it would not have been necessary to add, in the
    middle of the s. 136(3) exemptions to the s. 136(1) prohibition, the words or
    the making of a record.  The fact that the making of a record is sandwiched
    between the expressions required for the presentation of evidence and for
    any other purpose of the hearing signals that the legislature intended a judges
    power under s. 136(3)(a) to authorize the making of an audio recording of what
    transpires in the courtroom to be broader than simply the preservation or
    making of a record.  This reinforces a broader interpretation of the judges
    authority under s. 136(3)(a).

[68]

The primary purpose of a court hearing is to provide an open and fair
    trial.  An accuseds
Charter

right to make full answer and
    defence is an essential ingredient to ensure that end and informs the
    interpretation of s. 136(1) as well.

[69]

Here, the appellant had raised a credible basis for pursuing his theory
    that Staff Sergeant Gillis had made the anonymous phone call and that he, or
    his team, had been responsible for the break-in at 76 Red Ash Drive.  Of
    course, nothing said in these reasons is to suggest that the appellant has made
    out that case, or even that it will be made out eventually.  But the appellant led
    sufficient evidence to persuade the pre-trial application judge that:

(i) there was good reason to be
    suspicious about the anonymous phone call (including the fact that the caller
    used a blocked number, did not identify himself, hung up abruptly, called the
    non-emergency line which enabled him to block the call and to hang up and not
    be traced, took 15 minutes to report the break-in, and declined to provide any
    information about the direction taken by the supposedly fleeing culprits);

(ii) the call was not made by an
    honest, concerned citizen who had witnessed the break-in (if not by a concerned
    citizen then by whom, in these circumstances, one might ask?);

(iii) Staff Sergeant Gillis had the
    ability to conduct a covert entry and make it look like a break-in, and indeed
    had done so in the course of Project Gladiator pursuant to the sneak and peek
    warrant;

(iv) he might well have had an
    interest in gaining access to 76 Red Ash Drive (motive);

(v) his explanation for having
    listened to the police tape of the anonymous call in advance of the hearing was
    unpersuasive;

(vi) there were reasons to be
    suspicious of Staff Sergeant Gillis, and it was reasonable to question whether
    he was the anonymous caller;

(vii) there were parts of the
    anonymous call where the caller sounded as if he might have been trying to
    disguise his voice; and,

(viii) there was some similarity
    between Staff Sergeant Gilliss voice as recorded in testimony and the voice of
    the anonymous caller on the police recording (albeit some significant
    differences as well, as he judged the comparison).

[70]

Although the pre-trial application judge concluded that there [were]
    reasons to be suspicious of Gillis (para. 132), he ultimately found that the
    evidence fell short of satisfying him that a member of the Durham Regional
    Police was responsible for the break-in and subsequent phone call.  Significantly,
    in arriving at that finding, he acknowledged that he was hampered in his
    attempts to compare Staff Sergeant Gilliss voice, as recorded on the courts
    lower-quality recording, with the voice of the anonymous caller, as recorded on
    the higher-quality police recording, by the limitations of voice comparison
    for someone who is not trained in voice identification (para. 130).  The
    appellant had been deprived of the ability to assist him with the evidence of
    an expert trained in voice comparison, however, by the decision to preclude the
    recording of Staff Sergeant Gilliss testimony on a high-quality microphone.

[71]

The pre-trial application judge rejected the appellants submission that
    the courts power to make the order sought was inherent in the appellants
    right to make full answer and defence.  He concluded that, while the appellant
    was not seeking an order that the Crown pursue a defence investigative request
    he was, in effect, asking the court to participate in and support such an
    investigation (para. 38).  Just as an accused does not have a constitutional
    right to direct the conduct of a criminal investigation or to conscript the
    police to undertake investigatory work for the accused  see
R. v. Darwish
,
    2010 ONCA 124, 100 O.R. (3d) 579, leave to appeal refused, [2010] S.C.C.A. No.
    124  it cannot, in effect, conscript the court to do the same thing.

[72]

In my view, that is not what the appellant was requesting, however.
    Conscripting the court to do something, or utilizing a court hearing for an
    extraneous purpose, is one thing.  Asking the court to permit the defence to
    utilize a better piece of technology than that provided by the court to record
    testimony that is being given in any event, and which the defence is admittedly
    entitled to analyze using the lower level of technology provided by the court
    in any event, is something else.

[73]

The right to make full answer and defence is a central constitutional
    right.  The manner in which it is pursued can vary in an infinite variety of
    ways and on a case-by-case basis.  In
N.S.
, at para. 50, Doherty J.A.
    emphasized the importance of full answer and defence to a fair trial from the
    perspective of both the accused and broader societal interests:

Full answer and defence is, in turn, a crucial component of a
    fair trial, a constitutionally protected right and the ultimate goal of the
    criminal process.  Trial fairness is not measured exclusively from the
    accuseds perspective but also takes account of broader societal interests.
    Those broader interests place a premium on a process that achieves accurate and
    reliable verdicts in a manner that respects the rights and dignity of all
    participants in the process, including, but not limited to, the accused. [Citations
    omitted].

[74]

Here, whether the appellants request is regarded as a component of his
    right to make full answer and defence, or whether the right to make full answer
    and defence in these circumstances is considered as a
Charter
right
    informing a broad and liberal interpretation of s. 136(3), the result is the
    same.

[75]

The court must be careful not to overstep the bounds of its adjudicative
    role.  But where the interests of the administration of justice in ensuring the
    fairness of a trial  the ultimate goal of the criminal process  and an
    accuseds right to make full answer and defence call for it, a Superior Court
    judge can act under s. 136(3) (or, as I shall explain, pursuant to his or her
    inherent jurisdiction) to advance those important ends.

[76]

I turn, then, to the issue of a Superior Courts inherent jurisdiction.

Inherent
    Jurisdiction

[77]

In
Endean v. British Columbia
, 2016 SCC 42, [2016] 2 S.C.R.
    162, at para. 24, Cromwell J. referred to the inherent jurisdiction of a Superior
    Court as an important but murky pool of residual authority and cautioned that
    it was important to determine first the scope of express grants of statutory
    authority before dipping into that pool.  Having concluded that the pre-trial application
    judge had the authority under s. 136(3) of the
Courts of Justice Act

to permit the appellant to utilize a high-quality microphone to record
    Staff Sergeant Gilliss testimony, it is strictly unnecessary for purposes of
    this appeal, therefore, to consider whether, absent that statutory power, he
    had the authority to do so pursuant to his inherent jurisdiction.

[78]

That said, in the event I am wrong in my interpretation of s. 136(3), I
    would add that, in my view, the pre-trial application judges authority to make
    the order sought could be founded on his inherent jurisdiction as a Superior Court
    judge.

[79]

Cromwell J. defined inherent jurisdiction in
Endean
, at para.
    23, as:

[A] reserve or fund of powers or a residual source of
    powers, which a superior court may draw upon as necessary whenever it is just
    or equitable to do so, and in particular to ensure the observance of the due
    process of law, to prevent improper vexation or oppression, to do justice
    between the parties and to secure a fair trial between them: I.H. Jacob, The
    Inherent Jurisdiction of the Court (1970), 23
Curr. Legal Probs.
23,
    at p. 51, cited with approval in, e.g.,
Ontario v. Criminal Lawyers
    Association of Ontario
, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 20;
R.
    v. Caron,
2011 SCC 5, [2011] 1 S.C.R. 78, at para. 24; and
MacMillan
    Bloedel Ltd. v. Simpson
, [1995] 4 S.C.R. 725, at paras. 29-31.

[80]

I accept, as Cromwell J. reiterated, at para. 24, that given the broad
    and loosely defined nature of these powers, they should be exercised sparingly
    and with caution:
Caron
, at para. 30. However, as I have explained above,
    the appellant had provided an evidentiary basis on the record before the
    pre-trial application judge that lent a credible air of reality to his theory
    that Staff Sergeant Gillis had made the anonymous call and that he, or his
    team, had been responsible for the break-in at 76 Red Ash Drive. That
    evidentiary basis is summarized above, at paras. 69 and 70 of these reasons.  Without
    repeating those factors here, I am satisfied, in the absence of counteracting
    evidence from the Crown, that the circumstances of this case would be
    sufficient to warrant the judge drawing upon his inherent jurisdiction  had it
    been necessary to do so  in order to ensure the observance of the due process
    of law, to prevent improper vexation or oppression,
to do
    justice between the parties and to secure a fair trial between them

    (emphasis added).

[81]

The case before us involves the exercise of power by a Superior Court
    judge.  As some of the examples referred to earlier in these reasons
    illustrate, however, a judge presiding in a statutory court would have similar
    authority to make the order requested pursuant to the implied powers of such a
    court to control its own process in order to administer justice fully and effectively.
    See
Ontario v. Criminal Lawyers Association of Ontario
, 2013 SCC 43,
    [2013] 3 S.C.R. 3, at para. 112 (per Fish J. in dissent, but not on this
    point);
R. v. Cunningham
, 2010 SCC 10, [2010] 1 S.C.R. 331, at paras.
    18-19;
R. v. 974649 Ontario Inc.
, 2001 SCC 81, [2001] 3 S.C.R. 575, at
    paras. 70-71.

[82]

I conclude, therefore, that the pre-trial application judge had the
    authority to make the order requested either pursuant to his powers under s.
    136(3) of the
Courts of Justice Act
, or, if not, pursuant to the
    inherent jurisdiction of a Superior Court judge.

Who had the Burden
    of Proof with Respect to the Identity of the Anonymous Caller?

[83]

The pre-trial application judge determined that the appellant bore the
    burden of establishing, on the balance of probabilities, that the original
    break-in was committed by an agent of the state, i.e., that it was Staff Sergeant
    Gillis who was responsible for the break-in and the anonymous telephone call.
    In doing so, he adopted an approach advanced neither by the Crown nor by the
    defence. He explained his approach in this fashion:

For the purposes of this application, I have concluded that it
    is not necessary for me to decide whether the implied invitation doctrine can
    apply to an entry into residential premises which are not open to the public.
    This is because I disagree with the basic premise for both Crown and defence
    positions; they have proceeded on the assumption that the initial break and
    enter underlies and is associated with the initial entry by the York Regional
    Police, such that the burden of proof relating to the initial break and enter
    is to be determined by reference to the burden of proof associated with the
    initial entry by the York Regional Police in response to the anonymous
    telephone call.

I have concluded that the appropriate approach in this case is
    to consider each of the three entries on to the property separately and to
    determine whether in any of the three situations there has been a s. 8
    violation.  Each incident must be judged independently from the others and the
    burden of proof is not necessarily the same for each.  If there has been a s. 8
    violation for any of the three entries, the next step is to consider the
    appropriate remedy under s. 24(2).  The three known entries or searches in this
    case are the initial break and enter, the entry by the police in response to
    the anonymous telephone call and the subsequent search by the police and
    seizure of the drugs in accordance with the search warrant.

[84]

Respectfully, the pre-trial application judge erred in adopting this
    approach.  The Crown and defence were correct in proceeding on the premise that
    the initial break-in underlies and is associated with the warrantless entry by the
    York Regional Police.

[85]

By dissecting the events into three separate entries  rather than
    examining the circumstances surrounding the warrantless entry by the police and
    the anonymous call and allegedly fake break-in, as a whole  and then assessing
    where the burden lay in the case of each entry, the pre-trial application judge
    effectively transferred the overall persuasive burden of proof to the
    appellant, requiring him to establish that the warrantless search was not
    justified.  Even though there is a general burden on an accused to persuade the
    court that his or her
Charter

rights have been infringed, once
    it is established that a search was a warrantless search  as the entry of the
    York Regional Police was, admittedly, here  the jurisprudence provides that
    the onus shifts to the Crown to justify the entry.  See
R. v. Collins
,
    [1987] 1 S.C.R. 265, at pp. 277-278.

[86]

The initial entry involving the break-in and the York Regional Police
    entry are inextricably intertwined in the circumstances.  The warrantless entry
    could not be justified (whatever the reasonable belief of the YRP officers and
    the circumstances confronting them on their arrival) if it had been triggered
    by an unlawful ruse carried out by state actors in the first place.  The Crown
    does not dispute this.  To hold otherwise  as the appellant points out  would
    be to permit the police to
Charter
-proof their conduct from
    constitutional scrutiny by the simple expedient of having one officer trick
    another into making a warrantless entry, on the theory that the blamelessness
    of the dupe officer would insulate the conduct from attack.  For this reason,
    in my opinion, the two entries  the allegedly fake break-in and subsequent
    anonymous phone call, and the responding entry by the York Regional Police
    are part of a single integrated chain of events that should not be considered,
    in silo fashion, as two independent and separate events.

[87]

Considering the two entries as a whole, the overall
burden of
    persuasion
rests with the Crown to justify the entry and the police
    conduct associated with it.  That said, there is an
evidentiary burden
to be met by the appellant in the circumstances.  The evidentiary burden
    required the appellant to lead evidence demonstrating a credible air of
    reality to the allegation that a state agent, Staff Sergeant Gillis, made the
    anonymous call and that he or his team was responsible for the initial
    break-in.  For the reasons set out at paragraphs 69-70 above, the appellant
    succeeded in doing just that.  The onus must then shift back to the Crown to counter
    the credible evidence led by the accused and to meet its ultimate persuasive
    burden of satisfying the court, on a balance of probabilities, that the police
    entry was justified.

[88]

But the Crown led no such counter-evidence, although it was within the
    Crowns own particular knowledge and power to do so, if such evidence existed.
    It was content to stand by Staff Sergeant Gilliss strong denial that he was
    the anonymous caller or that he or his team had staged the break-in.

[89]

Indeed, in the face of the preliminary foundation laid by the appellant,
    the Crown remained passive.  Although requested by the appellant to do so, it
    did not provide Staff Sergeant Gilliss cell phone records, which the pre-trial
    application judge observed would have been very helpful evidence.  The
    appellant argued that, since Staff Sergeant Gillis acknowledged he did not have
    a personal cell phone and only used his Durham Regional Police cell phone, his
    phone records would have shown whether he did or did not make the anonymous call
    to the non-emergency line on the morning in question.  Although requested by
    the appellant to do so, the Crown also did not provide information respecting Staff
    Sergeant Gilliss whereabouts which, the appellant argued, may have shown
    whether he was or was not near 76 Red Ash Drive on the morning in question.

[90]

It is evident from a review of the pre-trial application judges reasons
    on the
Charter

application that the question of who bore the
    onus of establishing that it was Staff Sergeant Gillis who made the anonymous
    call and instigated the break-in, was important to the pre-trial application judges
    analysis.  Had he approached his analysis from the perspective of a Crown onus,
    he may or may not have decided that the evidence fell short of satisfying him
    on a balance of probabilities that the Crown had justified the warrantless
    entry, instead of concluding, as he did, that the evidence [fell] short of
    satisfying [him] on a balance of probabilities that [Staff Sergeant Gillis] or
    any other member of the Durham Regional Police was responsible for the break-in
    at 76 Red Ash and the subsequent call to the York Regional Police.

[91]

The pre-trial application judge having applied an incorrect onus, a new
    trial is required to resolve that question.

DISPOSITION

[92]

For all the foregoing reasons, I would allow the appeal, set aside the
    convictions, and order a new trial.

Released:

MAY 30 2017                                    R.A.
    Blair J.A.

DD                                                    I
    agree Doherty J.A.

I
    agree P. Lauwers J.A.

[1]

Although the appeal is from the convictions registered by
    Justice Glass with a jury, the appellant takes no issue with the conduct of the
    trial by Glass J.  The issues on the appeal arise from rulings made on
    pre-trial
Charter

applications heard by
    Justice Michael K. McKelvey.

[2]

As explained by Mr. Addario in his factum, spectrographic
    voice analysis involves separating the vocal sound into its underlying
    components and then representing each of those components on a graph as a
    function of time.  The voice is analyzed not by listening to it, but by reading
    the computer-generated graph of the vocal components.  The precision of the
    analysis depends, amongst other things, on the ability of the microphone to
    capture the full range of vocal sounds in an undistorted fashion.

[3]

Staff Sergeant Gillis explained that he did not feel he could
    pursue the defence request because he was under cross-examination at the time
    and therefore prohibited from communicating with the Crown.

[4]
The Crown does not contest that ruling on appeal.

[5]

The Crown may well contest the reliability and admissibility
    of the experts opinion, but that is for a different time.

[6]

See
R. v. Abbey
, 2009 ONCA
    624, 97 O.R. (3d) 330, where a teardrop tattoo inscribed on the accuseds face
    was alleged to have certain potential meanings in urban street gang culture.


WARNING

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

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the complainant or a witness shall not
    be published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)      any of the
    following offences;

(i)       an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
    347,

(ii)      an offence
    under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on
    female), 156 (indecent assault on male) or 245 (common assault) or subsection
    246(1) (assault with intent) of the
Criminal Code
, chapter C-34 of the
    Revised Statutes of Canada, 1970, as it read immediately before January 4,
    1983, or

(iii)     an offence under
    subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual
    intercourse with a female between 14 and 16) or section 151 (seduction of a
    female between 16 and 18), 153 (sexual intercourse with step-daughter), 155
    (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian
    procuring defilement) or 167 (householder permitting defilement) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 1, 1988; or

(b)      two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2)      In proceedings in
    respect of the offences referred to in paragraph (1)(a) or (b), the presiding
    judge or justice shall

(a)      at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the complainant of the right to make an application for the order; and

(b)      on application
    made by the complainant, the prosecutor or any such witness, make the order.

(3)      In proceedings in
    respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)      An order made under
    this section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b).

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary
    conviction.

(2)      For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. E. H., 2017 ONCA 423

DATE: 20170524

DOCKET: C57809

Rouleau, Trotter and
    Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

E. H.

Appellant

Erika Chozik, for the appellant

Alison Wheeler, for the respondent

Heard: May 16, 2017

On appeal from the conviction entered on August 8, 2013 by
    Justice E.A. Ready of the Ontario Court of Justice, and from the sentence
    imposed on June 9, 2014  by Justice E.A. Ready.

REASONS FOR DECISION

Introduction

[1]

On May 16, 2017, we allowed the appeal with
    reasons to follow. These reasons explain why the appeal was allowed.

[2]

E. H. was found guilty of two counts of sexual
    assault and two counts of sexual interference. The offences were alleged to
    have occurred between 2002 and 2004. The complainants were the two daughters of
    his girlfriend at the time. They were 7-9 and 12-14 years old at the time of
    the offences, and 16 and 22 at trial.

[3]

The complainants testified that the appellant
    touched them in their bedrooms at night. The appellant testified and denied the
    allegations. The trial judge rejected his evidence. She accepted the complainants'
    evidence and concluded that the appellant's guilt was established beyond a
    reasonable doubt. The appellant was sentenced to 2 years less one-day
    imprisonment.

The Appeal

[4]

The appellant advances a number of grounds of
    appeal focused on the trial judge's credibility assessments. He argues that his
    sentence was too harsh. The appellant also alleges ineffective assistance of
    his trial counsel (not Ms. Chozik). Given that we allow the appeal on this
    basis, it is not necessary to address the other grounds of appeal, or the
    sentence appeal

[5]

The fresh evidence establishes that trial
    counsel failed to view the three-hour statement that the appellant gave to the
    police. The DVD containing the statement was defective. Trial counsel did not
    request another copy from the Crown. He relied upon a synopsis of the statement
    prepared by the police. He failed to review the statement with the appellant,
    despite his repeated requests. At the end of the Crown's case, trial counsel
    spoke to the Crown and conceded that the statement was voluntary and that the appellant
    could be cross-examined on it. He had not discussed with the appellant the
    circumstances surrounding the giving of the statement and he failed to forewarn
    the appellant of what was about to happen.

[6]

The appellant was taken by surprise when he was cross-examined
    on his statement, which he had given some 17 months earlier. He had difficulty
    recalling what he said to the police. He was cross-examined on isolated
    passages from the lengthy statement. He tried to explain the circumstances
    surrounding the giving of the statement and what he meant in the passages that
    were put to him. The trial Crown (not Ms. Wheeler) instructed the appellant to
    answer her questions more directly and to stop going off topic. Unaware of the
    details of the statement, trial counsel did not intervene, nor was he able to
    utilize re-examination to place the isolated passages in their proper context.

[7]

This aspect of the appellant's cross-examination
    was critical to the trial judge's rejection of his evidence. She found the
    appellant was "very evasive to the questions that were put to him" and had "his
    own agenda to get across to the court whenever he could." The trial judge
    accepted the Crown's submission that the appellant's answers were discrepant
    with his statement, holding: "These contradictions make his evidence at trial
    not believable" and "I cannot accept his evidence as credible due to these
    contradictions."

[8]

As part of his claim of ineffective assistance
    of trial counsel, the appellant swore an affidavit and was cross-examined. He
    explained the circumstances leading up to his attendance at the police station.
    He thought he was going to discuss a completely different incident, one that he
    had previously reported. He was taken by surprise when the police questioned
    him about offences alleged to have occurred many years earlier, in 2002 and
    2004.

[9]

The appellant testified that he was shocked to
    be cross-examined on his statement at trial. He felt unprepared and believed
    that it impacted adversely on his performance as a witness and his ability to
    explain the alleged inconsistencies that were put to him in cross-examination.
    Indeed, the appellant swears that his statement was not inconsistent with his
    trial testimony.

[10]

The appellant's background is relevant to what
    happened in this case. He came to Canada as a refugee from Iraq in 1998. English
    is not his first language. He was not offered an interpreter during his
    interview with the police. It is apparent that he struggled to understand many
    of the officer's questions. Although the appellant had the benefit of an interpreter
    at trial, he still struggled with terminology.

[11]

Ms. Wheeler does not dispute that the
    performance of trial counsel fell below the standard of reasonable professional
    assistance in a criminal case. We agree with this fair assessment. Given the
    live issues at trial and the circumstances under which the statement was
    obtained, the appellant has established that trial counsel's conduct fell short
    of what can reasonably expected: see
R. v. B. (G.B.)
,
2000 SCC 22, at para. 24.

[12]

Notwithstanding this failing, Ms. Wheeler urges
    us to be hesitant in concluding that the appellant has suffered prejudice in a
    manner that affected the outcome of his case.

[13]

The appellant was significantly prejudiced.
    Without notice from his counsel, he was cross-examined on a statement he gave
    without an interpreter 17-months earlier. He was totally unprepared for what
    happened. So was his trial counsel, who was unable to ensure that the appellant
    had a proper opportunity to explain the alleged inconsistencies. Nevertheless,
    and through no fault of her own, the trial judge rejected the appellant's
    evidence because of these "contradictions." Her findings, which were
    unequivocal and unqualified, were a reasonable response to the evidence before
    her. However, with hindsight, we now know that: (1) the appellant's very poor
    performance was due to trial counsel's ineffectiveness; and (2) the apparent "contradictions"
    between the appellant's statement and his trial evidence would have been either
    explained away or made more benign had the appellant been properly prepared, or
    had trial counsel been equipped to re-examine on these areas.

[14]

We are satisfied that the appellant has established
    a "reasonable possibility" that the outcome of the trial would have been
    different had trial counsel properly discharged his professional obligations:
    see
R. v. Joanisse
(1995), 102 C.C.C. (3d) 35
    (Ont. C.A.), p. 64 and
R. v. B. (M.)
,
2009
    ONCA 524, at paras. 10 and 29.

Disposition

[15]

The appeal is allowed, the convictions are set
    aside and a new trial is ordered.

"Paul Rouleau J.A."

"G.T. Trotter J.A."

"David Paciocco J.A."


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Hamade, 2017 ONCA 387

DATE: 20170512

DOCKET: C61948

Doherty, MacFarland and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rabih Hamade

Appellant

Erica Tanny, for the appellant

Jennifer Epstein, for the respondent

Heard and released orally:  May 9, 2017

On appeal from the conviction entered by Justice Julie
    Bourgeois of the Ontario Court of Justice on January 15, 2016.

REASONS FOR DECISION

[1]

We appreciate counsel for the appellants careful and thorough
    submissions.  We do not, however, agree with those submissions.

[2]

The Crown witness, Bonney, presented various difficulties to all
    involved in the trial.  Eventually, the trial judge held, based primarily on
    Bonneys near recantation of his evidence in-chief during his re-examination,
    that the Crown would be allowed to cross-examine Bonney on a statement he had
    given to the police the night of the assault.  That statement was consistent
    with Bonnies evidence in-chief, but inconsistent, both with his
    cross-examination and his re-examination.

[3]

Counsel for the appellant argues that Crown counsels re-examination
    was inappropriate and that without the inappropriate re-examination, the possibility
    of cross-examining Bonney would never have arisen.

[4]

In our view, counsels re-examination was appropriate.  In
    cross-examination, Bonney had indicated that he really could not be sure about
    the accuracy of his memory in relation to anything that had happened on the
    night in question because of his ongoing drug abuse and other matters.  Crown
    counsel was entitled to re-examine Bonney on exactly what he could and could
    not remember.  Bonneys response, which identified for the first time someone
    other than the appellant as the perpetrator of the assault no doubt came as a
    surprise to Crown counsel.  The answer, however, did not affect the propriety
    of the question.  The re-examination was proper and led to the inconsistencies
    which triggered the Crowns application under s. 9 of the
Canada Evidence
    Act
.

[5]

The Crown sought to cross-examine
    Bonney on his statement pursuant to s. 9(1) of the Canada Evidence Act.  We are
    satisfied that it was open to the trial judge, based on the changes in Bonneys
    evidence, to find that Bonney was adverse to the Crown and could be
    cross-examined on his statement.  Indeed, it seems to us that the trial judge
    could well have gone further and made a finding of hostility, justifying
    cross-examination at large.  The trial judge was not asked, however, to make
    that finding.

[6]

It may be that part of the
    cross-examination went beyond the proper limits of cross-examination on the
    statement made to the police.  However, the main focus of the cross-examination
    was that statement.

[7]

Even if the cross-examination went
    beyond cross-examination on the statement, we see no prejudice to the
    appellant.  The cross-examination, apart from cross-examination on the
    statement, really did not advance the Crowns case, or impair Bonneys
    credibility.  He simply repeated on several occasions that he genuinely did not
    have a clear memory of what had happened.

[8]

The trial judges reasons at the end of
    the trial demonstrate a full appreciation of Bonneys evidence and the various
    inconsistencies in that evidence.  She fully described the evolution of his
    testimony over the course of the trial.  It was open to her as the trier of
    fact to accept Bonneys initial version of the events.  She was aware that
    there were serious credibility concerns associated with Bonneys evidence.  She
    properly looked for evidence capable of supporting his testimony.  In our view,
    she made no error in accepting Bonneys initial version of the relevant
    events.

[9]

The second ground of appeal relates to
    the trial judges fact-finding.  The trial judge was required to look at the
    totality of the circumstances in making the findings which eventually led to
    her verdict.  We think it was open to her on the entirety of the evidence to
    make the findings she did as they related to the nature of Bonneys injuries,
    the cause of those injuries, and the location in the apartment where the
    injuries were inflicted.  On the totality of the circumstantial evidence, it
    was open to the trial judge, particularly bearing in mind her acceptance of
    Bonneys evidence in-chief, to conclude, beyond a reasonable doubt, that the
    appellant was the assailant.  We note that the appellant did not testify.

[10]

The parties agree that the conviction
    on the charge of assault with a weapon should be stayed on the basis of
R.
    v. Kienapple
, [1975] 1 S.C.R. 729
.  We so order, otherwise the appeal is dismissed.

Doherty J.A.

J. MacFarland J.A.

B.W. Miller J.A.


WARNING

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

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)      any of the following offences;

(i)       an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210,
    211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1,
    286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as it read
    at any time before the day on which this subparagraph comes into force, if the
    conduct alleged involves a violation of the complainants sexual integrity and
    that conduct would be an offence referred to in subparagraph (i) if it occurred
    on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),
    effective December 6, 2014 (Act, s. 49).

(b)      two or more offences being dealt with in
    the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)      In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)      at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)      on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)      In proceedings in respect of an offence
    under section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)      An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. I.W.S., 2017 ONCA 409

DATE: 20170525

DOCKET: C58989

MacPherson, Blair and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

I.W.S.

Appellant

Melanie Webb, for the appellant

Nancy Dennison, for the respondent

Heard: May 17, 2017

On appeal from the conviction entered on June 17, 2013 by
    Justice D. Shaw of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual touching by Shaw J. of the
    Superior Court of Justice. He received a sentence of two years and six months
    imprisonment less 647 days credit for pre-sentence custody. The appellant
    appeals the conviction.

[2]

The appellant stood trial for the sexual assault and sexual touching of the complainant, his daughter. The complainant was 16 years old at the time of the offences. In early March, the complainant was drinking with her friends in the basement of the home that she, her father, and her younger stepsister lived in.

[3]

After her friends, other than I.F., left, the complainant continued to
    drink with the appellant, the appellants cousin, and Mr. F. on the main floor
    of the home.  The complainant became drunk and went upstairs to her bedroom to
    go to sleep leaving the appellant, the appellants cousin, and Mr. F. on the
    main floor of the home. A few minutes afterwards, the appellant went upstairs.

[4]

The complainant had passed out, fully clothed, on her bed. She awoke to
    someone pulling down her pants and underwear. She kept her eyes closed as she
    was scared. She testified that she knew it was the appellant because she could
    feel the bristles from his facial hair when he placed his mouth on her
    genitalia. The assailant then proceeded to have sexual intercourse with her.

[5]

When the appellant did not return to continue the card game, his cousin
    went upstairs to check on him. The complainant testified that the sexual
    intercourse ended when the appellants cousin called out the appellants name
    just outside the bedroom door.

[6]

The complainant got up, sneaked past the spare room, where she heard the
    appellant and the appellants cousin talking, and fled the home with Mr. F.
    They went to his home. The police were contacted the next day. The complainant
    gave a videotaped statement describing the incident to the Ontario provincial
    police on March 6, 2011.

[7]

The Crown case was that the appellant had committed the sexual assault. The Crown led with testimony from the complainant, Mr. F., and the appellant's cousin. Crown counsel also adduced the evidence of J.S., the complainant's cousin who testified that the appellant had by way of Facebook message stated that he had "snagged" someone on the day of the incident (which meant that he had sex with someone).

[8]

The defence case was that the appellant did not commit the sexual assault. Defence counsel submitted that the complainant was intoxicated and that there was nothing to corroborate the complainant's evidence. Defence counsel also submitted that the complainant's evidence of the prickles that she felt on her genitalia during the incident meant the appellant could not have been the assailant since he shaved daily. Defence counsel also argued that the Facebook entries were not authored by the appellant.

[9]

The appellant was found guilty of sexual touching and sexual assault.
    Pursuant to the principles in
Kienapple
, a conviction was entered on
    the charge of sexual touching and a stay was entered on the charge of sexual
    assault.

[10]

The appellant advances four grounds of appeal.

[11]

First, the appellant contends that the trial judge applied different
    standards of scrutiny to the evidence of the complainant and the evidence of
    the appellant.

[12]

We do not accept this submission. The trial judge provided concrete
    reasons for rejecting the appellants evidence. He also identified, and
    addressed, inconsistencies in the evidence, including the complainants
    testimony.

[13]

Second, the appellant submits that the trial judge failed to properly apply the W(D) principles in dealing with the evidence adduced by the Crown. In particular, the appellant submits that the trial judge did not critically analyze the complainant's evidence and merely accepted it. The main example cited by the appellant on this issue is the fact that only at the trial (and not in her statement to the police or in her testimony at the preliminary inquiry) did the complainant indicate that she knew that the appellant was the assailant because she could feel the prickles from his unshaven facial hair.

[14]

Again, we reject this submission, and especially so with respect to the
    trial judges treatment of the complainants evidence. The trial judge
    explicitly instructed himself on
W(D)
and cautioned that a criminal
    trial is not a credibility contest where the trier of fact must choose whether
    to believe one side or the other. He then carefully reviewed the evidence,
    including some of the complainants evidence that conflicted with the evidence
    of I.F. He moved through each of the three
W(D)
steps and reached a
    conclusion. There is nothing wrong in the trial judges analytic process in
    reaching that conclusion. On the facial hair issue, the complainant was asked a
    direct question at trial: how do you know it was your Dad? and she answered
    it. She was not asked this question when she made her statement to the police
    and the issue was barely touched on at the preliminary inquiry, in cross-examination
    at trial, and in the defence closing submissions at trial.

[15]

Third, the appellant asserts that the trial judge failed to analyze critically
    the evidence pertaining to the Facebook messages.

[16]

We disagree. As the trial judge recognized, the Facebook messages were
    telling evidence against the appellant. The trial judge reasoned:

[125]      As Mr. [S] himself acknowledged, the Facebook
    conversations advising that Mr. [F] had been at the house would mean that the
    person writing the message would have to have been at Mr. [Ss] house to know
    that fact. This points to the messages having come from the house and again
    goes back to Mr. [Ss] suggestions that because it was not him chatting, it had
    to be either Ms. [K] or Ms. [C]. Both women said they were not using Mr. [Ss]
    Facebook account. It is unrealistic to conclude that either of these two women
    were pretending to be Mr. [S], hitting on [J.S.], as a self-described hot old
    man and chatting about snagging and having oral sex with a woman, and moreover,
    doing so while avoiding any notice of Mr. [S]. I cannot accept his explanation
    that they could have done so because he was careful to preserve their privacy
    while they were on the computer, avoiding looking at what they were doing.

[126]   [I]t would fly in the face of reason to accept the
    explanation of Mr. [S] that someone else was writing on the Facebook page.

[128]   I find the Facebook issue is significant in assessing
    Mr. [Ss] credibility.

[17]

In our view, this reasoning is fair and persuasive.

[18]

Fourth, the appellant argues that the trial judge failed to consider the
    absence of any medical or forensic evidence of a sexual assault.

[19]

In our view, the evidence the trial judge accepted  especially the
    complainants testimony  was sufficient to ground a conviction.

[20]

The appeal is dismissed.

J.C. MacPherson J.A.

R.A. Blair J.A.

Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Ibrahim, 2017 ONCA 400

DATE: 20170518

DOCKET: C62297

Hoy A.C.J.O., LaForme and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Samir Ibrahim

Appellant

Samir Ibrahim, appearing in person

Rebecca De Filippis, for the respondent

Heard and released orally:  May 8, 2017

On appeal from the order of May 26, 2016 of Justice Hill
    of the Superior Court of Justice, dismissing the appeal of a conviction entered
    on April 1, 2015 by Justice Douglas of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant, Samir Ibrahim, does not come to this court as of right.
    Section 839(1) of the
Criminal Code
permits an appeal to this court
    from a summary conviction only where a question of law alone is raised and only
    where leave is granted.  Leave to appeal is granted sparingly.  It is not
    enough that the appeal raises a question of law.

[2]

In
R. v. R.(R.)
, 2008 ONCA 497, 90 O.R. (3d) 641, this court described the
    restricted circumstances in which leave to appeal may be granted from a summary
    conviction appeal decision:  first, in cases where the merits of the proposed
    question of law are arguable, even if not strong, and the proposed question of
    law has significance to the administration of justice beyond the four corners
    of the case; second, in cases where there appears to be a clear error even if
    it cannot be said that the error has significance beyond the specific case
    before the court.

[3]

The proposed question of law does not have significance to the
    administration of justice beyond the four corners of the case and we are not
    persuaded there is a clear error.

[4]

Accordingly, leave to appeal is denied.

Alexandra Hoy A.C.J.O.

H.S. LaForme J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Klammer, 2017 ONCA 416

DATE: 20170519

DOCKET: C62339

Hoy A.C.J.O., Feldman and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dustin Klammer

Appellant

Mark C. Halfyard, appearing as
amicus

Kelvin Ramchand, for the respondent

Heard and released orally:  May 9, 2017

On appeal from the conviction entered by Justice S.E.
    Healey of the Superior Court of Justice on December 23, 2015 and the sentence
    imposed on June 17, 2016.

REASONS FOR DECISION

[1]

We reject the appellants argument that his conviction for trafficking
    in fentanyl (six 100 microgram fentanyl patches), possession of fentanyl for
    the purpose of trafficking, and possession of the proceeds of crime are
    unreasonable because the circumstantial evidence could not exclude other
    reasonable inferences that were inconsistent with guilt.

[2]

We agree with the trial judge that, having regard to the interactions
    between the undercover officer, the intermediary and the appellant after the
    officer observed the individual wearing the plaid shorts, the only reasonable
    inference was that the appellant, and not the individual wearing the plaid
    shorts, was in charge of the terms on which the fentanyl would change hands
    and knowingly accepted the proceeds of crime.  Having regard to the evidence as
    a whole, guilt was the only reasonable inference.

[3]

However, we agree with the appellant
    that the trial judge erred in principle in considering his sale of oxycodone
    and conviction for trafficking of that drug while his trial on those charges
    was pending as an aggravating factor (see
R. v. Skolnick
, [1982] 2 S.C.R. 47) and that this error affected the
    sentence he imposed.

[4]

The trial judge sentenced this addict
    to a period of custody of 33 months on all three counts concurrently.  In our
    view, having regard to all of the circumstances of the appellant and the
    quantity of fentanyl at issue, a sentence of 20 months is reasonable for this
    first-time offender.

[5]

Accordingly, the appeal against
    conviction is dismissed, leave to appeal sentence is granted, the appeal of
    sentence is allowed, and the custodial portion of the appellants sentence is
    reduced to 20 months.  The appellant has served seven months, leaving the remaining
    period of 13 months to be served in a reformatory.

Alexandra Hoy A.C.J.O.

K. Feldman J.A.

M.L. Benotto J.A.