



COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Schertzer, 2015 ONCA 259

DATE: 20150420

DOCKET: C56396, C56397, C56398, C56399, C56400 & C56558

Watt, Tulloch and Benotto JJ.A

BETWEEN

Her Majesty the Queen

Respondent/Appellant

by way of cross-appeal

and

John Schertzer, Steven Correia, Ned Maodus,
    Joseph Miched                         and Raymond Pollard

Appellants/Respondents

by way of cross-appeal

Alan Gold and Melanie Webb, for the appellant/respondent
    by way of cross-appeal John Schertzer

Joanne Mulcahy, for the appellant/respondent by way of
    cross-appeal Steven Correia

Patrick Ducharme, for the appellant/respondent by way of
    cross-appeal Ned Maodus

Peter Brauti and Maureen Salama, for the
    appellant/respondent by way of cross-appeal Joseph Miched

Michael Lacy, for the appellant/respondent by way of
    cross-appeal Raymond Pollard

R. W. Hubbard and M. Lai, for the respondent/appellant
    by way of cross-appeal

Heard: November 4-7, 2014

On appeal from the conviction entered on June 27, 2012
    and the sentence imposed on January 4, 2013 by Justice Gladys I. Pardu of the Superior
    Court of Justice, sitting with a jury.

Benotto

J.A.:

Overview

[1]

The five appellants were members of the drug squad of the Toronto Police
    Service (TPS) Central Field Command (CFC).  All were convicted of attempting to
    obstruct justice.  Three - Pollard, Maodus and Correia  were also convicted of
    perjury.

[2]

The central issue at trial was the timing of the search of an apartment
    where Ho Bing Pang resided.  The Crown alleged that the appellants searched the
    apartment before the search warrant physically arrived at the premises. The
    appellants maintained that they did not search the residence until after the
    warrant arrived.

[3]

The attempt to obstruct justice count alleged that all of the appellants
    practised deception, including by falsifying their notes and/or by testifying
    falsely, in order to conceal that the search of Pangs apartment had been done
    without a warrant. The perjury counts particularized that Pollard, Maodus and
    Correia gave false evidence at Pangs preliminary inquiry.  Miched was charged on
    a separate perjury count but was acquitted.

[4]

The appellants were each sentenced to a 45-day conditional sentence.

[5]

The appellants appeal the convictions and the respondent, the Crown,
    cross-appeals the sentences as unfit.  The Crown submits that a three-year
    sentence was appropriate.

Facts

The timing of the warrant

[6]

On February 18, 1998, the CFC drug squad arrested Pang and Yin Leong
    Chui for possession of two ounces of heroin. The team was led by Schertzer and
    was composed of the other four appellants and additional officers.

[7]

The team had been conducting surveillance on Chui, a suspected heroin
    dealer, that day. At around 6:40 p.m., Pang was observed meeting with Chiu in
    the parking lot of a plaza.  After a brief conversation, Pang drove into the
    underground parking garage of an apartment building next door to the plaza.  Chiu
    drove to the front of the same apartment building and waited with his engine
    running.

[8]

Correia followed Pang into the underground parking and then joined him
    in the elevator going up.  Pang got out at the 14th floor.  Correia got out at
    the 15th floor, ran down the stairs and saw someone go into Unit 1404. Correia
    waited in the hallway and observed Pang carrying a white plastic bag. Both men
    went back down to the underground parking garage.

[9]

Pangs vehicle left the underground parking garage and drove to the
    front of the apartment building.  Pang exited his vehicle, carrying the white
    plastic bag.  He got into Chuis car and handed him the bag.  Schertzer ordered
    a take-down.

[10]

Just
    before 7:00 p.m., Pang and Chui were arrested in front of Pangs apartment
    building. The white plastic bag, containing two ounces of heroin, was seized.
    On the drive to the police station, Pang told an officer that there was more
    heroin in a nightstand in his bedroom in Unit 1404.

[11]

Schertzer
    decided not to search Pangs apartment based on exigency. Schertzer testified
    that anyone inside who saw the arrest would likely have destroyed the evidence
    by the time the team made it to the apartment. Accordingly, Schertzer decided
    to get a search warrant.

[12]

It
    was generally accepted that the evidence at trial supported two different
    scenarios.  The appellants either entered Pangs apartment around 7 p.m.
    without a warrant or around 10:45 p.m. with a warrant.

[13]

Miched
    had been sent to the police station at 53 Division to apply for warrants for
    Chuis and Pangs residences. Miched submitted documents to a justice of the
    peace by fax at 10:00 p.m. He then received a transmission at 10:32 p.m. from
    the justice of the peace authorizing the search of Pangs apartment.  The
    search warrant had to be photocopied before he left the station.  Miched
    testified that he left the third floor of 53 Division, skipped down the
    stairs, and drove to the apartment building as fast as he could.  On cross-examination,
    Miched said that he ran red lights but admitted that he was not in a marked car
    and had no siren or flashing lights. He went to the fourteenth floor. Schertzer
    and Maodus used Pangs keys to open the apartment door.  Miched served the warrant
    on an occupant inside the apartment.  Miched then immediately left to return to
    53 Division where, at 10:54 p.m. he faxed an acknowledgment that the Chui
    warrant had been refused.

[14]

The
    Crowns theory was Miched could not have done all of the things he said that he
    did, including making the trip from 53 Division to the Pang residence and back,
    in the 22 minutes between 10:32 and 10:54 p.m.  Therefore the appellants must
    have entered the premises before the search warrant arrived.

[15]

The
    Crown relied on the testimony of another officer, Detective Kerry Watkins, who
    conducted two one-way time trials from 53 Division to Pangs apartment.  The
    time trials were conducted more than 14 years after the search of Pangs
    apartment, the first starting at 10:03 p.m., with the second starting at 10:55
    p.m.

[16]

Watkins
    started timing himself on the third floor of 53 Division.  He walked to the
    parking garage and then drove at the speed-limit, 50 or 60 kilometres per hour
    (kph) on the various roads, to Pangs former apartment building. He walked to
    the building, entered through security, took the elevator to the 14th floor,
    and then walked to Unit 1404.  The first one-way trip took 27 minutes; the
    second took 20 minutes 31 seconds.  The driving distance one-way was about 12
    kilometres.

[17]

The
    Crown submitted to the jury in closing submissions that,  at the very least,
    seven of the 22 minutes would have been taken up with non-driving activities,
    leaving 15 minutes to travel 24 kilometres.  This would have required Miched to
    drive, accounting for some slowing down or stopping at intersections, in excess
    100 kph through the city, including through residential neighbourhoods, without
    lights or siren.  The Crown forcefully urged the jury to conclude that it was
    nonsense that Miched actually did something so ridiculously dangerous,
    especially when getting the warrant to the rest of the squad was not an
    emergency situation.

[18]

The
    Crown relied on the evidence of Pangs brother Ho Zhong Pang (Zhong) and his
    former sister-in-law Miao Fen Lin (Fen).  Zhong, Fen, and their
    seven-year-old daughter lived in Unit 1404 with Pang. Fen testified that
    officers first entered her apartment after she had prepared dinner but before
    she and her daughter had eaten.  Upon refreshing her memory from the
    preliminary inquiry transcript, Fen said it was around seven oclockish. Her
    daughter had not yet gone to bed; that usually happened around 10 p.m.  Zhong
    was not home at the time.  The officers did not present her with a search
    warrant. Both Fen and Zhong testified that after Zhong returned home, at some
    time between 11:00 p.m. and 11:45 p.m., one or two officers returned to Unit
    1404 and gave Zhong a search warrant.  The officer or officers took away a
    plastic bag that had been left near the front door of the apartment.

[19]

The
    appellants memo book notes indicated that the search took place after the
    warrant arrived.  Schertzers, Correias, and Moadus notes expressly stated
    that the search warrant was executed at 10:45 p.m. and that the officers left
    the apartment at 11:30 p.m.  Pollards notes appeared to state that the search
    warrant was executed at 8:45 p.m., although he explained at trial that this was
    a mistake and he had meant to write 10:45 p.m.  Pollards notes state that he
    left the apartment at 11:30 p.m. This meant that Schertzer, Pollard, Maodus and
    Correia waited outside of Unit 1404 for well over three hours after the arrest
    of Pang and Chui. The appellants notes are consistent in stating that only Fen
    and her daughter were home at the time of the search.

[20]

The
    trial judge concluded in her sentencing reasons that the jurys guilty verdicts
    indicated that it was found as fact that the appellants entered the apartment
    before the warrant arrived.

[21]

The
    Crown alleged that there were other false documents produced by the
    appellants.  Miched prepared a Supplementary Record of Arrest, dated February
    18, 1998, at 11:34 p.m., which stated, A CDSA search warrant was executed on
    the accused PANGs residence... Schertzer signed off on this document as the
    Officer in Charge.  In her sentencing reasons, the trial judge found that with
    this document Miched and Schertzer intended to conceal from Pangs defence
    counsel the warrantless nature of the search.  On February 20, 1998, Correia
    swore an information to obtain (ITO) a search warrant for Fens
    safety-deposit box, which the appellants learned of during their search of the
    apartment.  Among other potentially untrue assertions, Correias affidavit
    stated, At the time the search warrant was executed...  In her sentencing
    reasons, the trial judge concluded that she was satisfied beyond a reasonable
    doubt that this statement was deceptive as Correia knew that admitting the
    search was warrantless would make it unlikely that a further warrant would be granted.

[22]

The
    basis for the obstruction of justice convictions was the misleading statements
    about the time of the search set out in the memo book notes, the Supplementary
    Record of Arrest, and the ITO for Fens safety-deposit box.  The basis for the
    perjury convictions against Correia, Maodus and Pollard was their testimony at
    the Pang preliminary inquiry that the search of the apartment occurred after
    the warrant arrived.

The TPS memo to employees

[23]

On
    November 4, 2010, the TPS, at the request of Crown counsel, delivered a memo to
    its employees who were named as potential witnesses in the trial. The memo
    informed the TPS employees that defence counsel could only interview them if
    they were willing to be interviewed. It required the potential witnesses to advise
    TPS if they intended to submit to an interview or otherwise provide information
    to the defence so that arrangements could be made to have an officer from the
    Professional Standards Special Task Force present to audio record and/or take
    notes of the interview.

[24]

During
    the trial, the appellants requested a stay of the proceedings on the basis that
    this memo was an abuse of process.  The trial judge dismissed the application.

The Conviction AppealS

[25]

The
    appellants raise nine grounds of appeal:

·

1)       The trial judge erred in leaving courtroom testimony as
    a possible mode of committing the attempt to obstruct justice charge in the
    relevant count, thereby violating s. 13 of the
Canadian Charter of Rights
    and Freedoms
;

·

2)       The trial judge erred in instructing the jury that they
    could convict the appellants of attempting to obstruct justice by other means
    not particularized in the indictment;

·

3)       The admission of the experiment evidence of Detective
    Watkins rendered the trial unfair;

·

4)       The trial judge erred in failing to adequately instruct
    the jury about the corroboration requirement on the perjury offences;

·

5)       The Crowns closing address resulted in a miscarriage of
    justice as it was unfair and invited the jury to engage in speculative
    reasoning;

·

6)       The trial judge failed to provide the jury with a
    specific instruction on the law of exigency in relation to searches and
    seizures;

·

7)       The trial judges lost evidence instruction was in
    error since it allowed the jury to use the fact of the lost evidence as
    evidence of guilt;

·

8)       The guilty verdicts were not ones that a properly
    instructed jury, acting reasonably and judicially, could have returned; and

·

9)       The TPS memo to potential witnesses irreparably
    compromised the integrity of the proceedings, prejudiced the appellants, and
    amounted to an abuse of process.

Issue No. 1: Did the trial judge err in leaving courtroom
    testimony as a possible mode of committing the count of attempt to obstruct
    justice?

[26]

The
    obstruction of justice count charged all of the accused with attempting to
    obstruct justice by making false or misleading entries in their memo books,
    and/or
by lying to the court in their testimony
 (emphasis added).  All
    of the appellants, except for Schertzer, testified at the Pang preliminary
    inquiry.

Appellants Position

[27]

The
    appellants submit that the trial judge erred when she told the jury they could
    use the preliminary inquiry testimony as a basis to convict on the attempt to
    obstruct justice charge. They argue that their testimony at Pangs preliminary
    hearing was compelled and that they are therefore entitled to the protection of
    s. 13 of the
Charter
.  Section 13 reads:

A witness who testifies in any proceedings has the
    right not to have any incriminating evidence so given used to incriminate that
    witness in any other proceedings, except in a prosecution for perjury or for
    the giving of contradictory evidence.

[28]

The
    offence of attempting to obstruct justice is not listed as an exception to the
    right against self-crimination in s. 13. The essential elements of perjury and
    of attempting to obstruct justice are not the same.

[29]

The
    circumstances in which s. 13 was enacted and the legislative history of s. 5 of
    the
Canada Evidence Act
, R.S.C. 1985, c. C-5 (
CEA
), confirm
    that the offences of perjury and giving contradictory evidence are the only
    exceptions to the exclusionary rule.  Section 5 of the
CEA
is similar
    to, and predates, s. 13 of the
Charter
.  In
R. v. Chaperon
(1979), 52 C.C.C. (2d) 85 (Ont. C.A.), this court held the offence of giving
    contradictory evidence was not contemplated by s. 5 of the
CEA
in force
    at the time, which made an exception for prosecutions for perjury only.  
    Section 13 was enacted three years after
Chaperon
and specifically
    included the offences of perjury and of giving contradictory evidence in the
    listed exceptions to the exclusionary rule. No other offence was added. In
    1997, s. 5 of the
CEA
was amended to include the offence of giving
    contradictory evidence as the sole additional exception. Therefore, it cannot
    be said that the offence of attempting to obstruct justice is excluded from the
    operation of s. 13. The prior testimony cannot be a basis for the obstruction
    of justice charges, as the evidence was tendered in violation of the
    appellants
Charter

rights. This ground of appeal also applies to
    Schertzer even though he did not testify at the Pang preliminary inquiry.  The
    appellants submit that the jury may have used the evidence against him since all
    of the appellants were joined at the hip at trial.

Crowns Position

[30]

The
    Crown submits that this ground of appeal cannot apply to Schertzer, as he did
    not testify at the preliminary inquiry. The other four appellants were also
    charged with perjury. (Miched was acquitted based on the wording of the
    indictment.)  With respect to the other three appellants, their testimony at
    Pangs preliminary inquiry was properly before the jury in relation to the
    perjury charges against them.

[31]

The
    instruction from the trial judge that their testimony could also be used with
    respect to the attempt to obstruct justice charges was harmless because they would
    have been convicted anywayas was Schertzeron the basis of their notes. As
    Schertzer did not perjure himself, his conviction for attempting to obstruct
    justice means that the jury concluded that his notes were false. Accordingly,
    since Schertzers notes were falsified in the same manner as those of the four
    appellants who did testify, their convictions of attempting to obstruct justice
    were inevitable on the basis of their false notes. The instruction requested by
    the appellants would have unnecessarily complicated the already lengthy jury
    instruction. The attempt to obstruct justice and the perjury counts all relied
    on the same factual finding: the accused searched Pangs apartment without a
    warrant and covered this up.

[32]

In
    any event, an obstruct justice conviction may be founded on proof of perjury:
R.
    v. Simon
(1979), 45 C.C.C. (2d) 510 (Ont. C.A.);
R. v. Moore
(1980),
    52 C.C.C. (2d) 202 (B.C.C.A.);
R. v. Staranchuk
(1983), 8 C.C.C. (3d)
    150 (Sask. C.A.), affd [1985] 1 S.C.R. 439.

Analysis of Issue No.
    1

[33]

I
    would reject the appellants submissions for two reasons. First, s. 13 is not
    engaged because the testimony itself was the
actus reus
of the offence.
    Since the evidence was not truthful there was no
quid pro quo
as
    envisaged by the s. 13 jurisprudence.  Second, even if section 13 did apply,
    the result would not have been affected because, based on the jurys findings,
    the convictions were inevitable.

The
    Actus Reus/Quid Pro Quo

[34]

In
Staranchuk
, the Supreme Court held that compelled testimony forming the
actus
    reus
of crimes should be admissible in the prosecution of those crimes. The
    court endorsed, at pp. 439-40, the following passage from the reasons of the
    Court of Appeal for Saskatchewan:

We believe that a distinction must be drawn between those
    occasions where a person in the course of providing evidence under oath is
    required, when answering truthfully, to disclose the commission by him,
    previously, of an offence (in which event, generally speaking, that evidence
    cannot subsequently be used against him) and those occasions where a person
    makes false statements, while under oath, as a result of which he is charged
    with giving false evidence. In the latter case the very essence of the offence,
    and its
actus reus
, is the giving of the false testimony. In this case
    the Crown sought to place the two exhibits into evidence to prove the
actus
    reus
of the offences charged and, if that evidence was otherwise
    admissible, it ought to have been received.

[35]

In
    its reasons, the Court of Appeal for Saskatchewan stated further, at

p. 153:

Even if  the accused gave incriminating evidence, within the
    meaning of s. 13 of the
Charter
the section would still be of no avail
    to the accused  because his allegedly false evidence forms the very substance
    of the offence with which he is now charged.

[36]

That
    s. 13 is not available to an accused when false evidence forms the substance of
    the offence charged is consistent with the rationale for the s. 13 protection
    in the first place.  This rationale has been referred to as the
quid pro quo
.

[37]

In
R. v. Henry
, 2005 SCC 76, [2005] 3 S.C.R. 609, at para. 22, Binnie J.
    wrote for the court:

The consistent theme in the s. 13 jurisprudence is that
    "the purpose of s. 13 ... is to protect individuals from being indirectly
    compelled to incriminate themselves".... That same purpose was flagged in
    [
R. v. Noël
, 2002 SCC 67, [2002] 3 S.C.R. 433], the Court's most recent
    examination of s. 13, by Arbour J., at para. 21:

Section 13 reflects a long-standing form of statutory
    protection against
compulsory
self-incrimination in Canadian law, and is
    best understood by reference to s. 5 of the
Canada Evidence Act
. Like
    the statutory protection, the constitutional one represents what Fish J.A.
    called a
quid pro quo
: when a witness
who is compelled
to give
    evidence in a court proceeding is exposed to the risk of self-incrimination,
    the state offers protection against the subsequent use of that evidence against
    the witness in exchange for his or her full and frank testimony.

[Emphasis in original]

[38]

Moldaver
    J. also discussed this principle in his majority reasons in
R. v. Nedelcu
,
    2012 SCC 59, [2012] 3 S.C.R. 311, at paras. 3, 6, and 7:

[T]he Court in
Henry
outlined a unified approach to s.
    13, one based on the historical rationale underlying s. 13 - the
quid pro
    quo
.

[T]he 
quid
 that forms the critical first branch of the
    historical rationale, refers to incriminating evidence the witness has given
    at a prior proceeding in which the witness could not refuse to answer. The
    section does not refer to all manner of evidence the witness has given at the
    prior proceeding.  It refers to incriminating evidence the witness has given
    under compulsion.

The 
quo
 refers to the states side of the bargain.  In
    return for having compelled the witness to testify, to the extent the witness
    has provided incriminating evidence, the state undertakes that it will not
    use
that
evidence to incriminate the witness in any other proceeding,
    except in a prosecution for perjury or for the giving of contradictory
    evidence. [Emphasis in original.]

[39]

The
quid pro quo
is simple: the witness is offered protection in exchange
    for truthful incriminating testimony. This is not what happened here.  The
    testimony of the four appellants at the Pang preliminary inquiry was not
    self-incriminatory. Rather, it was an attempt at self-exculpation. When it
    convicted them of perjury, the jury found that Pollard, Maodus, and Correia 
    lied at the Pang preliminary inquiry. This finding, and any inference that
    Miched lied at the Pang preliminary inquiry in a manner that was not captured
    by the problematic wording of his perjury count on the indictment, was admissible
    evidence toward the question of whether these four appellants also attempted to
    obstruct justice.

[40]

Section
    13 reflects a
quid pro quo
where compelled testimony compels
    self-incrimination.  In these circumstances, the state will not use the
    self-incriminating, compelled testimony to prosecute the offence revealed. The
    accused here were not compelled to give the testimony that was subsequently
    used to incriminate them for attempting to obstruct justice. They were not
    compelled to lie. In fact, they were required to do the opposite. There is no
quid
    pro quo
here.

[41]

The
    appellants interpretation of s. 13 that would render false testimony
    inadmissible on a charge of attempting to obstruct justice based on that false
    testimony would undermine the very purpose of the s. 13 protection.  Simply
    put:  a witness does not have immunity for lying under oath.

[42]

I
    do not agree with the appellants submission that attempting to obstruct
    justice does not fall within the exceptions to s. 13.  The exceptions in s. 13
    are not explicitly limited to the
Criminal Code
offences of perjury and
    giving contradictory evidence. A prosecution for perjury in the context of s.
    13 refers to proceedings related to offences in the nature of giving a false
    statement under oath; it is not limited to any particular provision of the
Criminal
    Code
, R.S.C. 1985, c. C-46. The prosecution of a particularized charge of
    attempting to obstruct justice by committing perjury is such a proceeding. Not
    only is this interpretation supported by the use of the word proceedings, as
    opposed to offences, in s. 13, this interpretation is the most reasonable.
    Although the Court of Appeal for Saskatchewan in
Staranchuk
was not
    required to deal with this issue, it nonetheless condoned this more flexible
    interpretation when it commented, at p. 153, and even if it could be argued
    that this prosecution is not one, in its nature, for perjury or for the giving
    of contradictory evidence within the meaning of s. 13 (another questionable
    proposition). The drafters of the
Charter
could not have intended to
    immunize a person who lies under oath from criminal prosecution for that lie.

A conviction was inevitable

[43]

Even
    if the trial judge had instructed the jury to ignore the preliminary inquiry
    testimony with respect to the attempt to obstruct justice count, in my view,
    the result would have been the same.  The appellant Schertzer was not charged
    with perjury as he did not testify at the Pang preliminary inquiry. Yet he was
    convicted of attempting to obstruct justice. The jury must have convicted on
    the basis of his false notes.  All of the appellants made the same assertion in
    their memo book notes that they waited until after the search warrant arrived
    to enter Pangs apartment.  It was this assertion that the Crown focused its
    prosecution on.

[44]

The
    trial judge did not err in leaving the appellants courtroom testimony as a
    possible mode of committing the attempt to obstruct justice offence.  I would
    not give effect to this ground of appeal.

Issue No. 2: Did the trial judge err in instructing the jury
    that they could convict the accused of attempting to obstruct justice by other
    means not particularized in the indictment?

[45]

Count
    3 of the indictment read:

JOHN SCHERTZER, STEVEN CORREIA, NED MAODUS, JOSEPH MICHED and
    RAYMOND POLLARD stand charged that they  did wilfully attempt to obstruct,
    pervert or defeat the course of justice, by practicing deception, including by
    making a false or misleading account of events in their memo books, and/or by
    lying to the court

[46]

The
    jury instructions in relation to this count included the following:

If the Crown has not proven beyond a reasonable doubt that the
    defendant practiced deception by making false or misleading entries in the memo
    book or by lying to the court
or by other means
, your final verdict is
    not guilty. If the Crown has proven that a defendant practiced deception by
    making false or misleading entries in a memo book or by lying to the court
or
    by other means
beyond a reasonable doubt, you go to the next box [in the
    decision tree]. [Emphasis added.]

Appellants Position

[47]

The
    appellants argue that where the Crown has particularized the mode of commission
    of the offence in the wording of the indictment, the Crown must prove those
    particulars unless the particulars can be regarded as mere surplusage:
R.
    v. Sadeghi-Jebelli
, 2013 ONCA 747, [2013] O.J. No. 5728 (C.A.), at paras.
    23-24. The indictment particularized the attempt to obstruct justice charge as
    making false or misleading entries in their memo books, and/or by lying to the
    court in their testimony. The appellants defended themselves on this basis. The
    trial judge erroneously instructed the jury that the attempt to obstruct
    justice offence could be proven by other means, when this alternative was not
    particularized in count 3.

[48]

Having
    given this instruction, the trial judge erred further in failing to instruct
    the jury as to what other means could be relied upon and in failing to relate
    the evidence to this legal instruction.

Crowns Position

[49]

The
    indictment did not limit the scope of the attempt to obstruct justice charge.
    The use of the word including clarified that the charge was not limited to
    the particularized examples. The trial judge did not err by drafting jury
    instructions and a decision tree reflecting this language.

[50]

It
    was not necessary for the trial judge to specify what such other means could
    be because the Crowns position was clear. The Crowns opening address referred
    to the memo book notes and other records prepared for the Crown Brief in
    Pang. The documents upon which the Crown relied at the appellants trial were
    bound together and entered as exhibits. The Crowns closing address
    specifically referenced many falsified documents in addition to the memo book
    notes, including the Supplementary Record of Arrest and the ITO for Fens
    safety deposit box. Viewed in this context, the trial judges instructions were
    sufficient to ensure the jury understood what other means on which the Crown
    was relying.

Analysis of Issue No.
    2

[51]

The
    indictment, on its face, alleged in count 3 including by making false or
    misleading account of events in their memo books The plain meaning of the
    word including indicates that the listed items do not stand alone.  The
    Oxford Dictionary defines including as containing part of the whole being
    considered.

[52]

In
    addition, the indictment goes on to articulate means in addition to the memo
    book notes and the false testimony.  The jury would have understood that the
    issue was whether a single lie had been repeated by the appellants in various
    ways. The phrase in the indictment by practising deception is inclusive of
    the various ways the alleged lie was repeated.

[53]

I
    would not give effect to this ground of appeal.

Issue No. 3: Did the admission of the experiment evidence of
    Detective Watkins render the trial unfair?

[54]

As
    discussed, Detective Kerry Watkins gave evidence about two time trials he
    conducted to recreate the travel time from 53 Division to the door of Pangs
    apartment. The trials were both conducted on April 4th, 2012.  His testimony
    was that it took 27 minutes on the first trial and 20 minutes 31 seconds on the
    second.  The distance travelled was 12 kilometres, one-way.

Appellants Position

[55]

Watkinss
    experiment evidence was not properly admitted.

[56]

The
    experiment evidence was not logically relevant because it did not have a
    tendency as a matter of human experience and logic to make the existence or
    non-existence of a fact in issue more or less likely than it would be without
    that evidence:
R. v. Abbey
, 2009 ONCA 624, 97 O.R. (3d) 330, at para.
    82, leave to appeal refused, [2010] S.C.C.A. No. 125. It was therefore
    inadmissible.

[57]

The
    experiment evidence was not legally relevant because its slight probative value
    was outweighed by its prejudicial effect.  The experiment evidence lacked the
    necessary degree of similarity to the driving conditions in February 1998 to
    support any reasonable inference as to how long it would have taken Miched to
    drive from 53 Division to Pangs apartment. The experiment was conducted 14 years
    after the events it was intended to recreate. The population density,
    commercial development, and intersections along the route were very different.
    Also, Miched drove at a high speed and ran numerous yellow and red lights,
    whereas Watkins drove the speed limit and obeyed all signs and signals.  Where
    Watkins and Miched parked their cars at 53 Division, how they gained access to
    the apartment building, and the timing of the elevator ride also differed.
    Finally, Watkins was involved in the investigation and prosecution of the
    appellants. He was not an independent, objective party.

[58]

The
    probative value was so slight that its prejudicial effect warranted exclusion.
    The manner in which the evidence was presented gave it an unwarranted aura of
    accuracy, authenticity, and scientific validity. There was a real risk that the
    jury would give the evidence more weight than it deserved.

[59]

Even
    if the evidence was admissible, the trial judge erred by not expressly
    cautioning the jury about the dangers of relying on the experiment evidence. A
    strong cautionary instruction was necessary because of the significant risk the
    jury might misuse the evidence. This risk was heightened because the Crown used
    the evidence together with other speculative inferences and the evidence was
    left with the jury as potentially corroborative on the perjury offence.

Crowns Position

[60]

Watkinss
    experiment evidence was both logically and legally relevant.  It was one of
    several pieces of evidence capable of establishing the timing of the search of
    Pangs apartment. The evidence overall established that the appellants could
    only have entered Pangs apartment with the warrant, at or after 10:45 pm, if
    Miched had completed a two-way trip between 53 Division and Pangs apartment in
    22 minutes. Watkinss evidence established the distance between 53 Division and
    Pangs apartment, and approximated the driving time and total time to travel
    between the two locations.

Analysis on Issue No.
    3

[61]

Watkinss
    experiment evidence was relevant.  It established distances and benchmark times
    that, as a matter of everyday experience and common sense, cast doubt on
    Micheds version of events and made it more likely that the appellants entered
    Pangs apartment without a search warrant before 10:45 p.m.

[62]

There
    was no risk of reasoning prejudice.  The jury knew of Watkinss limited
    involvement in the investigation and his objectivity was not at issue. The
    experiment evidence did not have an aura of expertise, scientific or otherwise.
    Watkinss observations were not complicated and he expressly declined to opine
    on whether the 12 kilometre drive could have been done in about seven or eight
    minutes. Finally, the differences in driving conditions in 1998 and 2012 were
    made clear to the jury.  These were everyday matters suited perfectly to the
    exercise of common sense and logic by the jury.

[63]

One
    may also infer the lack of prejudice from the tactical decision by several very
    experienced defence counsel not to object to the admission of this evidence at
    trial.  Rather, the defence chose to argue that it was representative of the
    prosecutions shoddy police investigation.

[64]

The
    trial judge reviewed Watkinss experiment evidence and its flaws in detail with
    the jury. These flaws were also exposed by the defence and candidly
    acknowledged by the Crown during closing submissions. Accordingly, there was no
    real risk that the jury would misuse the evidence.

[65]

I
    would not give effect to this ground of appeal.

Issue No. 4: Did the trial judge err in failing to adequately
    instruct the jury about the corroboration requirement on the perjury offences?

[66]

Section
    133 of the
Criminal Code
requires that no person be convicted of perjury
    under s. 132 on the evidence of only one witness, unless that evidence is
    corroborated in a material particular by evidence that implicates the
    accused.

Appellants Position

[67]

The
    trial judge made two legal errors. First, the trial judge failed to adequately
    distinguish the corroboration requirement under s. 133 from the
    confirmatory requirement for unsavoury witnesses, per
R. v. Vetrovec
,
    [1982] 1 S.C.R. 811. The trial judge used the word confirmed in relation to
    s. 133 without clarifying that corroboration requires more than restoring
    faith in the fact that the witness was telling the truth. The trial judge
    also told the jury that documentary evidence or admissions could be
    corroborative under s. 133. However, no attempt was made to relate such
    evidence to the legal requirement for corroboration. Indeed, there was no such
    evidence that could have been corroborative under s. 133.

[68]

Second,
    it was wrong to leave Watkinss experiment evidence with the jury as potentially
    corroborative of Fens testimony that the search was warrantless.   Given the
    particularization of the perjury counts on the indictment, to amount to
    corroboration under s. 133, the purported corroborative evidence had to go to
    the falsity of the testimony that the appellants did not enter the premises
    ... prior to the arrival of a search warrant. Watkinss experiment evidence
    did not speak directly to this testimony impugned on the indictment. At its
    highest, Watkinss experiment evidence went to the truth or falsity of the
    claim that Miched drove the warrant to the apartment after it was issued or to
    the time the officers entered the residence with the warrant.

Crowns Position

[69]

The
    jury instructions clearly distinguished between the
Vetrovec
instruction
    and the corroboration requirement under s. 133. The
Vetrovec
instruction
    was identified in the jury charge as a special instruction that applied to the
    testimony of complainants unrelated to the Pang investigation.  The trial judge
    expressly stated that Fens testimony was not subject to a
Vetrovec
warning.
    The s. 133 requirement was confined to perjury and the only perjury charges
    related to the Pang investigation. The s. 133 requirement was applied directly
    to Fens evidence and the Crowns submission that Fens evidence was confirmed
    by the impossibility of Miched travelling as he said he did between 53 Division
    and Pangs apartment. The trial judge later clarified that the requirement
    could be satisfied by oral evidence, documentary evidence, or admissions. In
    doing so, the judge used the word confirm rather than corroborate. In the
    context, the word was not used as a term of art. On the whole, the trial
    judges instructions informed the jury that perjury must be proved by more than
    one source of evidence.

Analysis on Issue No.
    4

[70]

There
    was extensive evidence regarding the timing of the events surrounding the
    warrant. There was oral evidence, documentary evidence, and there were formal
    admissions regarding the telewarrant procedure undertaken  by Miched. 
    Similarly, there was evidence about the window of time available for the trip
    to Pangs apartment.  This evidence included Watkins experiment evidence.
    Based on the instructions as a whole, the jurors would have understood that
    they could consider this evidence to corroborate Fens testimony.

[71]

This
    evidence was relevant to Micheds assertion that having received the warrant
    at 10:32 p.m.-  he had sufficient time to i) deliver the Pang search warrant by
    10:45 p.m. and ii) return to 53 Division to sign and transmit a fax at 10:54
    p.m.

[72]

There
    is no dispute that the appellants evidence at trial was that Miched delivered
    the warrant, and then they entered Unit 1404 around 10:45 p.m.  If Miched did
    not deliver the warrant by 10:45 p.m., then based on the appellants evidence
    at trial, Pollard, Maodus, and Correia lied when they testified at Pangs
    preliminary inquiry that they did not enter Unit 1404 prior to the arrival of
    the search warrant. This was the prior testimony impugned on the indictment.  A
    lie about one was a lie about the other. It was therefore evidence from which
    the jury could infer perjury.

[73]

I
    would not give effect to this ground of appeal.

Issue No. 5: Did the Crowns closing address result in a
    miscarriage of justice as it was unfair and improperly invited the jury to
    engage in speculative reasoning?

[74]

In
    closing submissions to the jury, the trial Crown referred to Micheds evidence
    and invited the jury to find that he could not possibly have done all of the
    things necessary, including driving, in the 22 minute window established by the
    undisputed telewarrant evidence.

[75]

The
    Crown also made other suggestions, including that Pangs daughter would have
    been in bed asleep by 10:45 p.m., not on the sofa as the appellants had testified;
    that according to Zhongs testimony, and contrary to Correias testimony, Fen
    was frightened by the search; and that Pangs charges carried a maximum
    penalty of life in jail.

Appellants Position

[76]

Using
    Watkinss experiment evidence as a launch pad, the Crowns closing submissions
    offered speculative suggestions to the jury as to how long it would have taken
    Miched to do various things, in addition to driving, in the absence of an
    evidentiary foundation.  For instance, the Crown speculated that it would have
    taken one minute to photocopy the search warrant.  In this manner, the trial
    Crown improperly narrowed the driving time available to 14 minutes,
    necessitating average speeds of over 100 kph.

[77]

The
    Crown also made other improper and inflammatory statements to the jury,
    including:

·

There was no evidence that Fens daughter slept in a bedroom,
    instead of on the sofa, in the two-bedroom apartment shared with Pang;

·

There was no evidence that even a hurricane is not going to wake
    up a seven-year-old child;

·

Fen testified that she was not frightened or worried during the
    search;

·

It was irrelevant and inflammatory to state that Pangs charges
    carried a maximum sentence of life imprisonment;

·

Erroneous suggestions that defence counsel misstated the
    evidence, particularly in relation to the timing of Micheds delivery of the
    warrant;

·

Reliance on alleged fabrications in the ITOs authored by Miched
    and Correia, even though this was not a mode of attempting to obstruct justice
    particularized in the indictment;

·

Misstating evidence in relation to other counts in the indictment
    for which the appellants were acquitted, which undermined their credibility in
    relation to the counts at issue;

·

Using a tone and style that ridiculed the appellants and their
    defence; and

·

Invoking prejudicial rhetoric suggesting that the victims were
    the administration of justice and the larger community, that the jury should
    avoid the tendency to be reluctant to convict police officers, and that
    acquittal would undermine the work of honest police officers.

Crowns Position

[78]

The
    Crown asked the jury to find, using common sense and logic, that Miched could
    not realistically have completed the necessary tasks in 22 minutes. This submission
    fairly arises from the evidence and so did not invite speculation. The
    documentary evidence, the admissions, and the testimony of the justice of the
    peace, Watkins, and Miched established locations, distances, and times. Miched
    testified that he was driving as fast as he could on a major Toronto artery,
    running red lights as he went, in an unmarked rental car with neither lights
    nor sirens. From this testimony, common sense inferences could be drawn as to
    how fast Miched could have been driving. It is a matter of common sense and
    experience that Micheds non-driving tasks would have consumed time on the
    order of minutes. Miched was cross-examined on this proposition.  His refusal
    to make reasonable concessions on the issue did not immunize his evidence from
    the application of the jurys common sense.

[79]

The
    Crowns theory was that Micheds testimony made no sense and was fabricated. It
    reasonably suggested the evidence was nonsense, entirely incredible, and a
    big lie. The Crown, like any other advocate, is entitled to advance his or her
    position forcefully and effectively:
R. v. Daly
(1992), 57 O.A.C. 70
    (C.A.), at para. 32.

[80]

It
    was not improper for the Crown to address the seriousness of the charges Pang
    faced. This was relevant to the Crowns submission that the appellants lied to
    protect an important drug investigation.

[81]

Nor
    was it improper for the Crown to caution the jury against moral prejudice
    against the complainants, who were drug dealers, and in favour of the
    appellants, who were police officers.  This was not prejudicial.  The Crown did
    not ask the jury to send a message about police corruption.  It merely asked
    the jury to disregard any extraneous sympathies or prejudices.  The appellants
    claim that the jury was inflamed is belied by the fact that the jury acquitted
    on the majority of counts.

Analysis on Issue No.
    5

[82]

The
    trial judge cautioned the jury not to speculate, and instructed them to come
    to common sense conclusions based on the evidence.  She specifically
    instructed that the trial Crowns own opinions of the time required by Miched
    to complete the individual steps of the non-driving tasks were not evidence.

[83]

The
    trial judge also corrected misstatements made by the Crown.  She told the jury
    there was no evidence that Fens daughter slept in a bedroom. The trial judge
    also told the jury that Correias testimony regarding Fens calm demeanour
    during the search was supported by Fens own testimony. Finally, the trial
    judge corrected the Crowns allegations, where they were mistaken, that the
    defence misstated the evidence.

[84]

I
    agree with the Crown that the rhetoric in the Crowns closing submissions at
    trial was not inflammatory or otherwise improper.

[85]

The
    trial judges corrective actions  which are entitled to deference  reflect no
    error.  I would not give effect to this ground of appeal.

Issue No. 6: Was the trial judge required to provide the jury
    with a specific instruction on the law of exigency in relation to searches and
    seizures?

[86]

In
    closing submissions, the Crown suggested to the jury that the appellants had
    fabricated the time of the search of Pangs apartment because otherwise the
    heroin seized in the apartment would likely be inadmissible against Pang at a
    subsequent trial.  The Crown also suggested that it would be unlikely that the
    appellants could secure a search warrant for Fens safety-deposit box if the
    keys to this box had been seized during an illegal search.

Appellants Position

[87]

The
    Crowns proposed motive required the trial judge to temper this submission with
    an instruction about exigency and s. 487.11 of the
Criminal Code
, under
    which the search could have been legal without a warrant. The trial judge
    should have also instructed the jury that absent exigent circumstances,
    evidence obtained without a search warrant may have been admissible under s.
    24(2) of the
Charter
.

Crowns Position

[88]

The
    trial judge was not required to provide such an instruction and the appellants
    did not request one at trial. Exigency did not play a significant role in the
    case.  The Crowns theory was that the appellants obtained an
ex post facto

warrant to conceal their unconstitutional conduct. The appellants argued
    that there was no warrantless search because they had a warrant, not because
    the search was exigent. Nevertheless, Schertzers assertion that warrantless
    entry might have been justified by exigency was included in the trial judges
    review of the evidence.  A further instruction would actually have exposed that
    Schertzers understanding of exigency was dubious, and therefore would not have
    assisted the defence.

Analysis of Issue No.
    6

[89]

The
    very experienced defence counsel did not request that the trial judge give an
    instruction on exigency. This may be explained by the fact that such an
    instruction had the real potential to weaken the defence case.

[90]

Schertzer
    testified that a warrantless search could have been justified by exigency. In
    order to establish exigency, Schertzer needed reasonable grounds to believe
    that:  (i) evidence relating to the commission of an indictable offence is
    present; and (ii) entry is necessary to prevent the imminent loss or
    destruction of the evidence: Criminal Code s. 529.3.  Schertzer had testified
    that if the occupants of the Pang apartment had seen the arrest, by the time
    they entered the apartment the drugs would have been gone.   An instruction on
    exigency would have exposed this error. In these circumstances, in light of
    defence counsels position, it would have been inappropriate for the trial
    judge to add an instruction on exigency her own initiative.

[91]

I
    would not give effect to this ground of appeal.

Issue No. 7: Did the trial judge err in the manner in which
    she instructed the jury concerning the lost evidence?

[92]

The
    evidence at trial was that some of the relevant memo books, steno pad notes,
    search warrant notes, and surveillance notes were no longer in the CFC files.
    Under cross-examination by the Crown, the appellants denied that they destroyed
    records, including notes purportedly taken by Correia during the search of
    Pangs apartment.  There was no direct evidence that the appellants had
    destroyed any records. The defence argued forcefully in closing submissions to
    the jury that the lost evidence created gaps in the Crowns case and raised
    questions about the Crowns integrity.  This created a fundamental failure to
    meet its burden.  The Crown suggested in response that the appellants
    destroyed the records to cover their tracks.   In pre-charge discussions, the
    trial judge suggested a Lost, Destroyed or Unpreserved Evidence instruction
    be given.

Appellants Position

[93]

The
    trial judge instructed the jury that the Crown submitted that the materials
    are missing because they would tend to support the Crowns allegations that the
    defendants are guilty of criminal offences. This language turned what should
    have been a favourable instruction for the defence into an after the fact
    conduct instruction suggesting that lost evidence could be evidence of the appellants
    guilt.  There was no evidentiary foundation for such an inference.

Crowns Position

[94]

The
    missing material was the cornerstone of the defences attack on the quality of
    the investigation into the appellants police work. In context, the impugned
    phrase in the jury instruction on Lost, Destroyed or Unpreserved Evidence was
    actually favourable for the appellants. The phrase was embedded in an
    instruction that highlighted the flaws in the Crowns evidence and tied those
    flaws to the Crowns ability to prove its case.

Analysis of Issue No.
    7

[95]

The
    trial judge reviewed the relevant evidence with the jury, instructed the jury
    on how lost evidence could raise a reasonable doubt about the appellants
    guilt, and related this to the Crowns burden of proof.   The trial judge was
    instructing the jury on the positions of the defence and the Crown on what
    inferences could be reasonably drawn from the fact that there was lost
    evidence with respect to the appellants police work.

[96]

The
    lost evidence instruction was not specific to the Pang investigation.  The
    appellants were acquitted on all counts, except those related to the Pang
    investigation. Therefore, the only prejudice stemming from the lost evidence
    instruction that is relevant to this appeal is that related to the counts on
    the Pang investigation.  The appellants have highlighted only one piece of
    lost evidence from that investigation, namely the notes purportedly made by
    Correia during the execution of the search warrant.

[97]

There
    was no prejudice with respect to the Pang counts.  The defence asked the jury
    to infer that the lost evidence meant that the Crown was hiding exculpatory
    evidence.  The Crown asked the jury to consider whether the lost evidence was
    equally consistent with efforts by the appellants to cover their tracks.  As I
    read the charge, the jury was not instructed that it could draw a positive
    inference of guilt from the fact that some of the records of the appellants
    police work were missing.  Rather, the jury was presented with the Crowns
    explanation for why it did not disclose all of the appellants purported
    records.

[98]

In
    any event, even if the trial judge erred in law by not instructing the jury
    that it should draw no positive inference in favour of the Crown from the fact
    of the lost evidence, there was no substantial wrong or miscarriage of
    justice.  The Crown assembled a strong case against the appellants with respect
    to misdeeds during the Pang investigation. There was evidence of a warrantless
    search. There was extensive circumstantial evidence related to the telewarrant
    process that the appellants could not have had a search warrant when they
    entered Pangs apartment.  In short, the Crowns case did not turn on the jury
    drawing a positive inference with respect to any purportedly lost records. 
    Such a pallid inference would add little to the potent evidentiary record
    asserted by the Crown.

[99]

I
    would not give effect to this ground of appeal.

Issue No. 8: Were the guilty verdicts ones that a reasonable
    jury, properly instructed and acting reasonably and judicially could have
    returned?

[100]

The appellants
    present a series of facts and propositions to support the overall position that
    the verdicts were unreasonable.  Some of these allegedly exculpatory facts and
    propositions have already been discussed in these reasons.  The appellants
    additionally submit:

·

There was no motive for the appellants to enter Pangs apartment
    prior to the arrival of the warrant;

·

If the appellants were determined to enter without prior judicial
    authorization, they could have maintained that exigent circumstances existed,
    which would have been difficult to review;

·

The appellants would have known that the telewarrant process
    created an objective, independent, and permanent record of the timing of the warrant;

·

If the appellants were at the time of their search unsure whether
    they would successfully obtain a warrant
ex post facto
, they would not
    have conducted such a disruptive search;

·

Fens evidence confirmed the search warrant was present at the
    time of the search. It was undisputed that Correia left behind a bag in Pangs
    apartment and retrieved the forgotten bag later that evening. Fen testified
    (and Zhong confirmed) that, before leaving for the second time, Correia took
    the warrant from the forgotten bag and handed it to Zhong;

·

If the search started at 7:00 p.m. and lasted two hours, and the
    warrant drafting process started after the search was completed as suggested by
    the Crown, it would not have left sufficient time to draft the ITOs before they
    were sent to the justice of the peace;

·

The evidence in relation to the searches conducted by the
    appellants in other investigations suggested a preference not to enter until
    the warrant arrived.

[101]

The appellants
    submit further that, with respect to Correia, the jury could not reasonably
    find guilt of perjury because Correia was never directly asked at the Pang
    preliminary hearing whether he entered Pangs apartment prior to the arrival of
    the search warrant.

Analysis of Issue No.
    8

[102]

It is not
    necessary to review the Crowns position on this ground of appeal since the
    appellants submissions do not come close to meeting the high bar necessary to
    support a claim that the jury verdict is unreasonable. The test for an
    appellant court to determine whether the verdict of a jury is unreasonable or
    cannot be supported by the evidence has been unequivocally expressed by the
    Supreme Court of Canada.  In
R. v. Yebes
[1987] S.C.J. No. 51 at para 25
    said this:

The Court must determine on the whole of the evidence whether
    the verdict is one that a properly instructed jury, acting judicially, could
    reasonably have rendered.

[103]

Here, the
    evidence supported the convictions. This ground of appeal represents an attempt
    to re-try the entire case including credibility issues.

[104]

With respect to
    Correia, although he was not directly asked whether he entered the apartment
    prior to the arrival of the search warrant, he testified that he stayed out in
    the hallway with the other officers until the search warrant arrived.
    Logically and semantically this is the same as the lie particularized in count
    6 on the indictment, that he did not enter the premises located at  ... prior
    to the arrival of a search warrant.

[105]

I would not give
    effect to this ground of appeal.

Issue No. 9: Did the trial judge err in dismissing the
    accuseds abuse of process application based on the TPS memo?

[106]

The appellants
    abuse of process application at trial was based on the TPS memo, dated November
    4, 2010, to employees identified as possible witnesses in the appellants
    trial. The memo advises the employees that it is their choice whether or not to
    speak with defence counsel.  It also orders the employees to advise a TPS
    official if they intend to submit to an interview or otherwise provide
    information to defence counsel so that arrangements could be made to have an
    officer from the Professional Standards Special Task Force present.

[107]

The trial judge
    dismissed the application.

[108]

The trial judge
    found that there was no evidence that the ability of the appellants to prepare
    for trial was impaired by the memo.   The charges were laid in 2002. The matter
    had been on the verge of trial in 2007.  It was highly likely that any defence
    interviews with willing TPS employees would have already happened by November
    4, 2010. There was no evidence that as a result of this memo, any TPS employee
    refused speak to defence counsel.  Specifically, the trial judge stated, in her
    reasons:

I am not persuaded that if a TPS employee wished to participate
    in an interview with defence counsel, that this memo made such a course less
    likely, given that the oath of office prohibits such conduct unless authorized.

[109]

The trial judge
    further concluded that the defences complaint was entirely hypothetical. It
    amounted, in her view, to an assertion that the unfettered private access by
    defence counsel to members and employees of the TPS is a general principle of
    fundamental justice necessarily inherent in a fair trial.   She rejected this
    submission.  Litigation privilege does not prevent a prospective witness from
    telling anyone else what they disclosed in a pre-trial interview.  The TPS has
    the right to direct the work-related activities of its employees, including
    requiring that an interview be recorded in some fashion.  The effect of the
    memo was to authorize officers to participate in an interview, notwithstanding
    their oath of secrecy with respect to information gathered in the course of
    their employment.

[110]

The trial judge
    concluded that the memo would not prevent a fair trial or undermine the
    integrity of the justice system. She also concluded that the public interest in
    a trial on the merits was substantial.

Appellants Position

[111]

The doctrine of
    abuse of process is broad and flexible in application. Even where the
    particular fair trial interests of an accused are not in jeopardy, the residual
    category, as subsumed by s. 7 of the
Charter
, addresses the panoply of
    diverse and sometimes unforeseeable circumstances where a prosecution is so
    unfair and vexatious that it contravenes fundamental notions of justice and
    thus undermines the integrity of the judicial process:
R. v. OConnor
,
    [1995] 4 S.C.R. 411, at para. 73.

[112]

The memo
    contravened the fundamental principle that there is no property in a witness.
    The Crown cannot dictate the manner in which a witness will be interviewed, the
    circumstances of the interview, or what type of record will be maintained of
    any such interview.

[113]

The memo also
    contravened the fundamental principles that the accused has a right not to be
    forced to assist in his prosecution and to prepare for trial as he or she sees
    fit without disclosing his or her strategy to the Crown. The memo interfered
    with the defences litigation privilege. The accused is entitled to interview
    any willing witness without fear of being compelled to produce notes of any
    such meeting. The Crown is not entitled to know how the defence will meet its
    case until it unfolds at trial.

[114]

The memo had a
    chilling effect on the defences ability to meet with potential witnesses who
    might otherwise have been inclined to meet with the defence by intimidating
    potential witnesses. This chilling effect interfered with the defences ability
    to make full answer and defence. It also explains why it is difficult to
    establish a direct correlation between the memo and the fairness of the
    proceeding on a witness-by-witness basis. Nevertheless, there was unfairness,
    which was compounded by the Crown urging the jury to draw an adverse inference
    from the defences failure to call witnesses.

[115]

This irreparably
    compromised the integrity of the proceedings and amounted to an abuse of
    process.

Crowns Position

[116]

The trial judge
    correctly dismissed the appellants request for a stay of proceedings for abuse
    of process. Whether under the main category or the residual category, the test
    to determine if a stay is warranted is the same:
R. v. Babos
, 2014 SCC
    16, [2014] 1 S.C.R. 309, at paras. 32-33.  There are three requirements to
    grant a stay of proceedings:

·

(1)     there must be prejudice to the accuseds right to a fair
    trial or the integrity of the justice system that will be manifested,
    perpetuated or aggravated through the conduct of the trial, or by its outcome;

·

(2)     there must be no alternative remedy capable of redressing
    the prejudice; and

·

(3)     when uncertainty remains over whether a stay is
    warranted, the court is to balance the interests in favour of granting a stay,
    such as denouncing misconduct and preserving the integrity of the justice
    system, against the interest that society has in having a final decision on the
    merits.

[117]

These factors
    have not been satisfied in this case.

Analysis of Issue No.
    9

[118]

The trial judge
    did not err in dismissing the appellants stay application. There was similarly
    no error in denying the alternative remedy sought, an adjournment and
    revocation of the memo. Although the doctrine of abuse of process may be broad
    and flexible in application, it is to be used sparingly  only in the clearest
    of cases  to justify a judicial stay of proceedings:
Babos
, at para.
    31.

[119]

The threshold
    for staying proceedings for an abuse of process is a high one. In
Babos
,
    writing for the majority of the Supreme Court, Moldaver J. reiterated these
    axioms, at para. 30:

A stay of proceedings is the most drastic remedy a criminal
    court can order....  It permanently halts the prosecution of an accused.  In
    doing so, the truth-seeking function of the trial is frustrated and the public
    is deprived of the opportunity to see justice done on the merits.  In many
    cases, alleged victims of crime are deprived of their day in court.

[120]

Whether under
    the main category or the residual category, the test to determine if a stay is
    warranted for an abuse of process is the same:
Babos
, at paras. 31-33
    set out above.

[121]

The appellants
    did not meet this test.  Even if I were to assume that there might have been
    prejudice caused by the memo, and that there might be no alternative remedy to
    a stay, the appellants cannot satisfy the third step of the test set out
    above.

[122]

Society had an
    interest in seeing justice done by having the guilt or innocence of the
    appellants determined through a full trial on the merits.  The interests that
    would be served by granting a stay must be balanced against the interests
    society has in having the final decision determined on the merits. The police
    misconduct alleged was serious and goes to the core of the justice system.
    Accordingly, societys interest in a decision on the merits was substantial.  A
    stay was not warranted

[123]

The interests
    that would have been served by granting the stay (or, alternatively, an
    adjournment coupled with revocation of the memo) were minimal. As pointed out
    by the trial judge, the alleged prejudice to the appellants right to make full
    answer and defence was entirely hypothetical.  The memo was issued many years
    after the charges were laid and so any potential witnesses would already have
    been approached by the defence. There was also no evidence that the appellants
    position would have been improved by rescinding the memo and granting an adjournment.
    A public decision on the merits was necessary to maintain the integrity of the
    justice system.

[124]

The litigation
    privilege asserted by the appellants is hypothetical only.  The trial judge
    found that there was no evidence that any employee was reluctant to speak to
    the defence as a result of the memo.  She was not persuaded that if a TPS
    employee wished to participate in an interview with the defence counsel, that
    this memo made such a course less likely.

[125]

The trial judge
    did not misdirect herself in law, commit a reviewable error of fact, or render
    a decision so clearly wrong that it amounts to an injustice:
Babos
, at
    para 48.  I would not give effect to this ground of appeal.

Disposition of the Conviction Appeals

[126]

I would dismiss
    the appeals against the convictions.

The Sentence Cross-appeals

[127]

The Crown seeks
    leave to appeal the sentences imposed on the respondents (to this
    cross-appeal).  If leave is granted, the Crown seeks to set aside the 45-day
    conditional sentences imposed on each of the respondents and substitute 3-year
    custodial sentences.

[128]

The sentencing
    judge agreed with the Crown that offences against the administration of justice
    are more serious when committed by a police officer because of their duty to
    uphold the law.   She placed substantial weight on the objectives of deterrence
    and denunciation and concluded that a 45-day conditional sentence was
    sufficient to satisfy those objectives. She considered the significant
    deterrent effect of the lengthy and invasive investigation and the prolonged
    nature of the proceedings.  She concluded that No other police officer would
    willingly trade places with any of these accused.  She also accepted that
    incarceration would be exceptionally difficult for each of these accused
    because their work has resulted in the incarceration of hundreds of drug
    dealers.

[129]

The sentencing
    judge considered mitigating factors relevant to the circumstances of the
    offence, such as the fact that the appellants had little to gain personally
    from the warrantless search.  She also considered mitigating personal
    circumstances of each of the respondents. She noted the mitigating effect of
    delay, as is conceded by the Crown.

[130]

In its
    cross-appeal, the Crown disputes that the reasonable manner in which the search
    - once initiated - was conducted was a mitigating feature. In addition, the
    Crown submits that the apparent lack of motive and the fact that the
    respondents had requisite grounds to obtain a search warrant were aggravating,
    not mitigating, features. But, the Crowns principal argument is not with the
    factors considered by the sentencing judge, but rather with their weighing. 
    The issue is this:  does a 45-day conditional sentence reflect the seriousness
    of the offence when police officers attempt to obstruct justice and perjure
    themselves?

[131]

While deference
    is owed to the sentencing judge, the objective of denunciation requires that
    this Court intervene as the sentences were demonstrably unfit.

[132]

Public
    confidence in the honesty of the police is fundamental to the integrity of the
    criminal justice system.  As Moldaver J.A. wrote in
Schaeffer v. Wood
,
    2013 SCC 71 at para. 52, citing Sir Robert Peel:

the police are the public andthe public are the police  The
    wisdom of this statement lies in its recognition that public trust in the
    police is, and always must be, of paramount concern.

[133]

Police officers
    are sworn to uphold the law. In
R. v. Feeney
, 2008 ONCA 756, 238 C.C.C.
    (3d) 49, at para. 8, this court endorsed the following passage from
R. v.
    Cusack
(1978), 41 C.C.C. (2d) 289 (N.S. S.C.(A.D.))::

[T]he paramount consideration in this case is the protection of
    the public from offences of this sort being committed by persons who are given
    special authority by our law to deal with individual members of society, and to
    deter such persons from acting in breach of their trust....

The commission of offences by police officers has been
    considered on numerous occasions by the Courts, and the unanimous finding has
    been that their sentence should be more severe than that of an ordinary person
    who commits the same crime, because of the position of public trust which they
    held at the time of the offence and their knowledge of the consequences of its
    perpetration..

[134]

The convictions
    relate to the administration of justice.  Civilian offenders who interfere with
    the proper investigation and prosecution of criminal offences have received
    significant sentences.  As the British Columbia Court of Appeal noted in
R.
    v. Hall
, 2001 BCCA 74, [2001] B.C.J. No. 560, at para. 12:

Obstruction of justice or attempting to obstruct justice
    strikes at our system of a lawful society. The message must be clear that this
    type of interference with the community system for handling criminal offences
    will not be tolerated.  It is for this reason that the courts must act firmly
    to express societys disapproval and denunciation of such conduct.

[135]

Perjury
    convictions must attract similar deterrent sentences.  Perjury strikes at the
    very root of our system of justice.  (
R. v. Glauser
(1981), 16 C.C.C.
    (2d) (Ont. C.A.)   Time and time again courts have referred to the fact that
    perjury undermines the very heart of the administration of justice. (see:
R.
    v. Turner
(1981), 65 C.C.C. (3d) 487;
R. v. C.D.
[2000] O.J. No.
    1668 (C.A.)  As stated in
Glauser:

The administration of
    justice is based upon the truthful testimony of those persons who are called to
    give evidence under oath.  The freedom, or on the other hand, the incarceration
    of accused persons in serious criminal offences depends totally upon the
    truthfulness of those witnesses. (para. 288)

[136]

When the
    perpetrators of the crime are police officers sworn to uphold the law, the
    objective of denunciation has heightened significance. Police officers owe a
    special duty to be faithful to the justice system.

[137]

The sentencing
    judge addressed the objective of general deterrence.  However, the 45-day
    conditional sentences do not reflect societys condemnation of the conduct. 
    Nor do they address the need to denounce the crimes and are thus
    demonstratively unfit.

[138]

I would grant
    leave and allow the Crowns cross-appeal against the sentences.  With respect
    to each respondent, I would set aside the 45-day conditional sentence and
    substitute a sentence of 3 years.  However, in the light of all of the
    circumstances, particularly the passage of time since the sentences were first
    imposed and the fact that the sentences imposed have been served, I would order
    that the operation of the sentences be stayed.

Summary

[139]

I would dismiss
    the conviction appeals and allow the cross-appeals of sentence on the terms set
    out above.

Released: D.W.  April 20, 2015

M.L. Benotto J.A.

I agree David Watt J.A.

I agree M. Tulloch J.A.


