



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.


