



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Al-Enzi, 2021 ONCA 81

DATE: 20210205

DOCKET: C63998

Tulloch, Roberts and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nawaf Al-Enzi

Appellant

Michael W. Lacy and Bryan Badali, for
    the appellant

Jamie Klukach and Katie Doherty, for
    the respondent

Heard: June 18, 2020 by video conference

On appeal from the conviction entered on
    December 18, 2016 by Regional Senior Justice Bonnie R. Warkentin of the
    Superior Court of Justice, sitting with a jury.

Tulloch J.A.:

OVERVIEW

[1]

On August 19, 2006, the
    body of Mohamed Zalal (Mr. Zalal or the deceased) was found in a field by Highway
    417, outside of Ottawa. He had been killed by a single gunshot wound to the
    back of his head.

[2]

In June 2008, after a
    lengthy police investigation, the appellant, Nawaf Al-Enzi, and two others,
    Mahmoud Kayem, and Ali Abdul-Hussein, were charged with first degree murder in
    relation to Mr. Zalals death.

[3]

On September 26, 2010, the
    appellant was convicted of first degree murder by a jury. On appeal, this court
    set aside the conviction, finding that the appellant had not been afforded a
    fair trial. A new trial was ordered:
R. v. Al-Enzi
,

2014 ONCA
    569, 121 O.R. (3d) 583, leave to appeal refused, [2014] S.C.C.A. No. 405.

[4]

On December 18, 2016,
    after a second trial, the appellant was convicted of first degree murder in the
    death of Mr. Zalal. He now appeals his conviction.

[5]

For the following
    reasons, I would dismiss the appeal.

BACKGROUND

[6]

The following summary of
    evidence provides context for understanding the issues on appeal. Additional
    facts will be added, where required, to address each ground of appeal.

I.

Discovery of the body and forensic evidence

[7]

On August 19, 2006, the
    body of Mr. Zalal was discovered around noon, in a field outside of Ottawa.

[8]

It was determined that
    Mr. Zalal had died of a single, perforating gunshot wound to the back of his
    head. The firearms evidence suggested that the gun had been fired at close
    range. No other injuries were present.

[9]

The police found two cigarette
    butts near the body. DNA testing later revealed that the deceaseds DNA profile
    matched the DNA found on one of the cigarettes, and Mr. Kayems profile matched
    the DNA found on the other.

II.

Police investigation

[10]

During the two years
    following the discovery of the body, the police conducted an extensive
    investigation into the circumstances of Mr. Zalals death. The investigation
    revealed the following:

·

the appellant, Mr. Kayem, and Mr. Abdul-Hussein
    were known associates of Mr. Zalal;

·

phone records revealed that, on August 18, 2006,
    there were numerous calls between the cell phones being used by the appellant,
    Mr. Kayem, and Mr. Zalal;

·

cell tower records revealed that at
    approximately 11:10 p.m. on August 18, 2006, Mr. Kayems cell phone accessed the
    cell tower nearest to where the deceaseds body was found. The appellants cell
    phone accessed that same tower at approximately 12:01 a.m. on August 19, 2006;

·

while he denied any involvement, Mr. Kayems DNA
    was found on a cigarette butt discovered near the body;

·

the appellant claimed that he had been with Mr.
    Zalal on the day prior to his body being found, but that he had spent that
    evening with his then-wife, Zeinab Abdul-Hussein, at an exhibition and at a bar
    in Québec. However, security footage from the only entrance and exit at the bar
    did not show the appellant or his wife in attendance. Cell tower records also
    showed that the appellants cellphone did not access any of the cell towers near
    the bar;

·

intercepted communications revealed a number of potentially
    incriminating conversations, including:

i.

a November 2007 conversation between the
    appellant and Mr. Abdul-Hussein, in which the appellant reassured Mr.
    Abdul-Hussein after an interaction with police, telling him that [t]hey gotta
    prove it;

ii.

a November 2007 conversation between the
    appellant and his brother, in which the appellant repeatedly asked his brother
    to confirm that he took apart and threw away the nine;

iii.

a conversation between the appellant and a
    friend, in which the appellant appears to acknowledge a dispute between himself
    and Mr. Zalal over a firearm that he had borrowed from Mr. Zalal;

iv.

multiple conversations between the appellant and
    Mr. Kayem, in which they repeatedly mention that no one has said anything and
    that the police dont have anything; and

v.

multiple conversations between the appellant and
    Ms. Abdul-Hussein, in which they repeatedly made mention of a person they
    referred to as Auntie. Based on the content and context of the calls, it was
    possible that Auntie referred to Mr. Kayem, and that the conversations were
    about how to keep Mr. Kayem, who had travelled to Dubai after the murder, from
    returning to Canada.

·

a witness, Ramin Khaleyi, told police that the
    appellant had confessed to murdering Mr. Zalal, and that Mr. Kayem and Mr.
    Abdul-Hussein had also been involved.

[11]

In June 2008, on the
    basis of this evidence, the police arrested the appellant, Mr. Kayem, and Mr.
    Abdul-Hussein in connection with the death of Mr. Zalal. All three were charged
    with first degree murder. The appellant and Mr. Abdul-Hussein were charged
    jointly, and Mr. Kayem was charged separately.

III.

Events leading up to the appellants first trial

[12]

After his arrest, Mr.
    Kayem was interviewed by police and confronted with the DNA evidence linking
    him to the scene. Though he had previously maintained that he had not been
    involved in Mr. Zalals death, he provided a statement in which he admitted
    that he had been present at the murder. He claimed that the appellant was
    responsible for Mr. Zalals killing. Mr. Kayem was subsequently committed to
    trial after a preliminary hearing.

[13]

In October 2009, after
    a joint-preliminary hearing for the appellant and Mr. Abdul-Hussein, Mr.
    Abdul-Hussein pleaded guilty to being an accessory after the fact and received
    a sentence of time served. He subsequently provided a statement to police in
    which he identified the appellant as the killer. After obtaining the statement,
    the Crown decided to proceed jointly against the appellant and Mr. Kayem.

IV.

First trial and appeal

[14]

Midway through the
    appellants first trial, the appellants lawyer withdrew from the case pursuant
    to the Law Society of Ontarios Rules of Professional Conduct. He claimed that
    he was required to withdraw as a matter of ethics, but that the appellant was
    blameless and not to be faulted for the withdrawal.

[15]

As the appellant was
    now unrepresented, the trial judge adjourned proceedings for nearly four months
    to allow the appellant to find another lawyer. Despite engaging in a thorough
    search, however, the appellant was unable to find a defence lawyer prepared to
    step into the middle of a first degree murder trial.

[16]

As a result of his
    inability to find representation, the appellant brought an application for
    severance on the grounds that he was not capable of representing himself and
    would suffer prejudice. The trial judge dismissed the application, instead
    appointing
amicus
in an expanded role to assist the appellant.

[17]

At the conclusion of
    the trial, a jury convicted the appellant of first degree murder. The
    appellants co-accused, Mr. Kayem, was acquitted.

[18]

The appellants
    conviction was subsequently overturned by this court. At para. 96 of his
    reasons, Laskin J.A. found that the trial judge had:

exercised his discretion unreasonably by
    denying Al-Enzi a severance or a mistrial so that he could retain a lawyer to
    represent him at a new trial. The appointment of
amicus
, even with an
    expanded mandate, was not an adequate substitute for counsel for Al-Enzi. The
    trial judges denial of a severance or a mistrial deprived Al-Enzi of a fair
    trial, both in appearance and in reality. It produced a miscarriage of justice.

[19]

The appeal was thus
    allowed, the conviction set aside, and a new trial ordered.

V.

Second trial

[20]

At his second trial, the
    appellant was tried by a jury and convicted of first degree murder.

ISSUES ON APPEAL

[21]

The appellant challenges
    his conviction on six grounds:


1)

the trial judge erred in her instruction to the
      jury on the issue of post-offence conduct;

2)

the trial judge erred in concluding that the
      appellants statements to police were voluntary and admissible;

3)

the trial judge erred in admitting Mr. Khaleyis
      May 4, 2007 statement to police into evidence for the truth of its contents;

4)

the trial judge erred in leaving constructive
      first degree murder by way of forcible confinement with the jury, or in her instruction
      to the jury on this route of liability;

5)

the trial judge erred in finding that the communications
      between the appellant and his wife made while they were still married were not
      protected by spousal privilege; and

6)

the trial judge erred in dismissing the appellants challenge to the
      lawfulness of the intercepts.


[22]

In the event that the
    appeal is allowed, the Crown raises an additional issue  whether the trial
    judge erred by excluding the prior testimony and sworn police statement of Mr.
    Abdul-Hussein. However, given that I would dismiss the appeal, there is no need
    to address this issue.

ANALYSIS

I.

Did the trial judge err in her instruction to
    the jury on the issue of post-offence conduct?

(1)

Background

[23]

On August 22, 2006,
    three days after the discovery of Mr. Zalals body, Detective Krista Hill was
    assigned to interview the appellant as part of the investigation into Mr.
    Zalals death.

[24]

That same day, the
    appellant contacted Detective Hill in order to retrieve his passport, which had
    been seized following his arrest in 2005 for an unrelated matter. The appellant
    left two voice mail messages. Detective Hill returned the appellants calls,
    using the passport matter as an opportunity to invite the appellant to discuss
    the death of Mr. Zalal. While at the time, the appellant was not a suspect, he
    was a known associate of Mr. Zalal.  Detective Hill took contemporaneous notes
    of the call. She testified that, while her notes were not a verbatim summary of
    the discussion, they covered everything that had been discussed.

[25]

Detective Hill also testified
    that, although the appellant stated that he had no information to provide about
    Mr. Zalals death, he provided the following information regarding his contact
    with Mr. Zalal on August 18, 2006:

·

at about 2:00 p.m., he had picked up Mr. Zalal
    and two others to buy t-shirts;

·

he dropped off Mr. Zalal and the others at one
    of their homes;

·

at around 6:00 p.m., he spoke to one of the
    other men, at which time Mr. Zalal was still with him; and

·

he was planning to meet Mr. Zalal and the others
    at a strip club in Gatineau, but did not end up meeting him there. Instead, he
    went with his wife to an exhibition and later to a bar in Québec.

[26]

Contrary to the
    appellants narrative, however, security footage from the only entrance and exit
    at the bar did not show the appellant or his wife in attendance. Cell tower
    records also showed that the appellants cellphone did not use any of the cell
    towers near the bar.

[27]

Prior to trial, the
    Crown brought an application to have the appellants statement to Detective
    Hill admitted as voluntary:
R. v. Al-Enzi
, 2016 ONSC 3574
    (Voluntariness Reasons). The Crown sought to use the statement as evidence
    that the appellant had deliberately lied to conceal his guilt. The appellant
    challenged the application, arguing, among other things, that the statement
    should not be admitted on the basis that it had limited probative value.

[28]

According to the
    appellant, the statement served no purpose other than to memorialize the
    alleged falsehood that he had been at a bar in Québec on the night of August
    18. Even if the statement was proven false, its falsity could not be used to
    further the Crowns case, as a falsehood cannot be used to support an inference
    that an accused deliberately lied to conceal their guilt, absent independent
    evidence of fabrication. In support of this proposition, the appellant referred
    to this courts decision in
R. v. OConnor
(2002), 170 C.C.C. (3d) 365
    (Ont. C.A.).

[29]

The appellant argued
    that, while such independent evidence would potentially be available in the
    form of the anticipated evidence of Mr. Kayem and Mr. Abdul-Hussein (who both
    claimed that the appellant had murdered Mr. Zalal), acceptance of that evidence
    would effectively render the appellants concoction inconsequential (as the jury
    would already have accepted that he murdered Mr. Zalal). The evidence thus
    served no purpose.

[30]

The trial judge
    rejected this argument, finding that the statement was admissible, as the jury
    was entitled to consider the cumulative effect of all the evidence.

[31]

It was subsequently
    determined, however, that the hearsay evidence of both Mr. Kayem and Mr.
    Abdul-Hussein  which was to serve as the independent evidence of fabrication 
    was inadmissible:
R. v. Al
-
Enzi
, 2016 ONSC 6911;
R. v.
    Al-Enzi
, 2016 ONSC 6972.

[32]

As a result, there was
    an issue at the end of the trial as to whether there was, in fact, any
    independent evidence of fabrication and, consequently, how the jury should be
    instructed on the proper use of the appellants alleged lie to police.

[33]

In pre-charge
    discussions it was agreed that, if the trial judge found that there was
    independent evidence of fabrication, an instruction to the jury would be
    necessary to explain that an inference of consciousness of guilt could only be
    drawn if the independent evidence of fabrication was accepted.

[34]

Then, during mid-charge
    discussions, the following exchange occurred, in which the trial judge noted
    her intention to find that there was no independent evidence of fabrication:

Trial judge: Well I intended to make it a
    prohibited use of the evidence and so maybe Ive just not used the wording the
    way it should have been used. I have to say, it was rather tricky as the fellow
    said it is going to be.

Defence counsel: My  might I  I respectfully
    perhaps ask Your Honour is  is 
is it Your Honours
    meaning that there was no evidence of fabrication?

Trial judge:
Thats
    right.
[Emphasis added.]

[35]

In light of this
    finding, further discussion ensued regarding the specific wording of the charge
    to the jury. The trial judge proposed the following language:

So are you happy with in all of the
    circumstances of  in all the circumstances
this evidence
    is part of the narrative for you to consider along with the rest of the evidence
or do you want me to change it even more than that? [Emphasis added.]

[36]

Defence counsel
    indicated that he could live with the instruction. Crown counsel, however,
    opposed the use of the word narrative, arguing instead that it should be
    characterized as part of the evidence. The trial judge noted that she would
    consider the Crowns submission.

[37]

The relevant portion of
    the trial judges final instruction was as follows:

It is for you to decide whether Nawaf
    Al-Enzis statement to the police about being at Cosmos Bar was true or false
    based on all the evidence presented by the Crown.

When considering what inference, if any, to
    draw from the evidence of Mr. Al-Enzis claim that he was at Cosmos Bar on the
    night of August 18 or early morning of August 19, 2006,
keep
    in mind that people sometimes lie for entirely innocent reasons
.



This is just one piece
    of evidence to be considered with all the other evidence
when you decide whether the Crown has proven Mr. Al-Enzis guilt
    beyond a reasonable doubt. [Emphasis added.]

(2)

Governing Principles

[38]

In Canadian law, there
    is a well-established distinction between an exculpatory statement by an
    accused that is disbelieved, and one that is determined to have been fabricated
    or concocted to avoid culpability:
R. v. Wright
, 2017 ONCA 560, 354
    C.C.C. (3d) 377, at para. 38. The importance of this distinction lies in the
    fact that, while a statement that is merely disbelieved is not evidence that
    strengthens the Crowns case, a statement that has been deliberately concocted
    can be capable of supporting an inference of guilt:
OConnor;
at para.
    38. In other words, where the Crown can prove that an accuseds exculpatory
    statement was not simply untrue, but an intentional fabrication, the trier of
    fact is entitled to draw an inference that the accused lied to conceal their
    guilt.

[39]

However, in order to
    prove an intentional fabrication, the Crown must adduce evidence of that
    fabrication, independent of the evidence that contradicts or discredits the
    exculpatory statement:
Wright
, at paras. 40-41;
OConnor
, at
    paras. 21-22;
R. v. Laliberté
, 2016 SCC 17, [2016] 1 S.C.R. 270, at
    paras. 3-4. Put differently, the Crown must not only adduce evidence that
    disproves the exculpatory statement, but also adduce independent evidence that proves
    that the exculpatory statement was made for the purpose of deflecting guilt
    from the accused. This point was also recently made by this court in the case
    of
R. v. Ching
, 2019 ONCA 619, 378 C.C.C. (3d) 284, at para. 47, where
    the court stated: 
Independent
    evidence of concoction can, however, be found in the very content of the
    impugned statements, depending on the context in which they were made.
    Independent, in this sense, means that the evidence of concoction is separate
    from the evidence of guilt, not necessarily separate from the statements
    themselves.
For example, where an accused has made
    contradictory exculpatory statements, the self-contradiction of an accused may
    constitute independent evidence of fabrication: see
R. v. Shafia
,
    2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 288, leave to appeal refused,
    [2017] S.C.C.A. No. 17. This requirement ensures that the Crown is made to
    prove an accuseds guilt beyond a reasonable doubt, and that mere disbelief of
    an accused does not automatically lead to a guilty verdict:
OConnor
,
    at para. 20, citing
R. v. Coutts
(1998), 126 C.C.C. (3d) 545 (Ont.
    C.A.), at pp. 551-552, leave to appeal refused, [1998] S.C.C.A. No. 450.

[40]

Where the exculpatory statement
    is made out of court, independent evidence of fabrication may emerge from the
    evidence of the circumstances in which the statement was made. Such evidence
    will necessarily be case and fact specific. Some examples of such evidence are
    pre-arrest exculpatory statements that are specific and detailed or
    post-arrest statements that are inherently implausible:
Wright
, at
    para. 48.

[41]

Where such independent
    evidence of fabrication exists, these principles should be made clear to the
    trier of fact. In particular, the following should be communicated:

1) the trier of fact may, but does not have
    to, disbelieve the accuseds exculpatory statement;

2) if they disbelieve the statement, is there other,
    independent evidence upon which they may, but do not have to, find that the
    accused fabricated the exculpatory statement;

3) if, on the basis of the independent
    evidence, they do not find that the accused fabricated the statement, they must
    ignore the statement and treat it as if it had never been given;

4) by contrast, if they do find that the
    accused fabricated the statement, they may consider the reason why the accused
    fabricated the statement, including whether it was to conceal their involvement
    in the offence(s) charged. This determination must be made in light of all the
    evidence.

See
R.
    v. Oland
, 2016 NBCA 58, at para. 69, leave to appeal refused, [2016]
    S.C.C.A. No. 188; D. Watt,
Watts Manual of Criminal Jury Instructions
,
    2nd ed. (Toronto: Thomson/Carswell, 2015).

[42]

Where an instruction
    regarding fabrication is provided, a trial judge should carefully outline what
    evidence is capable of constituting independent evidence of fabrication:
OConnor
,
    at para. 38;
R. v. Clause
, 2016 ONCA 859, 133 O.R. (3d) 321, at para.
    62.

[43]

However, as noted in
R.
    v. Polimac
, 2010 ONCA 346, 254 C.C.C. (3d) 359, leave to appeal refused,
    [2010] S.C.C.A. No. 263, the failure of a trial judge to provide such an
    instruction will not always constitute a reversible error. Rather, the question
    for an appellate court is not whether an
OConnor
instruction would
    have been appropriate, but whether the instruction given prejudiced the
    appellants right to a fair trial: at para. 106. The need for a reviewing
    court to determine whether the instruction that the trial judge
did
provide
    caused the accused prejudice has been repeatedly emphasized by this court: see
R. v. Selvanayagam
,
2011 ONCA 602, 281 C.C.C.
    (3d) 3, at paras. 30-33;
R. v. Stevenson
, 2014 ONCA 842, 317 C.C.C.
    (3d) 385, at para. 103, leave to appeal refused, [2015] S.C.C.A. No. 37;
R. v.
    Zekarias,
2018 ONCA 585, at para. 21.

[44]

In determining whether an
    accused was prejudiced by a trial judges instruction to the jury, an appellate
    court must undertake a functional assessment of the charge. This point was
    explained by this court in
R. v. Badgerow
, 2019 ONCA 374, 146 O.R.
    (3d) 35, at paras. 17-18:

Appellate review of the adequacy of a jury
    instruction requires a functional assessment.
The court
    asks whether the charge, read as a whole in the context of the specific case,
    properly equipped the jury to decide the case based on the application of the
    applicable legal principles to the evidence.

The context of the case includes
the evidence, the positions of the parties, the closing
    arguments, the submissions of counsel in advance of the charge, and any
    objections
taken to the charge. [Emphasis added; citations omitted]

[45]

This court has also
    recognized that the failure of a trial judge to outline for the jury the
    circumstances supporting a finding of fabrication may inure to the benefit of
    the accused. This point was made in
Polimac
, at para. 106:

[A]n instruction that highlighted the
    circumstances that would support a finding of fabrication were the jury to find
    inaccuracies in the appellants statements
may well have
    only emphasized the powerful case to be made for fabrication in the
    circumstances of this case
. [Emphasis added.]

[46]

The risk of prejudice
    arising from a trier of facts confusion of mere disbelief with affirmative
    evidence of guilt underscores the law in this area. However, this risk is
    lessened where the statement to be adduced is an out-of-court statement of the
    accused, as compared to the accuseds in-court testimony. OConnor A.C.J.O.,
    writing for this court in
OConnor
, described this distinction at
    para. 25:

When an out-of-court statement of an accused
    is introduced into evidence it does not have the same immediate connection to
    the trial itself as an accused's testimony and for that reason, even if shown
    to be false, it does not present the same threat that the trier of fact will
    confuse mere disbelief with affirmative evidence of guilt and improperly lessen
    the burden on the Crown.

(3)

Arguments on Appeal

[47]

The appellant makes two
    arguments on appeal on this issue.

[48]

First, as the trial
    judge had indicated that she had found that there was no independent evidence
    of fabrication, she ought to have instructed the jury that the alibi, if
    disbelieved, had no probative value and was simply part of the narrative. The
    instruction that the statement was just one piece of evidence to be considered
    with all the other evidence invited the jury to draw the improper inference
    that the appellants lie was indicative of a consciousness of guilt. The
    instruction thus invited the very mischief that was to be avoided.

[49]

Second, if there was,
    in fact, independent evidence of fabrication, the instruction failed to provide
    the jury with the necessary tools to assess that evidence and determine whether
    they could find that the appellant had deliberately lied to conceal a
    consciousness of guilt.

[50]

In response, the Crown
    argues that the circumstances in which the appellant made the statement to
    Detective Hill provided independent evidence of fabrication. In light of this
    evidence, it would have been appropriate for the trial judge to provide an
    instruction regarding the proper use of this evidence. However, in this case, the
    absence of an instruction did not cause prejudice.

(4)

The Principles Applied

(a)

The Circumstances of the Appellants Statement Provide Independent
    Evidence of Fabrication

[51]

To begin, I first
    consider whether there was independent evidence of fabrication capable of
    supporting an inference of the accuseds consciousness of his guilt. In my
    view, there was. Accordingly, I conclude that the trial judge erred in
    determining otherwise.

[52]

In reaching this
    conclusion, I consider the circumstances of the appellants exculpatory
    out-of-court statement. I note that this courts description of the
    circumstances providing independent evidence of fabrication in
OConnor
,
    at para. 31,

are apposite:

His first statement was made the same day as
    the shooting and, importantly,
was made to the police at
    a time when the police did not suspect the appellant
and the appellant
    did not have reason to believe that he was a suspect. The police, as a matter
    of routine, questioned witnesses who might have information about the
    deceased's whereabouts prior to the shooting. The appellant's initial statement
    furnished a complete alibi and if true,
would lead the
    police to conclude that he was not involved in the offence
. That
    statement and the next two statements were
very precise,
    both as to the appellant's whereabouts and the times he was in the various
    places.
If the jury were to disbelieve the appellant's statements, they
    might fairly ask why would the appellant tell such
detailed
    and specific lies
to the investigators. Why not tell the truth? And how
    was it that the
appellant was so well prepared with a
    detailed and precise statement
about his whereabouts when questioned by
    the police? [Emphasis added.]

[53]

I conclude that the
    circumstances of the appellants statement to the police constitute independent
    evidence of fabrication. As in
OConnor
, the appellant provided his
    statement to Detective Hill shortly after the shooting, at a time when he was
    not a suspect. The appellants statement was detailed and precise with respect
    to the appellants whereabouts and timing. The appellant volunteered this
    information without any prompting, and if believed, the information would
    deflect suspicion away from him. These circumstances, taken together, could
    reasonably constitute independent evidence of fabrication.

[54]

Given the overt
    similarities between the circumstances arguably giving rise to independent
    evidence of fabrication in this case and
OConnor
, I conclude that the
    trial judge erred in law in her understanding of what circumstances can give
    rise to such evidence. Applying the appropriate understanding of the law to
    this case, it is clear that there was evidence that arguably constituted
    independent evidence of fabrication. This, however, does not end the analysis.

(b)

The Trial Judges Instruction Did Not Prejudice the Appellant

[55]

The trial judge
    concluded that there was no independent evidence of fabrication and should have
    instructed the jury that if they disbelieved the accuseds evidence, they
    should disregard it. This did not occur. However, any resulting prejudice is
    lessened by the circumstances I have discussed demonstrating independent
    evidence of fabrication.

[56]

As independent evidence
    of fabrication existed, the trial judge should have provided an instruction for
    the jury outlining the evidence that supported such a finding. The trial judge
    did not do so.

[57]

As I have indicated, however,
    the question on appeal is not whether the trial judge should have given such an
    instruction, but whether the trial judges failure to do so prejudiced the
    appellants right to a fair trial:
Polimac
, at para. 106.

[58]

I conclude that the
    trial judges instruction did not prejudice the appellant. To the contrary, and
    similar to
Polimac
, the trial judges failure to outline the
    independent evidence of fabrication may have inured to the appellants benefit.

[59]

I first consider
    whether the trial judges approach to the jury instruction on this issue prejudiced
    the appellant. I note that, unlike in
Polimac
(see para. 94 of that
    case), defence counsel in this case asked for an
OConnor
warning if
    the trial judge found independent evidence of fabrication. As the trial judge
    concluded that no such independent evidence existed, defence counsel was
    essentially deprived of any potential benefit of their requested instruction.

[60]

Similarly, I note that
    defence counsel agreed to a specific version of the draft charge when the trial
    judges proposed charge was circulated to counsel. This draft included the
    statement that the evidence was part of the narrative for you to consider
    along with the rest of the evidence. The version that was given, however, did
    not include this language, instead stating that it was one piece of evidence
    to be considered with all the other evidence.

[61]

In my view, any
    prejudice arising from the trial judges approach was mitigated by various
    factors.

[62]

First, despite the
    appellants argument on appeal that the trial judge ought to have instructed
    the jury that the alibi, if disbelieved, had no probative value, defence
    counsel at trial resiled from this position. Instead, trial defence counsel
    agreed to the proposed charge stating: In all the circumstances this evidence
    is part of the narrative for you to consider along with the rest of the
    evidence.

[63]

Furthermore, and more
    importantly, the trial judges failure to outline the circumstances supporting
    independent evidence of fabrication may have inured to the appellants benefit.
    This instruction would have focused the trier of facts attention on the
    circumstances supporting a strong inference of fabrication. An instruction
    highlighting the circumstances supporting a finding of fabrication may well
    have only emphasized the powerful case to be made for fabrication in the
    circumstances of this case:
Polimac,
at para. 106.

[64]

Finally, I note that
    the trial judges instructions to the jury otherwise equipped the jury with the
    tools necessary to assess the importance, or lack thereof, of the appellants
    disbelieved evidence. In this respect, the trial judge instructed the jury to
    keep in mind that people sometimes lie for entirely innocent reasons when
    assessing the appellants evidence that he was at the Cosmos Bar at the
    relevant time. The trial judge then referenced the testimony of multiple trial
    witnesses who were involved in the criminal subculture, reminding the jury that
    [t]hey all testified that they typically lie to the police when questioned
    about any matter.

[65]

In my view, these
    instructions made clear to the jury that the simple presence of a lie did not
    necessarily give rise to a consciousness of guilt by the appellant. While the
    safer course would have been to include a more precise

instruction, I
    cannot say that the manner in which this issue was left with the jury
    undermined the appellants right to a fair trial:
Zekarias
, at para.
    21.

[66]

In all the circumstances,
    I conclude that the trial judges failure to provide the
OConnor
instruction
    did not prejudice the appellant. Accordingly, I would dismiss this ground of
    appeal.

II.

Did the trial judge err in concluding that the
    appellants statements to police were voluntary and admissible?

(1)

Background

[67]

As outlined above, on
    August 22, 2006, the appellant had a telephone conversation with Detective Hill
    in which he provided details about his contact with Mr. Zalal on August 18. The
    appellant attended the police station the next day to retrieve his passport. He
    reiterated that he had no information about the events of Mr. Zalals death.

[68]

A few months later,
    Sergeant Michael Hudson contacted the appellant for an interview. The appellant
    agreed, and on November 8, 2006, he attended the Ottawa police station to give
    a statement. The interview, conducted by Detective John Monette, was
    video-taped and recorded. The appellant acknowledged that he was there
    voluntarily. He was informed that he was not a suspect and that he was free to
    leave at any time. The appellant maintained a story consistent with the
    statement he had given to Detective Hill on August 22. He eventually indicated
    that he had nothing more to say.

[69]

Before leaving the
    station, however, the appellant agreed to speak to Sergeant Hudson about
    something that the appellant had told him on the phone the night before  the appellant
    had stated, Mike, they are going to kill me. The appellant proceeded to speak
    with Sergeant Hudson in a second interview room without cameras. Sergeant
    Hudson brought a small audio recorder into the room and surreptitiously
    recorded the conversation. Sergeant Hudson expressed concern for the
    appellants safety and mentioned the possibility of the appellant serving as a
    witness or confidential informant. The appellant stated that he would consider
    the proposal. He then left.

[70]

As mentioned above, prior
    to trial, the Crown brought an application to admit the appellants statements
    to police as voluntary. The appellant opposed the application. He argued that the
    record of the August 22 statement was incomplete and that he had been induced
    to make the statement in exchange for his passport. He also argued that the
    statements probative value (the potential falsehood that he attended the bar
    on August 18) was outweighed by its prejudicial effect (that his refusal to
    cooperate would indicate guilt). The November 8 statements were similarly
    involuntary, as, among other things, they were tainted by the inadmissible
    statement on August 22 and the appellant had been misled about his status in
    the investigation.

[71]

The trial judge allowed
    the Crowns application, admitting the statements as voluntary. There was no
    evidence that Detective Hill threatened to withhold the appellants passport
    unless he gave a statement. In fact, the evidence showed the opposite, as
    Detective Hill returned the passport in spite of the appellants refusal to
    provide a statement. Although there was no recording of the phone call,
    Detective Hills notes were detailed enough to provide adequate clarity as to
    the nature of the conversation that took place. The ultimate reliability of
    Detective Hills evidence could be assessed by the jury. Any potential
    prejudice could be addressed by way of instruction, and the jury was entitled
    to consider whether the appellant gave a deliberately false statement. With
    regard to the November 8 statements, there was no tainting and, while there was
    some evidence at the time to implicate the appellant in the murder, Detective
    Monette and Sergeant Hudsons actions demonstrated that he was not a suspect.

(2)

Arguments on Appeal

[72]

The appellant
    effectively makes four arguments on appeal. First, as the record provided by
    Detective Hill is not a verbatim record of the phone conversation, the court
    cannot be satisfied that Detective Hill did not hold out the return of the
    passport as an inducement for the statement.

[73]

Second, even if the
    August 22 statement was voluntary, it should not have been admitted, as its
    prejudicial effect outweighs its probative value. A trier of fact can only find
    that an accused deliberately lied where there is independent evidence of
    fabrication above and beyond a simple finding that the accuseds alibi is
    false. In this case, no such independent evidence was available. The
    prejudicial effect, however, was significant. Admission of the statement
    created a real risk that jurors would presume that only a guilty person would
    lie to police.

[74]

Third, the November 8
    statements were tainted, as they were the result of a continuation of the
    involuntary statement made on August 22.

[75]

And fourth, the
    appellants rights under s. 10(b) of the
Canadian Charter of Rights and
    Freedoms
were breached when he was not provided his rights to counsel
    prior to the November 8 interviews. Since the appellant was objectively a
    suspect at that point in time (given that investigative documents identified
    him as a possible suspect), the police failed to make clear his level of
    jeopardy.

[76]

I note that counsel for
    the appellant originally argued that the officers surreptitious recording of
    the second statement on November 8 was unlawful under s. 8 of the
Charter
,
    and the trial judge should have considered this under her residual discretion
    to exclude evidence. However, as this argument was abandoned at the hearing, I
    will not address it.

[77]

In response, the Crown
    argues that: i) the trial judge was entitled to find that Detective Hills
    handwritten notes provided a complete record of the substance of the August 22
    telephone call; ii) the trial judge was correct not to exclude the statements
    on the basis of her residual discretion to exclude evidence; iii) even if the
    August 22 statement was involuntary and, thus, inadmissible, there was no
    connection between the August 22 interview and the November 8 interviews; and iv)
    the trial judge properly considered whether the appellant was a suspect at the
    time of the November 8 interviews and determined that he was not.

(3)

The Principles Applied

(a)

The August 22 Statement was Voluntary and Properly Admitted

[78]

I reject the
    appellants arguments regarding the voluntariness of the August 22 statement.

[79]

The confessions rule
    establishes that any statement made to a person in authority is admissible only
    where the Crown can demonstrate, beyond a reasonable doubt, that it was made
    voluntarily:
R. v. Oickle
, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 30;
R. v. Hayes
, 2020 ONCA 284, 391 C.C.C. (3d) 453, at para. 38.

[80]

Where a trial judge
    applies the correct test and considers all relevant circumstances, deference is
    owed to the trial judges ultimate determination on voluntariness:
Oickle
,
    at para. 71;
R. v. Pearson
, 2017 ONCA 389, 348 C.C.C. (3d) 277, at
    para. 14, leave to appeal refused, [2017] S.C.C.A. No. 465.

[81]

In this case, it is
    alleged that the appellants statement was made subject to an inducement by
    Detective Hill. At the time this statement was given, the appellant was not a
    suspect, and he was not treated as such by the officer. Accordingly, he was not
    facing any jeopardy that could have compromised his willingness to cooperate
    with the officer. In my view, there is no evidence of any inducement, much less
    an inducement strong enough to raise a reasonable doubt as to whether the appellants
    will was overborne. The trial judge was entitled to accept Detective Hills
    evidence that her notes, while not a complete recording, sufficiently detailed
    the substance of the appellants statement. Non-recorded interrogations are not
    inherently suspect:
Oickle
, at para. 46;
R. v. Culotta
, 2018
    ONCA 665, 142 O.R. (3d) 241, at para. 23, affd 2018 SCC 57, [2018] 3 S.C.R.
    597.

[82]

I also find no error in
    the trial judges decision to refrain from exercising her residual discretion
    to exclude the statement. As discussed above, the circumstances of the
    statement provided independent evidence of fabrication. Consequently, the jury
    was entitled to consider whether the appellant had engaged in a deliberate
    concoction to avoid culpability.


(b)

The November 8 Statements were Voluntary and Properly Admitted

[83]

Where a statement by an
    accused is determined to have been made involuntarily and is accordingly
    inadmissible, any subsequent statement may also be excluded if the tainting
    features which disqualified the first confession continued to be present or if
    the fact that the first statement was made was a substantial factor
    contributing to the making of the second statement:
R. v. Foster
,
    2017 ONCA 751, at para. 10, quoting
R. v. I. (L.R.) and T. (E.)
,
    [1993] 4 S.C.R. 514, at p. 526.

[84]

In this case, as I have
    found that the August 22 statement was voluntary, there is no need to address
    the issue of whether the November 8 statements were tainted.

[85]

With regard to the
    appellants argument that he was a suspect at the time of the November 8
    interviews and, consequently, had a right to be informed of his right to
    counsel, this issue was sufficiently addressed by the trial judge. She accepted
    the evidence of Detective Monette and Sergeant Hudson that they had no
    particular suspect in mind in November 2006 and that they wanted to interview
    the [appellant] because of his involvement with Mr. Zalal on the afternoon of
    his death as well as the fact that they believed that the [appellant] knew more
    about the murder than he had told Detective Hill: Voluntariness Reasons, at
    para. 74. The trial judge was entitled to make this finding. I see no reason to
    interfere.

[86]

In any case, this
    court, per Fairburn J.A. (as she then was), recently held in
R. v. Joseph
,
    2020 ONCA 73, 385 C.C.C. (3d) 514, at para. 49, that police are not obliged to
    caution a suspect simply because he or she is a suspect. Rather, s. 10(b)
    of the
Charter
is engaged at the time of arrest or detention: at para.
    50, citing
R. v. Suberu
, 2009 SCC 33, [2009] 2 S.C.R. 460, at para.
    20. I agree with this position. The appellant in this case was neither arrested
    nor detained, and the mere fact that he may have been a suspect did not engage
    his rights under s. 10(b) of the
Charter
. There was no
Charter
violation. The November 8 statements were voluntary and properly admitted.

III.

Did the trial judge err in admitting Mr. Khaleyis May 4, 2007
    statement to the police for the truth of its contents?

(1)

Background

[87]

Mr. Ramin Khaleyi was a
    close associate of the appellant. Between early February 2007 and May 2007, Mr.
    Khaleyi contacted the police with an offer to provide information regarding the
    death of Mr. Zalal, as well as other criminal activities. At the time, Mr.
    Khlaleyi was facing charges for breaching a court order and fraud.

[88]

During this period, Mr.
    Khaleyi made numerous statements to the police pertaining to information he had
    about Mr. Zalals murder. Some of this information was based on his direct
    knowledge. In other instances, he was simply repeating what he had gathered
    from various sources.

[89]

When testifying as a
    witness at the appellants trial, Mr. Khaleyi recanted much of what he had told
    police, including the statements that inculpated the appellant. As a result,
    the Crown sought to have several of his pre-trial statements admitted under the
    principled exception to the hearsay rule. The relevant statements were provided
    on the following dates: February 7, 2007, February 11, 2007, April 20, 2007,
    April 24, 2007, May 3, 2007, and May 4, 2007.

[90]

The trial judge
    admitted Mr. Khaleyis May 4, 2007 statement under the principled exception to
    the rule against hearsay, concluding that the statement was both necessary and
    reliable. The appellant challenges the trial judges conclusions on both
    necessity and reliability.

[91]

A summary of the
    various conversations with the police, which culminated in the May 4, 2007
    statement, is provided below.

(2)

The Statements

(a)

February 7, 2007:

[92]

On February 7, 2007, Mr.
    Khaleyi provided his first statement to the police. He agreed to be a
    confidential informant in exchange for payment and assistance with his
    outstanding criminal charges. No promises were given, but an indication was
    made that if the information provided was reliable, assistance might be
    possible. On this occasion, Mr. Khaleyi identified the appellant, Mr.
    Abdul-Hussein, and Mr. Kayem as involved in the murder. He also stated that the
    appellant told him that the gun used was thrown in a sewer on Marlin Private, a
    neighbourhood in Ottawa, along with a crowbar and two masks.

(b)

February 11, 2007:

[93]

Mr. Khaleyi gave
    another statement on February 11, 2007. On this occasion, he still wanted to
    become a confidential informant and again expressed a desire to be paid. He
    provided details about the information he had heard from others, including the
    appellant, about the location of the homicide.

(c)

April 20 & 24 2007:

[94]

Mr. Khaleyi provided additional
    statements to the police.

(d)

May 3, 2007:

[95]

Mr. Khaleyi was
    interviewed on May 3, 2007 after he alleged that he had been kidnapped and
    beaten by associates of the appellant the night before. He expressed a desire
    to become a witness against the appellant, as opposed to merely a confidential
    informant. He was upset and displayed clear animosity toward the appellant. In
    this statement, he mentioned that he had been with the appellant at a hotel
    where the appellant had confessed to committing the murder. He was told by
    police to take some time to compose himself before deciding to become a witness.

(e)

May 4, 2007:

[96]

On May 4, 2007, Mr.
    Khaleyi provided a videotaped statement to the police. He was under oath and received
    a caution about the consequences of lying. He was taken through the evidence he
    provided between February 7, 2007 and May 3, 2007.

[97]

Mr. Khaleyi claimed
    that the appellant had confessed to him about the murder of Mr. Zalal, as well
    as provided other information that placed the appellant with Mr. Kayem and Mr.
    Abdul-Hussein on the night of the shooting.

[98]

Concerning the
    confession, Mr. Khaleyi alleged that, shortly before Christmas in 2006, he
    spent the night at a hotel with his girlfriend, the appellant, and the
    appellants wife. At that time, Mr. Khaleyi had recently been released from
    jail. On the evening in question, he told the appellant that he had heard a rumour
    while in custody that the appellant had killed Mr. Zalal. Mr. Khaleyi asked the
    appellant if the rumours were true and if he had killed Mr. Zalal. The
    appellant replied yes and added that he had the boys drop off the body.

[99]

Mr. Khaleyi stated that
    the next day, the appellant told Mr. Khaleyi to keep [his] mouth shut or [he
    is] gonna die.

[100]

Mr. Khaleyi also told
    police that the day before Mr. Zalals murder, he met briefly with the
    appellant at Marlin Private. The appellant met with Mr. Khaleyi to drop off two
    cigarettes. The appellant, who was driving a Chevrolet Avalanche, then left, following
    Mr. Abdul-Hussein and Mr. Kayem in their silver and white, two-door car.

[101]

Mr. Khaleyi also
    provided information that was proved inaccurate, including: i) that Mr. Zalal
    had been bound and beaten prior to being shot; ii) that the shooting had
    occurred in a house; and iii) that the gun, a crowbar, and two masks used in
    the killing had been disposed of in an area of Ottawa.

(3)

Examination-in-chief
    and Testimony in
voir dire
:

[102]

At trial, Mr. Khaleyi,
    essentially recanted from his earlier statements. He repeatedly claimed that he
    had no memory of his interactions with the police. In his examination-in-chief,
    Mr. Khaleyi provided some evidence confirming his recollection of his
    statements to police. However, he also claimed that as a result of the passage
    of time, his poor memory due to alcohol and drug use, and his change in
    lifestyle, he was uncertain about the accuracy of the events he described in
    his statements. Since he consumed a large quantity of drugs on the night of the
    alleged confession, he could only say that he thought that the appellant had
    confessed. He stated that he had a limited independent memory of what he told
    the police. He claimed that he suffers from significant hearing loss and that
    this may have played a factor in what he believed he heard the appellant say at
    the hotel. He was given the chance to review his audio and video statements,
    including transcripts. Ultimately, he testified that he no longer believed that
    he heard the appellant confess to murder.

[103]

In light of Mr.
    Khaleyis inconsistent testimony (and his expressions of frustration while
    testifying), the Crown brought an application to declare Mr. Khaleyi an adverse
    witness and for permission to cross examine him on prior inconsistent
    statements, pursuant to ss. 9(1) and 9(2), respectively, of the
Canada
    Evidence Act,
R.S.C., 1985, c. C-5.

[104]

The Crown argued that
    Mr. Khaleyi was exaggerating the extent of his memory loss and that it was
    necessary to cross examine him on the inconsistencies in his testimony. They further
    argued that Mr. Khaleyi was an adverse witness, in light of the fact that he
    claimed:

i)

that he had repeated his position numerous times;

ii)

that the Crown had ruined his life; and

iii)

that reviewing his prior statements was unlikely
    to assist with his memory.

[105]

The trial judge allowed
    the Crowns application under s. 9(2) to cross examine Mr. Khaleyi on his May 4,
    2007 video statement, among others. She later held that Mr. Khaleyi was an adverse
    witness under s. 9(1).

[106]

However, Mr. Khaleyis cross-examination
    did not prove fruitful. The Crown therefore brought an application to admit Mr.
    Khaleyis prior statements to police for the truth of their contents.

[107]

The trial judge
    admitted Mr. Khaleyis May 4, 2007 statement for the truth of its contents. She
    held that the statement:

i)

was necessary, because Mr. Khaleyi had recanted
    from his prior statements, and

ii)

satisfied the threshold reliability requirement,
    as the statement was taken under oath and videotaped, the defence would have an
    opportunity to cross examine Mr. Khaleyi, and parts of the statement were
    independently corroborated.

(4)

Arguments on Appeal

[108]

The appellant argues
    that the trial judge erred in admitting the May 4, 2007 statement for four
    reasons.

[109]

First, she erred in her
    assessment of necessity by misapprehending the extent of the witness lack of
    memory. While Mr. Khaleyi did profess a lack of memory on some aspects of his
    former testimony, he did testify about other aspects, including his encounter
    with the appellant on the evening of the murder, and about a threat allegedly
    made by the appellant. Accordingly, there was no need for the witness prior
    statement to be admitted and the necessity requirement was not met.

[110]

Second, the trial judge
    erred in her assessment of threshold reliability by finding that the defence
    had a meaningful opportunity to cross-examine Mr. Khaleyi, given his
    professed lack of memory.

[111]

Third, Mr. Khaleyis
    statement lacked sufficient circumstantial or evidentiary guarantees of
    reliability, as the corroborative evidence adduced by the Crown did not
    eliminate alternative explanations for the statement, such as the declarant not
    being truthful.

[112]

Fourth, even if the
    threshold requirements for admissibility were met, the trial judge erred by
    failing to consider and exercise her residual discretion to exclude the
    statement. The appellant argues that Mr. Khaleyi was a manifestly unreliable
    witness who was motivated by a desire for financial compensation and
    assistance with criminal charges, as well as animosity toward the appellant. As
    Mr. Khaleyis evidence was not adequately corroborated, there was a real
    risk of a wrongful conviction based on his flawed testimony:
R. v. Khela,
2009
    SCC 4, [2009] 1 S.C.R. 104, at para. 2. Since the alleged confession was
    central to the Crowns case, the trial judge should have noted the risk that
    the jury would be unable to see past the allegation of the confession and thus
    be unable to properly assess Mr. Khaleyis credibility. The verdict may have
    been different had the statement been excluded.

[113]

In response, the Crown
    argues that the May 4, 2007 statement was necessary given how Mr. Khaleyi provided
    only slivers of his prior statements to police in his trial testimony, and
    otherwise effectively recanted.

[114]

The statement was also reliable, both procedurally and
    substantively.

[115]

The Crown next argues that it is implicit from the trial judges
    brief oral reasons that she consciously declined to exercise her residual
    discretion, which she had exercised at other times throughout the trial.

[116]

Finally, if the trial judge made any errors, the curative proviso is
    applicable, as no substantial wrong or miscarriage of justice occurred.

(5)

Governing Principles

(a)

Standard of Review

[117]

A trial judges decision on the admissibility of evidence is
    entitled to deference on appeal, provided that it is compliant with the correct
    legal applicable principles and does not disclose a material misapprehension of
    the evidence central to the assessment:
R. v. Blackman
, 2008 SCC 37,
    [2008] 2 S.C.R. 298, at para. 36;
R. v. Dupe
, 2016 ONCA 653, 340
    C.C.C. (3d) 508, at para. 50.

(b)

Principled Exception to the Rule Against Hearsay Evidence

[118]

Hearsay evidence is presumptively inadmissible on the basis that,
    absent contemporaneous cross-examination of the declarant, the party against
    whom the evidence is offered cannot effectively test the reliability and
    veracity of the out-of-court statement:
Dupe
, at para. 44. Such
    evidence is generally excluded both to protect the integrity of the truth-seeking
    function of the trial and to preserve the fairness of the trial: at para. 44.

[119]

However, under the principled approach to hearsay, hearsay can
    exceptionally be admitted into evidence when the party tendering it
    demonstrates that the twin criteria of necessity and threshold reliability are
    met on a balance of probabilities:
R. v. Bradshaw
, 2017 SCC 35,
    [2017] 1 S.C.R. 865, at para. 23.

(c)

The Principled Exception - Necessity

[120]

In
R. v. Srun,
2019 ONCA 453, 146 O.R. (3d) 307, Watt J.A.
    described the necessity requirement in the following terms, at para. 123:

The
necessity
requirement of the
    principled approach to the hearsay rule may be established where the party
    seeking admission of the hearsay statement cannot compel testimony from the
    declarant.
Indeed, unavailability and thus necessity
    can be established even where the declarant is not unavailable in the strict
    physical sense.
[Emphasis added; citations omitted.]

[121]

Prior jurisprudence demonstrates that the necessity requirement
    should not be narrowly construed. Lamer C.J. (as he then was) writing in
R.
    v. B. (K.G.)
, [1993] 1 S.C.R. 740, described the flexible analysis of this
    criterion, at p. 796:

However, it is important to remember that the
necessity criterion "must be given a flexible definition,
    capable of encompassing diverse situations"
. Wigmore referred to
    two classes of necessity:

(1) The person whose assertion is offered
    may now be dead, or out of the jurisdiction, or insane, or otherwise
    unavailable for the purpose of testing. This is the commoner and more palpable
    reason ....

(2) The
assertion may
    be such that we cannot expect, again, or at this time, to get evidence of the
    same value from the same or other sources
.... The necessity is not so
    great; perhaps hardly a necessity, only an expediency or convenience, can be
    predicated. But the principle is the same. [Emphasis added; citations omitted.]

[122]

Finally, [w]here a witness recants from a prior statement,
    necessity is established:
R. v. Youvaraj
, 2013 SCC 41, [2013] 2
    S.C.R. 720, at para. 22; see also
R. v. McMorris
, 2020 ONCA 844, at
    para. 22.

(d)

The Principled Exception  Threshold Reliability

[123]

Watt J.A. observed in
Srun
, at paras. 125-127, that the threshold
    reliability requirement can be met in one of two, non-mutually exclusive ways,
    generally referred to as procedural reliability and substantive reliability:

Procedural
    reliability
is established when there are
    adequate safeguards for testing the evidence despite the fact that the
    declarant has not given the evidence in court, under oath or its equivalent and
    under the scrutiny of contemporaneous cross-examination. These substitutes must
    provide a satisfactory basis for the trier of fact to rationally evaluate the
    truth and accuracy of the hearsay statement.
Among the
    substitutes for traditional safeguards are video recording the statement,
    administration of an oath and warning the declarant about the consequences of
    lying. However, some form of cross-examination, as for example of a recanting
    witness at trial is usually required.

Substantive

reliability
is established where the hearsay statement is inherently
    trustworthy. To determine whether the statement is inherently trustworthy, a
    trial judge
considers the circumstances in which the
    statement was made and any evidence that corroborates or conflicts with the
    statement
. The standard for substantive reliability is high: the judge
    must be satisfied that the statement is so reliable that contemporaneous cross-examination
    on it would add little if anything to the process.

Procedural and
    substantive reliability are not mutually exclusive.
They may work in tandem in that elements or both can combine to
    overcome the specific hearsay dangers a statement might present even where
    each, on its own, would be insufficient to establish reliability. [Emphasis
    added; citations omitted]

[124]

A trial judge assessing the admissibility of evidence in a
voir
    dire
must keep in mind the distinction between
threshold
and
ultimate
reliability. At the admissibility stage, a trial judge has a limited
    role in assessing the evidences threshold reliability on a balance of
    probabilities. It is for the trier of fact to determine the evidences
ultimate
reliability; it is crucial to the integrity of the fact-finding process
    that the question of ultimate reliability not be pre-determined on the
    admissibility
voir dire
:
R. v. Khelawon
, 2006 SCC 57, [2006]
    2 S.C.R. 787, at para. 93; see also
Bradshaw
, at para. 42;
McMorris
,
    at para. 23.

(e)

Residual Discretion to Exclude Unduly Prejudicial Evidence

[125]

Satisfying the twin criteria of the principled exception to the
    hearsay rule does not end the admissibility analysis, however, as a trial judge
    maintains a residual discretion to exclude otherwise admissible hearsay where
    its probative value is outweighed by its prejudicial effect:
Srun
, at
    para. 128.


(6)

The Principles Applied

(a)

The Statement was Necessary and Reliable

[126]

I am satisfied that the trial judge correctly admitted Mr. Khaleyis
    May 4, 2007 statement. As I will explain, it met the necessity and reliability
    requirements under the principled exception to the hearsay rule. Furthermore,
    the trial judge was correct not to use her residual discretion to exclude the
    statement, given its significant probative value.

[127]

At trial, Mr. Khaleyi effectively recanted much of what he had told
    the police. He repeatedly claimed that he had a limited memory of his
    interactions with police and refused to adopt the content of his earlier
    statements as true. He provided several explanations as to why his evidence
    differed from his statements, including how he: was using drugs heavily,
    including when he heard the alleged confession; was suffering from mental
    health issues; suffered from hearing loss, which likely impacted his earlier
    belief that he heard the appellant confess; was manipulated by the police;
    wanted assistance with his charges; and wanted money for his evidence. He commented
    that reviewing transcripts of his past statements was unlikely to refresh his
    memory. Ultimately, he stated that he could not now swear under oath that he
    heard the appellant confess to the murder. These circumstances formed the
    context in which the Crown sought to adduce the May 4 statement for the truth
    of its contents.

[128]

The trial judge, as the evidentiary gate keeper, was obliged to
    satisfy herself that the May 4 statement satisfied the threshold admissibility
    requirements before it could be admitted for its truth. Once admitted, it could
    then be considered by the jury, who as the triers of fact, were responsible for
    the determination of the ultimate reliability and consideration of the
    statement. In my view, the trial judge correctly carried out her function.

[129]

First, the necessity criterion was satisfied. By recanting from the
    statement, Mr. Khaleyi was effectively depriving the court of his evidence.
    This was sufficient to satisfy this requirement:
Youvaraj
, at para. 22;
McMorris
, at para. 22.

[130]

Second, the reliability requirement was also met.

[131]

The statement was procedurally reliable. Both parties acknowledge
    that the May 4 statement was made under oath and video recorded in its
    entirety. Further, Mr. Khaleyis explanations for his statements and
    recantation were subject to cross-examination by the defence.

[132]

The appellant argues that the trial judge was wrong to rely on Mr.
    Khaleyis availability for cross-examination as an indicium of procedural
    reliability in this case. I do not agree.

[133]

While Mr. Khaleyi offered multiple explanations for his changed
    testimony, I do not consider this as having rendered the cross-examination a
    nullity. In this regard, I note that Mr. Khaleyi generally admitted to making
    the prior statement and provided explanations for changing his testimony. As
    noted earlier, he claimed he made the past statements because he: was using
    drugs; had mental health issues; was manipulated by the police; wanted
    assistance with other charges; and wanted money for his information. Defence
    counsel cross examined Mr. Khaleyi on these explanations. Where a witness
    provides explanations for their changed testimony, the trier of fact is able to
    assess both versions of their story and the explanation:
Youvaraj,
at
    para. 49, citing
R. v. U. (F. J.)
, [1995] 3 S.C.R. 764, at para. 46.
    In my view, the defence had a full opportunity to cross examine Mr. Khaleyi
    on these issues.

[134]

In conclusion, Mr. Khaleyis availability for cross-examination
    supports the May 4 statements procedural reliability. As the inquiry into
    threshold reliability is not so focused on the question of whether there is
    reason to believe the statement is true, as it is on the question of whether
    the trier of fact will be in a position to rationally evaluate the evidence, I
    conclude that the nature of Mr. Khaleyis changed testimony did not deprive the
    appellant of a meaningful opportunity for
cross-examination or undercut the statements
    procedural reliability:
Khelawon
, at para. 76. The trier of fact was
    positioned to evaluate the evidence, including Mr. Khaleyis explanations for
    his changed testimony. The May 4 statement was procedurally reliable.

[135]

I also conclude that
    the May 4 statement had certain markers of substantive reliability. The trial
    judge did not have the benefit of the Supreme Courts reasons in
Bradshaw
.
    However, I note that certain material aspects of Mr. Khaleyis May 4 statement
    were corroborated by other pieces of evidence. The material points and their
    relevant corroborative evidence include:

·

The appellants involvement in the
    murder:
The wiretap evidence suggesting the
    appellant was directly involved in the murder;

·

Mr. Kayems involvement in the murder:
Mr. Kayems DNA evidence was found on a cigarette butt located near
    the deceaseds body; and

·

Mr. Khaleyis interaction with the
    appellant and Mr. Kayem at Marlin Private on the night of the murder:
The cell phone tower evidence demonstrating that both the appellant
    and Mr. Kayem accessed the cell tower near Marlin Private, at around 10 p.m.

[136]

Here, alternative
    explanations for Mr. Khaleyis statement include that he was lying because he
    wanted financial compensation, assistance with his charges, revenge against the
    appellant, or to secure his safety from the appellant.

[137]

I agree with the
    respondent that, to an extent, Mr. Khaleyis financial and safety interests
    were contingent on the information being provided to police being true.
    However, I agree with the appellant that the available corroborative evidence
    is not capable, standing alone, of ruling out these alternative explanations.

[138]

Despite these
    evidentiary shortcomings, I conclude that the markers of procedural
    reliability, either alone or in tandem with the corroborative evidence and
    circumstances suggesting substantive reliability, are sufficient to demonstrate
    threshold reliability. The statement bore the traditional markers of procedural
    reliability. Mr. Khaleyis testimony at trial provided the defence with the
    opportunity to cross examine him and impeach the credibility of the May 4
    statement. Accordingly, the trial judge was correct to admit Mr. Khaleyis
    evidence and to leave an assessment of ultimate reliability to the trier of
    fact.

(b)

The Trial Judge Did Not Err by Failing to Exclude the Evidence Under
    Her Residual Discretion

[139]

I also conclude that
    the trial judge was correct not to exclude the evidence under her residual
    discretion.

[140]

As indicated earlier,
    the May 4 statement was highly probative. This evidence, were it believed to be
    true, would directly implicate the appellant in the victims murder.

[141]

The prejudicial risk
    from admitting the statement is outweighed by the probative value. I
    acknowledge that there is a risk inherent to relying on the testimony of
    unsavoury witnesses. However, this risk can be mitigated by counsels
    submissions and the instructions to the jury, as was done here. In this regard,
    I repeat for convenience portions of the trial judges charge to the jury:

Now Im going to talk to you about some of the
    Crown witnesses who were of unsavoury character.



Experience teaches us that testimony from
    Crown witnesses with these backgrounds must be
approached
    with the greatest care and caution.



Common sense also tells you that, in light of
    these circumstances, there is good reason to look at Ms. Smith-Banks, Mr.
    Abdullahi, Mr. Ahmed and
Mr. Khaleyis evidence with the
    greatest care and caution
. You are entitled to rely on their evidence,
    however, even if it is
not
confirmed by another witness or other
    evidence, however 
rather, but it is dangerous for you
    to do so.

Accordingly, you should
look
    for some
confirmation
of their evidence from somebody or something other than their
    own testimony
before you rely upon their evidence in deciding whether
    Crown counsel has proven the case against Nawaf Al-Enzi beyond a reasonable
    doubt.



These witnesses and the circumstances in which
    they testified might well make you wish that somebody or something else
    confirmed what they said. You may believe their testimony, however, if you find
    it trustworthy, even if no one or nothing else confirms it.
When you consider it, however, keep in mind who gave the
    evidence and the circumstances under which they testified
. [Italics in
    original; underlining added.]

[142]

While I acknowledge
    that there may be issues with Mr. Khaleyis evidence, I conclude that the trial
    judge was correct in finding that these difficulties were matters properly left
    to the ultimate trier of fact. It was open to the trial judge to refuse to
    exercise her residual discretion to admit the evidence.

[143]

In conclusion, I do not
    see any errors with the trial judges ruling necessitating appellate
    intervention. This decision was informed by correct principles of law and a
    proper understanding of the evidence. It is therefore entitled to deference. I
    would uphold the ruling that Mr. Khaleyis May 4 statement was properly admitted
    under the principled approach to hearsay.

IV.

Did the trial judge err in leaving constructive first degree murder
    by way of forcible confinement with the jury, or in her instruction to the jury
    on this route of liability?

(1)

Background

[144]

The Crowns theory at
    trial was that the appellant murdered Mr. Zalal due to a dispute over a firearm
    that Mr. Zalal had loaned him. According to the Crown, the appellant arranged
    to have Mr. Zalal picked up under the pretence that he would have his firearm
    returned to him. After the appellant and his friends picked up Mr. Zalal, the
    appellant shot him in the back of the head and had his body left in a field.

[145]

At the close of the
    Crowns case, the appellant brought a motion for a directed verdict, arguing
    that the trial judge should remove first degree murder as a viable route of
    liability. He argued that there was insufficient evidence that the murder was
    planned and deliberate or committed during a kidnapping.

[146]

The trial judge denied
    the application. She found that the circumstantial evidence, including the
    evidence demonstrating the existence of the firearm dispute and showing that Mr.
    Zalal was with the appellant and his friends on August 18, 2006, satisfied her
    that first degree murder should be left to the jury.

[147]

In her charge, the
    trial judge thus instructed the jury on two routes of liability for first degree
    murder: by planning and deliberation, pursuant to s. 231(2) of the
Criminal
    Code
, and by way of forcible confinement, pursuant to s. 231(5)(e) of the
Criminal
    Code
. In doing so, the trial judge outlined for the jury the elements the
    Crown had to prove beyond a reasonable doubt to establish constructive first
    degree murder.

(2)

Governing Principles

[148]

When counsel for an
    accused applies for a directed verdict at the end of the Crowns case, the
    trial judge must decide whether there is some evidence on the basis of which a
    reasonable jury, properly instructed, could return a verdict of guilty for the
    offence in question:
Hayes
, at para. 65;
R. v. Tomlinson
,
    2014 ONCA 158, 307 C.C.C. (3d) 36, at para. 151.

[149]

For a trial judge to
    make this finding, the Crown must adduce evidence on every essential element of
    the offence for which the Crown has the evidential burden:
Hayes
, at
    para. 65;
Tomlinson
, at para. 151. If the Crowns case is
    circumstantial, as was the case here, the trial judge must engage in a limited
    weighing of the evidence to determine whether it is reasonably capable of
    supporting the inferences the Crown seeks to have the jury draw:
Hayes
,
    at para. 65;
Tomlinson
, at paras. 153-154.

[150]

The ultimate test for
    leaving a route of liability with the jury is whether the evidence, if
    believed, could reasonably support an inference of guilt:
Hayes
, at
    para. 65;
Tomlinson
, at para. 154.

[151]

A decision to leave a
    route of liability with the jury is to be reviewed on a standard of
    correctness:
Hayes
, at para. 65;
Tomlinson
, at para. 155.

[152]

In
R. v.

McGregor
,

2019 ONCA 307, 145 O.R. (3d) 641, this court described the five essential
    elements of constructive first degree murder under s. 231(5)(e), at para. 60.
    They are reproduced below, with slight modifications:

1) that the accused committed or attempted to
    commit kidnapping or unlawful confinement, contrary to ss. 279(1) and
    279(2) of the
Criminal Code
;

2) that the accused murdered the victim;

3) that the accused participated in the murder
    in such a manner that they were a substantial cause of the victims death;

4) that no intervening act by somebody else
    resulted in the accused no longer being substantially connected to the victims
    death; and

5) that the kidnapping and the murder were
    part of the same transaction.

(3)

Arguments on Appeal

[153]

The appellant argues
    that the trial judge erred in leaving constructive first degree murder with the
    jury. There was no evidentiary basis on which the jury, properly instructed,
    could have concluded that Mr. Zalal was kidnapped for any reason other than as
    part of a plan to kill him. Planned and deliberate murder should thus have been
    the only route of liability put to the jury.

[154]

The appellant also
    argues that, even if such an evidentiary basis did exist, the trial judge erred
    in her instruction by failing to explain how the jury could reject planning and
    deliberation but accept murder by way of kidnapping and forcible confinement.
    According to the appellant, the trial judges error is the same as the one
    identified by Brown J.A. in
R. v. Saleh
, 2019 ONCA 819, 380 C.C.C.
    (3d) 445, at para. 163:

The instructions did not provide any guidance to
    the jury about how they could have a reasonable doubt that the murder for which
    Saleh was responsible at law was a planned and deliberate one  with kidnapping
    forming a key part of the plan  but was one caused by Saleh while committing
    the predicate offence of kidnapping.

[155]

In response, the Crown
    argues that the trial judge did not err. The evidence supported the inference
    that the appellant had planned to kidnap Mr. Zalal for a purpose other than
    murdering him (for example, to intimidate him), but subsequently decided to
    murder him. The Crown also argues that the instruction properly equipped the
    jury to consider the evidence.

(4)

The Principles Applied

[156]

My conclusions on this
    issue are as follows.

[157]

First, I disagree with
    the appellant that trial judge lacked the sufficient evidentiary basis
    necessary to leave constructive first degree murder with the jury.

[158]

Second, I agree with
    the appellant that the trial judge failed to explain to the jury how they could
    reject planning and deliberation as a route to first degree murder, but still
    find that the appellant is guilty of first degree murder by way of constructive
    murder. However, for the reasons that follow, I am of the view that this error did
    not cause a substantial wrong or miscarriage of justice.

(a)

There Was Sufficient Evidence to Leave Constructive First Degree Murder
    With the Jury

[159]

On appeal, the
    appellant does not contest the trial judges charge to the jury with respect to
    the planning and deliberation route to first degree murder. The issue alleged
    is in the trial judge also leaving an alternative route to liability for first degree
    murder by way of constructive murder, pursuant to s. 231(5)(e) of the
Criminal
    Code
.

[160]

I disagree with the
    appellant on this issue. In my view, there was ample circumstantial evidence
    which justified the trial judge leaving constructive first degree murder with
    the jury. This evidence included:

·

The evidence that the appellant and the
    deceased did not get along:
First, there was
    evidence that in the spring of 2006, Mr. Zalal was angered that the appellant
    test fired, without his permission, a gun that they had purchased together. Mr.
    Zalal called this a bitch move. Second, there was evidence that on August 18,
    2006, Mr. Zalal was again with the appellant when he refused to return a gun
    that he had borrowed while Mr. Zalal was in prison. Mr. Zalal was
    overheard yelling at the appellant on the phone, at which time he called the
    appellant a bitch.

·

The evidence that the deceased was with
    the appellants associates on the day he was murdered:
There was evidence that on August 18, 2006, the deceased told his
    close friend that he was with a driver named Moe or Moo (Moe was a
    nickname for the appellants friend and subsequent co-accused, Mr. Kayem) on
    his way to get his gun back. Mr. Zalal used Mr. Kayems cell phone to
    carry out this conversation. This was the last contact the deceased had with
    his friend.

·

The evidence that neither Mr. Kayem nor
    Mr. Abdul-Hussein had any motive to harm the deceased:
The evidence disclosed no motive by the appellants associates to
    harm the deceased. Further, the appellants associates were not well known to
    the deceased. The appellant was the only one who had a motive to harm the
    deceased, grounded in the evidence.

·

The evidence allegedly demonstrating the
    appellants plan to separate the deceased from his friends:
the evidence from the cell phone records showed a series of
    intertwined calls from the appellant to Mr. Kayem. Under the Crowns theory,
    the appellant made these calls to orchestrate the pick-up of the deceased by
    Mr. Kayem and Mr. Abdul-Hussein.

[161]

The trial judge
    reviewed this relevant circumstantial evidence. In my view, it could ground an inference
    that the appellant had lured Mr. Zalal to a location under the pretence of
    having his firearm returned to him. If the jury had doubt that the appellant
    had planned to kill Mr. Zalal, they could find that the appellant had kidnapped
    him for the alternate purpose of intimidating him, but instead decided to
    murder him during the kidnapping, per the Crowns alternate theory. Accordingly,
    I conclude that there was a sufficient evidentiary basis for the trial judge to
    leave constructive first degree murder with the jury.

(b)

The Jury Charge was Insufficient, but this Error can be Cured by the
    Curative Proviso

[162]

I would also dismiss
    the appellants second argument, namely that the trial judge in her charge erred
    in a manner identical to what justified the ordering of a new trial in
Saleh
.
    In my view,
Saleh
is distinguishable. While the trial judge did err in
    her jury charge, a functional assessment of the charge demonstrates that this
    error does not warrant appellate intervention.

[163]

In
Saleh
,
    Brown J.A. found that the Crowns case had rested on demonstrating Salehs
    participation in a planned and deliberate murder: at para. 198. In
    earlier written submissions, Crown counsel took the position that this is a
    planned and deliberate first degree or nothing: at para. 146. However, the
    trial judge added two other routes of liability during the course of the
    pre-charge conference. One additional route was constructive murder premised on
    kidnapping. In the Crowns brief closing submissions on this path to first
    degree murder, Crown counsel did not offer the jury a reason for a kidnapping
    other than to kill the deceased: at para. 159. Brown J.A.s finding meant
    that, when viewed in context, the error was serious: at para. 198. The
    trial judge had increased the number of routes of liability with paths not
    requested by the parties at the start of the pre-charge conference, and without
    properly equipping the jury with the tools necessary to understand them: at
    paras. 168, 198.

[164]

In this case, the
    Crowns case was predicated on both theories of liability. The Crowns
    submissions would have therefore aided the jury in understanding how they could
    reject planning and deliberation, yet accept the Crowns kidnapping theory. In
    this respect, I reproduce the relevant portions of the Crowns closing address,
    where Crown counsel stated the following:

Theres another way of first degree murder,
    and that would involve a last minute shooting with the intent to kill by Nawaf
    Al-Enzi,
but if you had some doubt that he actually
    intended to kill him until he got him into the car, but that he thought he was
    going to intimidate him, or rough him up, or let him know that Nawaf was boss
    but maybe let him live, and then decide at the last minute, Im going to shoot
    him, once he gets him into the car, lured him away by fraud in order to do
    some harm to him, and then kidnapped by fraud
 so, kidnapping can
    happen by force, as we all  thats what we usually think of, but kidnapping
    can happen by a lure or a fraud as well, thats another way to kidnap someone.



So, if Nawaf  if you find that Nawaf suckered
    Mohamed Zalal into that ride, why else is he separating him from his friends
    but that he has some evil intent, but if youre not satisfied that he had
    formed the intent to kill until the last minute thats still first degree.
Where he had the intent to kidnap, to lure into the car by
    fraud to get him away from his friends so he could threaten, menace,
    intimidate, harm in some lesser degree than murder, and then decide at the last
    minute to convert it into murder, that is also a route to first degree.


[165]

In this context, while
    the trial judge erred in failing to explain to the jury how to differentiate
    between the two routes of liability, this error was minor and can properly be saved
    under the curative proviso in s. 686(1)(b)(iii) of the
Criminal Code
:
R.
    v. Nguyen
, 2015 ONCA 278, 125 O.R. (3d) 321, at paras. 160-162, 164,
per
Weiler J.A. (concurring), leave to appeal refused, [2015] S.C.C.A. No. 365.

[166]

In my view, no
    substantial wrong or miscarriage of justice occurred here. The jury would have
    understood that they could only find the appellant guilty of constructive first
    degree murder if they did not accept that the murder had been planned and
    deliberate, yet accepted that the appellant had kidnapped Mr. Zalal for another
    purpose and changed his mind during the kidnapping. The Crowns closing
    submissions identified the relevant potential scenarios and explained to the
    jury how they could reach a verdict of constructive first degree murder. I note
    that the Crowns submissions on this point resemble Brown J.A.s hypothetical
    instruction in
Saleh
, at paras. 161 and 164.

[167]

Accordingly, I would
    dismiss this ground of appeal.


V.

Did the trial judge err in finding that the communications
    between the appellant and his wife, made while they were still married, were
    not protected by spousal privilege?

(1)

Background

[168]

On August 9, 2007, the
    police sought a judicial authorization under ss. 185 and 186 of the
Criminal
    Code
. They wished to intercept the private communications of the appellant,
    Mr. Kayem, and Mr. Abdul-Hussein, on the basis that they were involved in the
    murder of Mr. Zalal.

[169]

The first authorization
    was granted on August 10, 2007, and five subsequent authorizations were granted
    over the course of the investigation.

[170]

Between August 13, 2007 and June 17, 2008, the police intercepted 33
    private communications between the appellant and his then wife, Zeinab Abdul-Hussein.
    The appellant and Ms. Abdul-Hussein divorced following the appellants first
    conviction.

[171]

As described above, many of these conversations can be seen as
    evidence of the appellant attempting to prevent Mr. Kayem (or Auntie) from
    returning to Canada.

[172]

The Crown sought to introduce these conversations as evidence. They
    argued that, while the communications occurred while the appellant and Ms. Abdul-Hussein
    were married, any spousal privilege that may have attached to those
    communications was no longer in effect, as the appellant and his former wife were
    now divorced.

[173]

The appellant disagreed, arguing that spousal privilege still
    attached to the communications. He suggested that the operation of spousal
    privilege was dictated by the nature of the relationship at the time of the
    communication, instead of the relationship status at the time the privilege is
    claimed. As the communications had occurred during the marriage, the privilege
    was still operative.

[174]

The trial judge agreed with the Crown, holding that spousal
    privilege does not survive divorce. In reaching this conclusion, she noted
    that, while the issue has not been definitively addressed, it is clear from
    the jurisprudence that the legislative purpose of the spousal privilege is
    intended to ensure that marital harmony is preserved. To extend spousal
    privilege to communications between former spouses after divorce would not
    accord with this legislative purpose, as there is no longer any marital harmony
    to protect. Therefore, since the appellant and Ms. Abdul-Hussein were no longer
    married, their communications were not privileged and could be admitted as
    evidence.

[175]

The trial judge also considered whether to exercise her discretion
    to exclude the communications on the basis that the privilege did exist during
    the appellants first trial. However, she concluded that, given that she was
    conducting a new trial on the current state of affairs, it would not be in
    societys interest to restrict the Crown from introducing evidence that is now
    properly admissible.

(2)

Arguments on Appeal

[176]

On appeal, the appellant argues that the trial judge erred in
    finding that spousal privilege does not survive divorce. He argues that,
    contrary to the findings of both the trial judge and Sharpe J. (as he then was)
    in
R. v.

Rendon
, [1997] O.J. No. 5505 (Gen. Div.), the
    conclusion that spousal privilege dissolves upon the dissolution of marriage does
    not accord with the wording of s. 4(3) of the
Canada Evidence Act
.

[177]

In support of this argument, he points to the language in s. 4(3)
    that no husband or wife is compellable to disclose any communication made
during their marriage
 (emphasis added). According to
    the appellant, this phrasing indicates that privilege extends to all
    communications made during the marriage.

[178]

The appellant also argues that, contrary to the conclusion of Sharpe
    J., extending the privilege beyond the period of marriage would promote and
    protect marital harmony. Society has an interest in former spouses maintaining
    harmonious relationships, including for the sake of any children. Further, as
    divorce is commonplace in modern society, the choice not to protect marital
    communications after divorce may undermine marital harmony by discouraging
    honest communication during the marriage.

[179]

Finally, the appellant takes the position that, even if privilege
    does not attach to the communications, the trial judge erred in admitting them
    in light of the fact that the divorce was a direct result of the appellants
    first conviction. Under this argument, the admission of the communications continued
    the miscarriage of justice occasioned by the first trial.

[180]

The Crown makes three arguments in response:

i)

as s. 4(3) requires that the person invoking
    the privilege be a husband or wife at the time of their testimony, the
    provision cannot extend to former or future spouses;

ii)

extending spousal privilege to former spouses
    would not accord with the purposes of the privilege; and

iii)

the trial judge was correct not to exclude the
    communications under her residual discretion.

(3)

Governing Principles

[181]

The parties arguments on spousal privilege focused on section 4(3)
    of the
Canada Evidence Act
, which states:

No husband is compellable to disclose any
    communication made to him by his wife during their marriage, and no wife is
    compellable to disclose any communication made to her by her husband during
    their marriage.

[182]

In
R. v. Couture,
2007 SCC 28, [2007] 2. S.C.R. 517, the
    Supreme Court of Canada described the effect of this privilege at para. 41:

The privilege is testimonial in nature, giving
    a right to withhold evidence but the communications themselves are not
    privileged. The privilege belongs to the spouse receiving the communication and
    can be waived by him or her.

[183]

Two historic rationales for this privilege have survived to this
    day, including: i) the promotion of marital harmony, and; ii) the prevention of
    the indignity of having one spouse testify against another:
Rendon
, at
    para.
46;
R. v. Salituro,
[1991] 3 S.C.R. 654, at
    p. 672;
Couture
, at para. 43;
Nguyen
, at para.
20.

[184]

Of note is how this court has previously held, albeit in a different
    context, that spousal privilege does not extend to common-law spouses:
R.
    v. Nero
, 2016 ONCA 160, 334 C.C.C. (3d) 148, at para. 185, leave to appeal
    refused, [2016] S.C.C.A. No. 184;
Nguyen.


[185]

Competency, compellability, and privilege are distinct but related
    concepts.

[186]

Competency refers to a persons legal capacity to give evidence in a
    court of law.

[187]

Compellability refers to the ability to force a witness by subpoena
    to give evidence in court under the threat of contempt proceedings.

[188]

Under the spousal incompetency rule as it existed previously,
    married spouses of accused persons were neither competent nor compellable
    witnesses for the Crown, subject to limited exceptions.

[189]

Privilege is the right of a person or class of persons to exclude
    certain communications from evidence or to refuse to testify about matters
    covered by the privilege. The relevant privilege here is the spousal privilege
    under s. 4(3). This court previously observed that the goals of protecting
    marital harmony and avoiding the natural repugnance resulting from one spouse
    testifying against the other animate the rules governing spousal incompetency
    compellability, and privilege:
Nguyen
, at paras. 10-20.

[190]

The admissibility of lawfully intercepted spousal communications is
    governed by the combined effect of two statutory provisions: s. 4(3) of the
Canada
    Evidence Act
and s. 189(6) of the
Criminal Code
.

[191]

Section 189(6) of the
Criminal Code
states that:

Any information obtained by an interception
    that, but for the interception, would have been privileged remains privileged
    and inadmissible as evidence without the consent of the person enjoying the
    privilege.

[192]

In
Rendon
, Sharpe J. addressed the issue of the combined
    effect of s. 4(3) and s. 189(6). He explained that it is clear that the effect
    of s. 189(6) is to prevent the [C]rown from adducing into evidence
    communications between husband and wife, although lawfully intercepted, if at
    the time of the trial the parties are still married: at para. 38; see also
Nero
,
    at paras. 187-189.

[193]

Sharpe J. went on to consider whether spousal privilege survived the
    dissolution of a marriage, concluding it did not. His reasoning on this issue
    was set out at para. 46:

As a matter of
    principle, it is difficult to see why the privilege should survive the marriage
. The various decisions that have been cited indicate that the
    purposes of the privilege are the promotion of marital harmony and the
    prevention of the indignity of having one spouse testify against another.
Plainly, neither purpose is served once the marriage has been
    dissolved
. There is a clear trend in the case law, signalled in
    particular by the
Salituro
case, to limit the scope of evidential
    disability of spouses. [Emphasis added.]

(4)

The Principles Applied

(a)

Spousal Privilege Under the
Canada
    Evidence Act
Does Not Survive Divorce

[194]

I conclude that spousal testimonial privilege under s. 4(3) of the
Canada
    Evidence Act
does not survive divorce. I reach this conclusion by
    considering the statutory language in its entire context, in its grammatical
    and ordinary sense harmoniously with the scheme of the Act, the object of the
    Act, and the intention of Parliament:
R. v. Gallone
, 2019 ONCA 663,
    147 O.R. (3d) 225, at para. 30, citing Ruth Sullivan,
Sullivan on the
    Construction of Statutes
, 6th ed. (Markham: LexisNexis, 2014), at p. 7. I
    place emphasis on both the plain language of the statute and the policy
    rationale underlying the privilege in reaching this conclusion.

[195]

Accordingly, the intercepted communications between the appellant
    and Ms. Zeinab Abdul-Hussein were not privileged at the time of trial, as
    the two were no longer married. The trial judge did not err on this issue, nor
    in refusing to exercise her gatekeeper function to exclude this otherwise
    admissible evidence.

[196]

The first source of my conclusion on the limitations of spousal
    privilege under s. 4(3) is the language of the statute itself. I reproduce it
    again for emphasis:

No
husband
is
    compellable to disclose any communication made to him by his wife
during their marriage
, and no
wife
is compellable to disclose any communication made to her by her husband
during their marriage
. [Emphasis added.]

[197]

The plain language of this section does not support the appellants
    interpretation that the privilege survives divorce. Section 4(3) makes clear
    that the class of people who are not compellable to disclose marital
    communications are husbands and wives. This is distinct from the language describing
    what constitutes a marital communication, namely communications made during a
    marriage.

[198]

I do not agree with the appellants argument that the language of
    any communication madeduring their marriage exclusively governs the scope of
    the provision, such that the privilege attaches to any communication made
    during the marriage regardless of the marital status of the one claiming the
    privilege. This interpretation would deprive the references to No husband and
    no wife of meaning. Such an interpretation violates the presumption against
    tautology, according to which it is presumed that the legislature avoids
    superfluous or meaningless words. Instead, every word has a specific role to
    play in advancing the legislative purpose:
Canada (National Revenue) v.
    Thompson
, 2016 SCC 21, [2016] 1 S.C.R. 381, at para. 32;
Gallone
,
    at para. 31.

[199]

In my view, there are two relevant requirements in subsection 4(3):
    i) that the
communication
is one that is made
during the marriage
; and ii) that the
person
claiming the privilege is,
at
    the time of the claim
, a
husband or wife
.

[200]

I am also of the view that the appellants interpretation of this
    privilege does not meaningfully promote the relevant policy goals underlying
    the privilege. The appellant argues that extending spousal testimonial
    privilege to divorcees will promote and protect marital harmony. In
Salituro
,
    Iacobucci J. observed that [s]ociety can have no interest in preserving
    marital harmony where spouses are irreconcilably separated because there is no
    marital harmony to be preserved: at pp. 675-76. While it is arguable that
    Iacobucci J.s comments apply to divorcees as well, I will nevertheless consider
    the parties arguments on this point.

[201]

First, I agree with the respondent that extending this privilege to
    divorcees is inconsistent with the scope of communications protected by the
    privilege  namely, those made during the marriage.

[202]

Second, prior judicial treatment of the scope of the spousal incompetency
    rule demonstrates how the policy justification for the rule, as it then
    existed, disappeared in the context of divorced spouses and spouses with no
    reasonable prospect of reconciliation. As noted earlier, the protection of
    martial harmony and the avoidance of the natural repugnance resulting from one
    spouse testifying against another are purposes governing both spousal
    incompetency and privilege:
Nguyen
, at para. 20. In
Sallituro
,
    Iacobucci J. observed, during his analysis of spousal incompetency, that the
    conclusion that a divorced spouse should not be a competent witness because of
    his or her former marital status is contrary to common sense:
Salituro
,
    at p. 677. In his view, the policy justification for the spousal incompetency
    rule disappeared in the context of divorced or irreconcilably separated spouses,
    and he concluded that irreconcilably separated spouses were competent witnesses
    for the prosecution:
Salituro
, at pp. 671 and 677; see also
R. v.
    Nguyen
, 2010 ONSC 5843, 278 C.C.C. (3d) 490, at para. 18, affd 2015 ONCA
    278, 125 O.R. (3d) 321, leave to appeal refused, 2015 S.C.C.A No. 365.

[203]

As the policy goals underlying the spousal incompetency rule were
    said to disappear in the context of divorcees, I consider this relevant in
    determining whether these same policy goals warrant extending spousal privilege
    to that same group.

[204]

Third, I note that even if the privilege was extended to divorced
    spouses, it could still be waived by the recipient of the communication at any
    time. Extending the privilege to divorcees would not meaningfully address the
    risk raised by the appellant, namely that marital harmony will be undermined if
    the privilege did not apply to divorcees, as spouses cannot be certain, should
    they divorce, that their communication will remain confidential. This risk will
    still exist regardless of whether the privilege can be claimed by divorcees, as
    the recipient can always simply waive the privilege.

[205]

While I agree with the appellant that societys interest in
    promoting harmony between spouses may not necessarily end with the dissolution
    of their marriage, I am of the view that extending the privilege to divorcees
    is a legal reform best left to the legislature. I am persuaded by Iacobucci Js
    comments in
Salituro
on this point. I do not consider an
    interpretation of a statute that effectively amounts to a rewriting of it to be
    the kind of incremental change to the law that Iacobucci J. spoke of as
    permissible for courts to undertake:
Salituro
, at p. 670. Nor do I
    think reading into s. 4(3) the phrase divorced spouse is necessary to keep
    the law in step with the dynamic and evolving fabric of our society:
Salituro
,
    at p. 670. This is particularly so, given the arguable legal trend away from
    recognizing spousal privilege at all, or at least not significantly expanding
    its scope:
R. v. Oland
, 2015 NBQB 247, 446 N.B.R. (2d) 317, at para.
    18, affd 2016 NBCA 58, leave to appeal refused, [2016] S.C.C.A. No. 188.

[206]

My conclusion that the policy underlying the privilege does not
    justify the appellants interpretation is strengthened when I consider that
    this privilege does not apply to common-law spouses. The goals governing the
    privilege were insufficient to warrant this court extending the privilege to
    such spouses, who in my view have a greater interest in protecting marital
    harmony and avoiding the repugnance of testifying against one another than
    divorcees:
Nero
, at para. 185. While I acknowledge that these
    determinations were made in different analytical contexts from that in the
    present case, I find these cases helpful in resolving this issue.

[207]

In conclusion, an examination of the language of s. 4(3) and the
    policy goals underlying spousal privilege demonstrate that spousal privilege
    cannot be claimed by an individual where his or her marriage ended by divorce.

(b)

Admitting the Communication Does not Perpetuate the Initial Trials
    Miscarriage of Justice

[208]

I also disagree with the appellants argument that admitting the
    appellants communications with his spouse would perpetuate the miscarriage of
    justice occasioned by the first trial.

[209]

As I understand the appellants position, he argues that: i) at the
    time of his first trial, he was married to his spouse; ii) his subsequent divorce
    was a direct result of his original overturned conviction; iii) a new trial was
    ordered as a result of a miscarriage of justice; iv) and, at the time of this
    new trial, the appellant was no longer married and the communications became
    admissible. Since this admissibility is only possible because there was an
    initial miscarriage of justice and the subsequent ordering of a new trial, to
    admit the evidence would perpetuate the miscarriage.

[210]

I do not agree. The reasoning inherent to this argument is strained,
    and in any event the appellant adduced no evidence before the trial judge to
    demonstrate a causal connection between the appellants first conviction and
    his subsequent divorce. Given the centrality of such a causal connection to the
    appellants reasoning on this issue, I cannot accept the argument. The trial
    judge did not err by refusing to exclude the communications on the basis of
    this unproven assumption.

[211]

In conclusion, the trial judge did not err in her interpretation of
    section 4(3) of the
Canada Evidence Act
, nor in refusing to exercise
    her discretion to exclude the communications. I would dismiss this ground of
    appeal.

VI.

Did the trial judge err in dismissing the appellants challenge to
    the lawfulness of the intercepts?

(1)

Background

[212]

On July 20, 2007, the police completed DNA analysis on two cigarette
    butts found at the scene where Mr. Zalals body was discovered. The analysis
    confirmed that the deceaseds DNA was present on one of the cigarette butts,
    and that Mr. Kayems was on the other. This evidence led police to believe
    that Mr. Kayem had been present when Mr. Zalals body was dumped. The police
    then sought authorization to intercept the communications of the appellant, Mr.
    Kayem, and Mr. Abdul-Hussein, all of whom police believed were involved in
    the murder.

[213]

On August 9, 2007, Sergeant Bruce Pirt swore an affidavit in support
    of a wiretap under ss. 185 and 186 of the
Criminal Code
. The
    Information to Obtain (ITO) provided information on the cell phone evidence,
    cell tower evidence, and summaries of interviews with Mr. Khaleyi and Shadra
    Morales. However, not all of the interviews with Mr. Khaleyi were described.

[214]

The authorization was provided on August 10, 2007. Following this
    initial authorization, five additional wiretaps were authorized on October 12,
    2007, December 21, 2007, February 15, 2008, March 18, 2008, and April 18, 2008.

[215]

Prior to trial, the Crown sought to introduce transcripts and
    recordings of 104 private communications that had been intercepted by way of
    the six wiretap authorizations.

[216]

The appellant brought an application for an order: i) declaring the
    authorizations invalid; ii) declaring that the communications had been
    intercepted in violation of the appellants rights under s. 8 of the
Charter
;
    and iii) excluding any direct or derivative evidence obtained as result of the
    authorizations pursuant to s. 24(2) of the
Charter
.

[217]

Among other things, the appellant argued that the wiretap
    authorizations were invalid on the basis that:

i)

the affiant, Sergeant Pirt, did not make full,
    frank, and fair disclosure in the ITO for the first authorization, and the
    following authorizations were therefore tainted. According to the appellant, if
    the issuing justice had been aware of certain inconsistencies in the evidence
    of Mr. Khaleyi, the initial authorization would never have been issued; and

ii)

the requirement of investigative necessity had
    not been established, as other reasonable alternative methods of investigation
    existed, including searching for the murder weapon and searching a possible
    location of the shooting. As the intercepts were unlawful, the appellant argued
    that his s. 8
Charter
rights had been violated and the evidence should
    be excluded under s. 24(2).

[218]

In response, the Crown argued that, while Sergeant Pirt had failed
    to include some details in the ITO, he was not expected to include every
    detail. And, even if the information had been included, it would not have
    resulted in the authorizations being denied.

[219]

The trial judge ruled that the two conditions precedent to granting
    a wiretap authorization under s. 186(1) of the
Criminal Code
were met.
    Our court has referred to these conditions precedent as the probable cause
    and investigative necessity requirements:
Nero
, at para. 114.

[220]

With respect to the probable cause requirement, the trial judge
    found that it was met given the evidence that a crime had been committed and
    that granting the interception would afford evidence of the offence. In
    reaching this conclusion, the trial judge observed that the affiant had not
    been cross examined and therefore had no opportunity to correct errors or
    address questions relating to the credibility of Mr. Khaleyi or Ms. Morales.

[221]

While the trial judge acknowledged that the affiant made some
    errors, she concluded there was no basis to excise anything in the ITO or to
    find that he was intentionally or grossly negligent.

[222]

The trial judge also found that the investigative necessity
    requirement was met. She found that, while it was possible that the reasonable
    alternative methods of investigation proposed by the appellant may have yielded
    some useful evidence, it was unlikely or unrealistic that those searches would
    solve the murder. The purpose of the wiretaps was to develop a viable
    prosecution of the persons believed to have murdered Mr. Zalal. While other
    techniques would continue, the police were forced to resort to other
    techniques, such as the wiretaps, to develop a proper foundation for any
    effective prosecution of the murder. The authorizing justice therefore had a
    sufficient basis to grant the initial authorization. The trial judge concluded
    that there was no breach of the appellants s. 8 rights.

(2)

Arguments on Appeal

[223]

The appellant argues that the authorization should have been set
    aside on two bases.

[224]

First, the affiant did not make full, frank, and fair disclosure
    regarding the substance of Mr. Khaleyis various police interviews. The
    affiants summary of the witness statements were inaccurate and minimized the
    inconsistencies in his account. The appellant references
R. v. Booth
,
    2019 ONCA 970, at para. 56, to argue that the trial judge should have
    recognized the obligation on the affiant to include all information that
    challenges the reliability and credibility of the evidence used to support the
    application. The affiants errors were not minor or technical and they deprived
    the authorizing justice of the opportunity to properly address the witness
    evidence.

[225]

Second, the trial judge erred in finding that the ITO satisfied the
    requirement for investigative necessity. Before seeking wiretap authorization,
    the police should have investigated the information provided by Mr. Khaleyi
    regarding the location of the murder and the location of the murder weapon. The
    ITO failed to explain why these leads were not followed up on. If the police
    had been able to locate the murder weapon or the location of the murder, they
    may have been able to find evidence that could have advanced the case. These
    were reasonable alternative options that should have been pursued. The
    appellant further submits that the trial judge erred in finding that he had to
    show that these methods were likely to solve the murder; they only needed to be
    likely to advance the investigation.

[226]

The appellant also argues that, if this court holds that the
    appellants statements to the police were not voluntary, the corresponding
    portions of the ITO should be excised and a reassessment should be undertaken.

[227]

Given these errors, the appellant argues that his s. 8 rights were infringed
    and the evidence should be excluded pursuant to s. 24(2) of the
Charter
.
    The affiants conduct was not in good faith and the state conduct was serious.
    The impact on the appellants privacy interests was extreme. Both factors
    favour exclusion.

[228]

The respondent submits that the trial judge did not commit any error
    and that this ground of appeal should be dismissed.

(3)

Governing Principles

[229]

The legal basis for the issuance of a wiretap authorization is set
    out in Section 186(1) of the
Criminal Code
. It states the following:

An authorization under this section may be
    given if the judge to whom the application is made is satisfied

a)

that it would be in the best interests of the administration of
    justice to do so; and

b)

that other investigative procedures have been tried and have failed,
    other investigative procedures are unlikely to succeed or the urgency of the
    matter is such that it would be impractical to carry out the investigation of
    the offence using only other investigative procedures.

[230]

This section was recently considered in
Nero
, where Watt
    J.A. explained that these two sections can be described as the probable cause
    (s. 186(1)(a)) and investigative necessity (s. 186(1)(b)) requirements: at
    para. 114.

[231]

Watt J.A. first described the probable cause requirement, at paras. 115- 117:

The probable cause requirement demands that
    the authorizing judge be satisfied by the supportive affidavit that
there are reasonable and probable grounds to believe that
:

i.

a specified crime
, and offence as defined in s. 183(1) of the
Criminal Code
,
has been or is being committed
; and

ii.

the interception
of the private communication sought
will
    afford evidence of the, or an, offence
for which authorization is
    sought.

The probable cause
    requirement and the capacity of the contents of the supportive affidavit to
    satisfy it involve a commonsense approach
that
    takes into account the nature of the subject-matter investigators seek to
    acquire: future communications, not yet in existence, perhaps not even in
    contemplation at the time the authorization is sought or granted. These
    communications may never take place. But if they do, the likelihood of anything
    said affording evidence of a listed offence is enhanced by their probable
    participation in that offence. It is in that sense that interception of what
    they say will afford evidence of the offences.

It is also important to
    keep in mind that the affidavit is required to establish a
reasonably grounded belief
in the commission of the offence and the
    collection of evidence about it, not proof beyond a reasonable doubt or a
prima facie
case of either
.
    [Italics in original; underlining added; citations omitted.]

[232]

Watt J.A. next considered the investigative necessity requirement,
    at paras. 118-122:

Under s. 186(1)(b),
    investigative necessity may be established where the affidavit demonstrates
    that other investigative procedures are unlikely to succeed
. Interception of private communications is
not
    an investigative tool of last resort
. The second branch of investigative
    necessity is met where,
practically speaking, there is no
    other reasonable alternative method of investigation, in the circumstances of
    the particular criminal inquiry
.

Whether investigative necessity is established
    is
informed by the investigative objectives pursued
by the police.

The investigative necessity requirement of s.
    186(1)(b) applies to the investigation as a whole, not to each individual
    target. The supportive affidavit need not demonstrate investigative necessity
    on an individual target basis.



The requirement of investigative necessity may
    be met where it anticipates the vicissitudes of proof in a criminal trial. An
    investigative purpose or objective may then be to obtain evidence confirmatory
    of information provided by a source whose testimony is not available through no
    fault of or connivance by the authorities, or is subject to special scrutiny. [Italics
    in original; underlining added; internal citations omitted.]

[233]

The test to be applied by a trial judge when reviewing an
    authorization is whether the ITOs contained sufficient reliable evidence that
    might reasonably be believed on the basis of which the authorizing justice
could
have concluded that the conditions precedent required to be established had
    been met:
Nero
, at para. 70 (emphasis in original).

[234]

In conducting the analysis, the reviewing judge is entitled to draw
    reasonable inferences from the contents of the ITO: at para. 71. Inaccuracies
    and omissions in the ITO are not, without more, fatal to the adequacy of the
    material to establish the necessary conditions precedent: at para. 72.

[235]

On appeal, an appellate court must give
    deference to the findings of fact made by the reviewing judge in [his or her]
    assessment of the record, as well as to [his or her] disposition of the s. 8
Charter
challenge. This court should not interfere in the absence of an error of law,
    a misapprehension of material evidence or a failure to consider relevant evidence:
Nero
, at para. 74.

(4)

The Principles Applied

[236]

In my view, the trial judge made no error in law or fact that that
    would warrant this courts interference with her findings. She considered the
    relevant record and concluded that the affiant did not breach his obligation to
    make full, fair, and frank disclosure, and that the ITO satisfied investigative
    necessity. I see no errors in these conclusions.

[237]

First, the trial judge did not err in concluding that the affiant
    met his obligation to make full, fair, and frank disclosure. The trial judge
    specifically noted that the affiant did not fail to supply evidence that was
    germane to a proper assessment of Mr. Khaleyis credibility. The ITO set out relevant
    and pertinent information, such as Mr. Khaleyis age and criminal background, as
    well as his demands for financial benefits, among others. It also highlighted
    Mr. Khaleyis animosity towards the appellant.

[238]

While there were some inconsistencies in Mr. Khaleyis statements, I
    agree with the trial judges assessment of the law that the affiant is not
    required to include every detail.

[239]

Furthermore, the issuing justice did not have to assess whether all
    the information provided by Mr. Khaleyi was true, but only whether the ITO
    established 
a reasonably grounded belief
in the commission of the
    offence and the collection of evidence about it (emphasis added):
Nero
,
    at para. 117.

[240]

I also agree with the trial judge that any errors in the ITO were
    not fatal. The trial judge made specific findings that errors within the
    affidavit were not intentional or the result of gross negligence. This finding
    is entitled to deference. Reviewing justices are not to microscopically review
    the ITO for errors. Instead, they must determine whether the issuing judge
    could have been satisfied that the information in the affidavit made out a
    reasonably grounded belief in the prerequisites for issuance. The trial judge
    did not err in her conclusion on this issue.

[241]

The trial judge was also entitled to conclude that the investigative
    necessity requirement had been met. Wiretap authorizations are not a measure of
    last resort. They can also be used when other investigative methods appear to
    have little chance of success. As noted in
Nero
, the requirement is to
    be interpreted in a practical, common sense fashion with due regard to the
    nature of the investigation and the objectives of the investigators: at para. 110.
    In this case, the trial judge correctly assessed what would be required to
    solve the murder and determined that, while other methods may assist, the
    wiretap was necessary to gather evidence demonstrating who was responsible for
    Mr. Zalals murder.

[242]

This ground of appeal is dismissed. Accordingly, it is not necessary
    for me to analyze s. 24(2) of the
Charter
.

CONCLUSION

[243]

I would dismiss the appeal.

[244]

Given this outcome, it is unnecessary for me to consider the respondents
    ground of appeal with respect to the exclusion of the prior testimony and sworn
    police statement of Mr. Abdul-Hussein.

Released: M.T. February 5, 2021

M.
    Tulloch J.A.

I
    agree. L.B. Roberts J.A.

I
    agree. Thorburn J.A.


