



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stevenson, 2014 ONCA 842

DATE: 20141126

DOCKET: C51209

Doherty, Rouleau and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Stevenson

Appellant

Edward L. Greenspan, Q.C., Michael W. Lacy and Anida
    Chiodo, for the appellant

John McInnes, for the respondent

Heard: June 12, 2014

On appeal from the conviction entered on October 7, 2009
    by Justice Lynn D. Ratushny of the Superior Court of Justice, sitting with a
    jury.

Doherty J.A.:

I.        Overview

[1]

Stefanie Stevenson was murdered at about 7:20 p.m. on December 23, 2006,
    as she left her home on her way to work at the local hospital.  Ms. Stevenson
    was shot once in the head by an assailant who appeared from beside her house as
    she walked the very short distance between her home and her van parked in the
    driveway.  The appellant, Ms. Stevensons estranged husband, was arrested and
    charged with first degree murder about two hours later.

[2]

Identity was the only issue at trial. It was agreed that whoever shot
    Ms. Stevenson was guilty of first degree murder.  The Crowns case was
    circumstantial.  There were no eye witnesses and the murder weapon was never
    recovered.  The appellant did not testify.

[3]

The appellant appeals from conviction. Counsel who were appointed
    pursuant to s. 684 of the
Criminal Code
, R.S.C. 1985, c. C-46,
    diligently advanced several grounds of appeal. The court required oral
    submissions from the Crown on the appellants argument that the trial judge
    wrongly admitted evidence of gunshot residue (GSR) found on the appellants
    hands and clothing and on the argument that the trial judge misdirected the
    jury as to the potential evidentiary value of certain statements the appellant made
    to the police after his arrest. These reasons will address only those issues.

II.       The Evidence

[4]

The evidence can be grouped under six headings:

·

The nature of the shooting

·

Motive

·

Opportunity

·

The appellants attempt to purchase a gun

·

The GSR evidence

·

The appellants statements to the police

A.      The nature of the shooting

[5]

This was not a random shooting. Robbery was not the motive.  The
    evidence supported the inference that the killer lay in wait for Ms. Stevenson
    at the side of her home.  The appellant knew Ms. Stevenson had moved into the
    home some three weeks earlier.  He also knew Ms. Stevensons work schedule
    because he often took their children while Ms. Stevenson was at work.

B.      Motive

[6]

The appellant and Ms. Stevenson had separated about 13 months before the
    murder and were going through a divorce.  There was evidence that the appellant
    believed that Ms. Stevenson had cheated on him during their marriage and that
    he carried a considerable grudge.  He had been convicted of threatening Ms.
    Stevenson in the summer of 2006.

[7]

The appellant and Ms. Stevenson had worked through most of the legal
    matters relating to their divorce and there were no custody disputes.  Ms.
    Stevenson had, however, the day before she was killed, advised the appellant
    that she had rejected his latest offer to settle the outstanding financial
    issues. She told him he would be hearing from her lawyer.  The outstanding
    financial issues involved about $30,000.  The Crown also led evidence that the
    appellant was upset Ms. Stevenson had recently begun to live with another man
    (Mr. Aylesworth) and had stated that he did not want another man raising his
    children.

[8]

The evidence relevant to motive did not, however, point only in one
    direction.  There was evidence that the appellant and Ms. Stevenson were by and
    large getting along, especially when it came to matters involving their
    children.  The discussion in which Ms. Stevenson told the appellant she had
    rejected his latest offer was not acrimonious.  The appellant was involved in
    another relationship and appeared to have moved on.

C.      Opportunity

[9]

The appellant left his sisters home in Mallorytown, a small town near
    Brockville, at about 5:00 p.m. on the day of the murder.  His two young
    daughters remained with the appellants sister at her home.  The appellant
    drove into Brockville to do some Christmas shopping.  Video surveillance placed
    the appellant at various commercial locations between 5:16 p.m. and 6:35 p.m.  At
    6:35 p.m. he was seen on video surveillance at a McDonalds restaurant.  That
    restaurant is located about 20 minutes from Ms. Stevensons home, the scene of
    the murder. Ms. Stevenson was murdered between 7:20 and 7:25 p.m.

[10]

The
    appellant arrived back at his sisters home in Mallorytown at about 8:30 p.m.  It
    takes between 20 and 25 minutes to drive from Ms. Stevensons home to the
    appellants sisters home.

[11]

The
    appellants whereabouts between 6:35 p.m. when he was at McDonalds, and 8:30
    p.m. when he arrived back at his sisters home, are unaccounted for in the
    evidence.  The police questioned the appellant in custody about four hours
    after the shooting.  The appellant insisted he could not recall where he had
    been at the time of the shooting because of the psychological trauma caused by
    his arrest at gunpoint in front of his children.  In subsequent questioning the
    next day and a few days later, the appellant was repeatedly asked to account
    for his whereabouts on the evening of the murder.  He eventually identified two
    stores he had visited in Brockville that evening, but he never did account for
    his whereabouts between 6:35 p.m. and 8:30 p.m.

D.      The appellants attempt to
    purchase a gun

[12]

Shawn
    Sutherland worked in the same factory as the appellant.  Sutherland was in the
    business of selling contraband items such as cigarettes.  Sutherland testified
    that sometime between January and April 2006, many months before the murder,
    the appellant asked him if he could obtain an untraceable gun, which the
    appellant said he wanted to use for target practice.

[13]

Sutherland
    testified that he made some attempts to find a gun for the appellant, including
    speaking with a person named Mark Jones in Cornwall.  Sutherland did not obtain
    a gun for the appellant and the appellant never raised the topic with
    Sutherland after the initial request.  The police interviewed Mark Jones, who
    denied speaking to Sutherland about a gun.

[14]

Sutherland
    was an unsavoury witness with an extensive criminal history including many
    convictions for offences involving dishonesty.  He was also a cocaine addict.  The
    trial judge gave a
Vetrovec
warning in respect of Sutherlands
    evidence.

E.      The GSR evidence

[15]

The
    appellant was arrested outside of his sisters home at about 9:30 p.m., about
    two hours after the murder.  At about 9:52 p.m. the arresting officers wrapped
    the appellants hands in plastic bags to preserve any potential GSR evidence. The
    appellant was taken to the Brockville police station at about 10:24.  His hands
    were still wrapped in the plastic bags.  At 12:35 a.m. on December 24, the
    plastic bags were removed and the appellants hands were daubed for GSR using a
    kit developed by the Centre for Forensic Sciences (CFS).  The appellant was
    also told to remove his clothing and each item was placed in a paper bag for
    later testing.

[16]

Samples
    taken from the appellants hands, his clothing, certain items seized from the
    front seat of his vehicle, and some parts of the vehicle itself were sent to
    the CFS for GSR testing.  The experts at the CFS found two GSR particles on the
    back of the appellants left hand, nine GSR particles on the web of his right
    hand, thirteen GSR particles on the back of his right hand, one GSR particle on
    the right sleeve of the appellants jacket, one GSR particle on the front of
    his pants and one GSR particle on the back of his pants.  No GSR particles were
    found on any of the other items tested.

[17]

Dr.
    Gerard, the Crowns expert, testified that for the purposes of the CFS, a GSR
    particle is defined as a particle containing fused elements of lead, antimony
    and barium.  A particle must contain all three elements before the CFS will
    classify it as a GSR particle. He also testified that GSR particles are
    environmentally persistent and do not degrade or break down easily. GSR is not
    visible to the naked eye.

[18]

Dr.
    Gerard explained that GSR particles are easily transferred by contact or air
    movement.  The presence of GSR particles on any surface, including a persons
    hands, does not assist in identifying how the particles came to be deposited on
    that surface.  He indicated that there were three possible explanations for the
    GSR particles found on the appellants hands and clothing.  The appellant may
    have recently discharged a firearm, or he may have been in close proximity when
    a firearm was discharged, or he may have picked up the GSR particles from another
    surface.  Dr. Gerard could not indicate whether any one of the possibilities
    was more likely than the others.

[19]

The
    defence cross-examined Dr. Gerard at length trying to establish possible
    post-arrest sources of GSR transfer.  Those sources included the hands of the
    arresting officers and the equipment worn by the arresting officers, the
    interior of their police vehicle, the handcuffs placed on the appellant, and
    the bench where the appellant sat at the police station for some time.  While Dr.
    Gerard disagreed with counsel for the appellant as to the likelihood of
    transfer, he agreed that transfer from the various sources identified by the
    defence was a possibility.

[20]

The
    GSR evidence is the subject of the main ground of appeal and will be addressed
    in more detail below.

F.       The appellants statements
    to the police

[21]

The
    Crown led evidence of four statements made by the appellant after his arrest. The
    first was made at 12:04 a.m. on December 24 to Detective Noonan, after Noonan
    had told the appellant he was charged with first degree murder, had the right
    to remain silent and had the right to speak with counsel.  The appellant
    declined to exercise those rights.  He denied killing Ms. Stevenson.

[22]

Noonan
    asked the appellant where he had been the evening of December 23.  The
    appellant told Noonan that he could not remember anything except having guns
    pointed at his head. According to Noonan, the appellant was calm during their
    conversation.

[23]

The
    appellant gave a second statement to the police at 5:30 a.m. on December 24, a
    third statement at 6:13 p.m. on December 24, and a fourth statement on January
    4, 2007. Those statements were lengthy and videotaped. By consent, the
    statements went before the jury in the form of written summaries. Counsel
    agreed that the summaries were accurate.

[24]

The
    appellants mood varied widely during the statements. At times he appeared very
    distraught, unable to control himself and incapable of understanding that Ms.
    Stevenson was dead. At other times he spoke calmly and at still other times he
    appeared defiant and very confrontational with the police.

[25]

During
    the interviews, the appellant repeatedly indicated that he could not recall the
    events of the evening of December 23 because of the traumatic effect of his
    arrest at gunpoint in front of his children. In the course of the interviews,
    the appellant told the police that when the investigators confronted him at his
    sisters home, he believed that they were his neighbour who had come to kill
    him because he had reported the neighbour to the police for growing marijuana
    four years earlier. The appellant stated that by reporting the matter to the
    police he had cost his neighbour about $430,000. He had lived in fear of the
    neighbour ever since.

[26]

The
    appellant eventually identified two stores in Brockville that he had visited in
    the late afternoon and early evening of December 23. He continued to insist
    that he could not provide further details because of the trauma caused by his
    arrest. The appellant never did give the police any account for his whereabouts
    between 6:35 p.m. and 8:30 p.m. on December 23.

[27]

Throughout
    the statements, the appellant denied that he had killed Ms. Stevenson. He
    insisted that they were getting along and working through the matters related
    to their divorce. Although the appellant said he could not recall where he had
    been the evening of December 23, he was adamant that he had not been at Ms.
    Stevensons home or on the street where she lived.

[28]

The
    trial judge concluded that the statements were voluntary. That finding is not
    challenged on appeal. She also concluded that the appellant was advised of his
    right to silence and his right to counsel several times and that he knowingly
    waived those rights when he spoke with the police. Those findings are not
    challenged on appeal. The use the jury could make of the statements is the
    subject of the second ground of appeal.

III.      The grounds of appeal

A.      The admissibility of the GSR
    evidence

[29]

Counsel
    for the appellant advanced three submissions against the admissibility of the
    GSR evidence. In the first submission, they argue that the appellants rights
    under s. 9 and s. 8 of the
Charter
were infringed at the time of his
    arrest and that the results of the GSR testing should have been excluded under
    s. 24(2) of the
Charter
. In the second argument, counsel contend that
    the GSR test results should have been excluded because their potential prejudicial
    effect far exceeded their probative value. The third argument is also premised
    on a prejudicial effect versus probative value analysis, but focuses on the particles
    discovered on the appellants hands and pants that contained only one or two of
    the three elements needed to identify the particle as GSR.

[30]

The
    first two arguments outlined above would, if successful, result in the
    exclusion of all the GSR evidence. The third argument, if successful, would lead
    only to the exclusion of the one or two element particles evidence.

(1)     The
Charter
argument

(i)

The evidence

[31]

Detective
    Buell of the Brockville Police arrived at the murder scene shortly after 7:20
    p.m. on December 23. He spoke to Mr. Aylesworth, Ms. Stevensons boyfriend. Mr.
    Aylesworth had been inside the house when he heard the shot. He ran outside to
    find Ms. Stevenson lying in her van mortally wounded.

[32]

Detective
    Buell questioned Mr. Aylesworth, who he considered to be a suspect. Mr.
    Aylesworth told him that Ms. Stevenson was separated from the appellant and
    that there were ongoing disputes in divorce-related matters. In the course of
    the questioning Detective Buell asked Mr. Aylesworth who he thought could be
    responsible for the murder. Mr. Aylesworth replied that the appellant was a
    possibility. Mr. Aylesworth also told Detective Buell that Mr. and Mrs.
    Stevenson had two young girls and that he believed that they were with the
    appellant.

[33]

Detective
    Buell decided that he should find the appellant. He considered the appellant a
    suspect and he was concerned about the safety of the children. Detective Buell
    testified that he did not have grounds to arrest the appellant based on his
    conversation with Mr. Aylesworth.

[34]

Mr.
    Aylesworth told Detective Buell that the appellant lived in Mallorytown. As
    Detective Buell was receiving additional information from Mr. Aylesworth, he conveyed
    that information to the Brockville police dispatcher. The Brockville police
    dispatcher in turn spoke to the OPP dispatcher who was responsible for
    notifying the OPP who policed the Mallorytown area. The transcripts of the
    conversations between the police and the various dispatchers were filed on
    consent.

[35]

Shortly
    before 8:00 p.m. on December 23, the Brockville police dispatcher told the OPP
    dispatcher that the appellant had shot his wife in the head. Nothing known to
    the Brockville police at that time supported the assertion that the appellant
    had shot his wife in the head. The trial judge described this misinformation as
    a product of a clear communication breakdown that occurred in the course of a
    rapidly developing situation involving police personnel who were not accustomed
    to dealing with a situation like that faced by the Brockville police on the evening
    of December 23.

[36]

At
    about 8:00 p.m. the OPP dispatcher told OPP officers in the Mallorytown area
    that the appellant had shot his wife in the head. From that time forward, the
    OPP searching for the appellant believed that he had been positively identified
    by the Brockville police as Ms. Stevensons killer. They also believed that the
    appellant was probably armed.

[37]

The
    OPP officers eventually received a description of the appellants car and three
    addresses in Mallorytown where he might be found. Based on the information
    received, the OPP officers believed that the appellant had his two children
    with him. Sergeant King, the senior OPP officer involved in the search for and
    eventual arrest of the appellant, testified that he was satisfied that he had
    reasonable grounds to arrest the appellant shortly after 8:00 p.m. when the OPP
    dispatcher conveyed to Sergeant King the information received from the
    Brockville police dispatcher.

[38]

At
    about 9:20 p.m., Sergeant King and Constable Sinclair arrived at the residence
    of the appellants sister. The officers saw what appeared to be the appellants
    Honda parked in the driveway. They went to a neighbours to call for help.

[39]

At
    about 9:30 p.m. King and Sinclair saw a man they believed to be the appellant
    leave his sisters home with two children and walk toward the Honda. The man
    was in fact the appellant. The officers decided that they had to arrest the
    appellant immediately, before he could drive away with his children. The officers
    approached the vehicle on foot under the cover of darkness hoping to surprise
    the appellant. Each was armed with a rifle. The appellant was ordered to the
    ground at gunpoint, handcuffed and searched while on the ground. The children
    were taken back into the residence. The appellant appeared surprised and very upset.
    The children were terrified.

[40]

At
    9:42 p.m. Constable Sinclair advised the appellant that he was under arrest
    for homicide and that he had a right to counsel. Constable Sinclair used the
    word homicide because he was not certain that the victim was deceased or
    exactly what the charge would be. The appellant seemed confused. Constable
    Sinclair repeated the appellants rights and went so far as to tell the
    appellant that it would be wise for him to speak to a lawyer given the
    seriousness of the charge and the circumstances. The appellant declined to
    speak to counsel, saying I havent done anything wrong, I dont need a lawyer.
    Constable Sinclair told him that he could speak to a lawyer at any time if he
    changed his mind. The appellant indicated that he understood. He repeatedly
    expressed concern about his children.

[41]

The
    appellant was pulled to his feet by the officers and remained handcuffed either
    in or beside the police cruiser awaiting the arrival of the Brockville police.  At
    9:52 p.m., the police wrapped the appellants hands in plastic bags obtained
    from a neighbour.  The bags were placed over the appellants hands in
    anticipation of testing his hands for GSR.

[42]

Detective
    Noonan of the Brockville police, one of the lead investigators, arrived at the
    sisters home at 10:08 p.m.  The appellant was sitting handcuffed in the back
    of the OPP cruiser.  Detective Noonan went directly into the residence and
    spoke to the appellants mother and sisters.  They advised him that the
    appellant had left his daughters at the residence at about 4:40 p.m. and gone
    into Brockville to do some Christmas shopping.  He had returned about 8:20 p.m.

[43]

At
    10:24 p.m., Detective Noonan asked the OPP to transport the appellant to the
    Brockville police station for booking.  Noonan believed that he had reasonable
    and probable grounds to continue the appellants arrest.

[44]

Detective
    Noonans reasonable and probable grounds to arrest the appellant as of 10:24
    consisted of the following:

·

The circumstances of the shooting suggested to him a targeted
    killing.

·

The appellant and the victim were going through a somewhat
    contentious divorce.

·

The appellant was on probation for threatening the victim.

·

The victims boyfriend had identified the appellant as a
    possibility when asked if he could think of anyone who might want to kill the
    victim.

·

The appellant had the opportunity to commit the offence as,
    according to his mother and sisters, he was in Brockville at the relevant time.

·

A witness had seen a dark-coloured Honda Civic leaving the area
    of the shooting.  The appellant drove a red Honda. The same witness reported
    the driver as possibly having blond hair.  The appellant had strawberry-blond
    hair.

·

About a year earlier the police found marijuana plants growing on
    the appellants farm.  The plants were removed, and the appellant was not
    charged. Detective Noonan, who had experience in drug investigations, testified
    that in his experience, marijuana growers sometimes used firearms for
    protection.
[1]

[45]

The
    appellant arrived at the Brockville police station at 10:43 p.m.  At 12:04 a.m.
    on December 24, Detective Noonan told the appellant he was under arrest for
    first degree murder and advised him of his right to remain silent and his right
    to counsel.  The appellant replied are you telling me shes dead. Detective Noonan
    confirmed that Ms. Stevenson was dead.  The appellant was calm.  He indicated
    that he understood his rights and did not wish to contact counsel.

[46]

At
    12:35 a.m. samples were taken for GSR testing from the appellants hands.  His
    clothing and other assorted articles were seized and packaged for testing.  The
    samples and the seized material were eventually tested for GSR at the CFS.  The
    test results were adduced in evidence by the Crown and are summarized above
    (para. 16).

(ii)

The
    arguments

[47]

Counsel
    for the appellant submit that the appellants arrest, which was based on the
    misinformation provided to the OPP by the Brockville police dispatcher was
    unlawful and resulted in an arbitrary detention contrary to s. 9 of the
Charter
.
     Counsel further argue that the steps taken by the OPP officers incidental to
    the unlawful arrest, including the bagging of the appellants hands in
    anticipation of GSR testing, violated s. 8 of the
Charter
.  Finally
    counsel contend that the connection between these
Charter
violations
    and the eventual obtaining of the GSR test results is sufficient to engage s.
    24(2) of the
Charter
and that those results should have been excluded
    from evidence under s. 24(2).

[48]

The
    Crown, without expressly conceding the unlawfulness of the arrest, argues that
    if the arrest was unlawful, it was not arbitrary in the circumstances.  The
    Crown contends that the police had grounds to detain the appellant for
    investigative purposes at the time of the arrest, and had grounds to arrest the
    appellant within an hour of his initial detention.  The Crown refers to any breach
    of s. 9 of the
Charter
as technical in nature and argues that the
    search that eventually produced the material sent to the CFS for testing
    occurred at a time when the police had ample grounds to satisfy the criteria
    for a lawful arrest.  Lastly, Crown counsel submits that on the three-pronged
    test developed in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, the
    results of the GSR testing should not be excluded even if the police violated
    the appellants rights under s. 9 and s. 8 of the
Charter
.

[49]

The
    trial judge held that the arrest, based on the misinformation provided to the
    OPP by the Brockville dispatcher, was unlawful but not arbitrary because the
    OPP had acted in good faith in relying on the misinformation.  The trial judge
    further found that the police conduct that eventually produced the samples and
    other materials sent to the CFS for testing occurred after the police had
    reasonable grounds to arrest the appellant and was a lawful incident of that
    arrest.  There was therefore no s. 8 violation that could potentially affect
    the admissibility of the results.

(iii)    Was the appellant
    arbitrarily detained?

[50]

An
    arrest without warrant is lawful if the police have reasonable grounds to
    believe that the person arrested has committed an indictable offence:
Criminal
    Code
,
s. 495(1).  The
    police must believe that reasonable grounds exist (the subjective requirement)
    and that belief must be based on information that would lead a reasonable
    person in the position of the police to conclude that reasonable grounds
    existed for the arrest (the objective requirement):
R. v. Storrey
,
    [1990] 1 S.C.R. 241 at pp. 250-1.

[51]

The
    OPP officers arrested the appellant based on the information provided by the
    Brockville police dispatcher.  They were justified in doing so. However, the
    OPP officers were assisting the Brockville police who were investigating the murder.
     The OPP officers involved in the appellants arrest did not make an
    independent assessment of the information provided to them by the Brockville
    dispatcher.  In circumstances where one officer, or one police force, acts on
    the direction of another, the question of whether reasonable grounds for an
    arrest exist is answered by reference to the information available to the
    officer or police force giving the direction.  Here, the adequacy of the
    grounds for the arrest of the appellant must be assessed by reference to the
    information available to the Brockville police: see
R. v. Debot
,
    [1989] 2 S.C.R. 1140 at pp. 1166-67.

[52]

At
    the time of the arrest, the Brockville police did not have reasonable grounds
    to arrest the appellant.  Sergeant Buell testified that he regarded the
    appellant as a suspect after he spoke to Mr. Aylesworth, but did not believe
    that he had grounds to arrest him.

[53]

The
    first indication that a Brockville police investigator had reasonable grounds
    to arrest the appellant comes from the testimony of Detective Noonan.  He
    testified that as of 10:24 p.m., after he had spoken to the appellants family,
    he had reasonable grounds to arrest the appellant. Without accepting that all
    of the factors referred to by Detective Noonan could support reasonable grounds
    for an arrest, I am satisfied that in the totality of the circumstances, he did
    have reasonable grounds.  Although counsel for the appellant argued in their factum
    that reasonable grounds for arrest did not exist even at 10:24 p.m., they did
    not press that issue in oral argument. However, by the time Detective Noonan
    had those reasonable grounds, the appellant had been under arrest for almost an
    hour.

[54]

At
    trial, the Crown conceded that the appellants arrest was unlawful but argued
    that it was not arbitrary as the OPP officers had acted in good faith and
    reasonably, based on the information provided to them.  In accepting that
    argument, the trial judge did not have the benefit of the Supreme Court of
    Canadas reasons in
Grant
.  In
Grant
, the court, applying the
    approach developed in the context of a reasonableness assessment under s. 8 of
    the
Charter
to s. 9, held, at para. 54:

Section 9 serves to protect individual liberty against unlawful
    state interference. A lawful detention is not arbitrary within the meaning of
s. 9
(
Mann
,

at para. 20), unless the law authorizing the detention is itself arbitrary.
Conversely, a detention not authorized by law is arbitrary and violates
s. 9
. [Emphasis
    added.]

[55]

The
    arrest of the appellant was unlawful in that it was not authorized by s. 495(1)
    of the
Criminal Code
or by any other law.  The Crown argues, however, that
    even if the arrest was unlawful, it was not arbitrary because the OPP, on the
    true state of affairs known to the Brockville police, could have detained the
    appellant both for investigative purposes and to ensure the safety of the
    children.  The Crown submits that because the police had authority to detain, the
    detention pursuant to the arrest was not arbitrary.

[56]

Whatever
    lawful police power, apart from the arrest power, the police may have had to
    detain the appellant, they did not purport to exercise any such power.  The
    police arrested the appellant.  The police conduct at and after the gunpoint
    encounter with the appellant, is only consistent with a full arrest.  The
    arbitrariness of the appellants detention must be determined having regard to
    the police power actually exercised and not by reference to some other police
    power which may have been, but was not, exercised:
R. v. Whitaker
, 2008
    BCCA 174, [2008] B.C.J. No. 725 at para. 65, leave to appeal to S.C.C. refused,
    [2008] S.C.C.A. No. 296;
R. v. Dhillon
, 2012 BCCA 254, 291 C.C.C. (3d)
    93, at para. 40.

[57]

Like
    the trial judge, I think the arrest was unlawful. It follows from
Grant
that the detention was arbitrary: see also
R. v. Loewen
, [2011] 2
    S.C.R. 167 at para. 3.  The
bona fides
of the OPP officers who made
    the arrest and the existence of grounds to detain the appellant for
    investigative purposes and to ensure the safety of the children do not alter
    the arbitrariness of the detention, although they are relevant to whether
    evidence obtained as a result of the arbitrary detention should be excluded
    under s. 24(2) of the
Charter
.

(iv)    Was there a s. 8 breach?

[58]

The
    OPP officers who arrested the appellant searched his pockets immediately upon
    arresting him.  About 20 minutes later they placed plastic bags over his hands
    to preserve any potential GSR evidence.  In the circumstances presented in this
    case, the search of the appellants pockets and the bagging of his hands for
    GSR testing would have been justifiable as incidental to the appellants
    arrest, if that arrest had been lawful:
R. v. Stillman
, [1997] 1
    S.C.R. 607, at para. 27;
R. v. Backhouse
(2005), 194 C.C.C. (3d) 1
    (Ont. C.A.), at paras. 90, 139-45.  As the arrest by the OPP was unlawful
    however, it cannot provide justification for any search of the appellant.

[59]

Whether
    the police could have searched the appellants pockets for weapons and bagged
    his hands, to preserve evidence, had they detained the appellant for
    investigative purposes, does not arise on the facts of this case.  As indicated
    above, the police arrested the appellant.  The arrest cannot be converted to an
    investigative detention for the purposes of determining the constitutionality
    of the police conduct.
[2]

[60]

Crown
    counsel submitted that the trial judge correctly held that the bagging of the
    appellants hands was not a search or seizure and did not therefore implicate
    s. 8 of the
Charter
.  On the trial judges analysis, the search or
    seizure occurred when the samples were taken and the various items of clothing were
    seized from the appellant at about 12:35 a.m. on December 24.  Those events
    occurred after the police had reasonable grounds to arrest the appellant and
    could be justified as an incident of that arrest.

[61]

It
    is somewhat artificial to describe the bagging of the appellants hands as a
    search or seizure.  The bagging is more accurately characterized as a step
    taken in preparation of an anticipated search or seizure.  In the usual case,
    when the anticipated search or seizure follows upon the preparatory steps
    without any intervening compliance with the
Charter
,
the entirety of the search-related
    conduct can be considered part of the s. 8 violation. In this case, however, a
    lawful arrest intervened between the step preparatory to the search, the
    bagging of the appellants hands, and the actual search, the taking of the
    samples and seizure of the clothing.  In this unusual circumstance, it
    therefore becomes necessary to draw a distinction between steps in preparation
    of a search and the search.  I think the appellant can be afforded the full
    protection of the
Charter
without stretching the normal meaning of the
    words search or seizure to include the bagging of the appellants hands.

[62]

The
    appellant was arbitrarily detained.  The police could not rely on that
    detention to justify any further restraint on or restriction of the appellant.  The
    bagging of his hands to preserve potential evidence can be seen as an additional
    restricting feature of the arbitrary detention that further compromised the
    appellants liberty and security interests protected by the right against
    arbitrary detention.  Arguably the bagging could also be seen as a distinct
    violation of the appellants s. 7 rights: see
Stillman
, at para. 51;
R.
    v. Beare
(1987)
, [1988] 2
    S.C.R. 387;
R. v. Feeney
, [1997] 2 S.C.R. 13 at para. 60.  Either way,
    it can be factored into the s. 24(2) calculus.

(v)     Should the GSR evidence have
    been excluded under s. 24(2) of                         the
Charter
?

[63]

The
    appellant seeks the exclusion of the results of the GSR test done on his
    clothing and hands.  The GSR results are sufficiently temporally connected to
    the arbitrary detention to make the results of the test evidence that was
    obtained in a manner that infringed the appellants
Charter
rights
    even though he was lawfully arrested by the time the samples were taken and the
    clothing seized: see
R. v. Strachan
, [1988] 2 S.C.R. 980 at pp. 1005-6;
R. v. Bartle
, [1994] 3 S.C.R. 173 at pp. 208-9;
R. v. Mian
,
    2014 SCC 54 at para. 83.

[64]

As
    set out in
Grant
,
at
    para. 71, in deciding whether evidence tainted by a
Charter
infringement should be excluded, the court will consider:

·

The seriousness of the
Charter
-infringing state conduct;

·

The impact of the breach on the
Charter
-protected
    interest of the accused;

·

Societys interest in the adjudication of the case on its merits.

[65]

The
    first factor, the seriousness of the
Charter
-infringing state conduct,
    does not favour exclusion of the GSR test results.  The OPP officers who
    arrested the appellant acted reasonably in doing so.  They had no reason to
    doubt the accuracy of the information provided by the Brockville police
    dispatcher.  Based on that information, the OPP officers had genuine safety
    concerns both for themselves and the appellants children and cannot be
    criticized for the manner in which they made the arrest.  Once the arrest was
    made, the arresting officers demonstrated a genuine respect for the appellants
    constitutional rights.  Constable Sinclair went beyond simply telling the
    appellant about his rights to counsel. He all but urged the appellant to speak
    with a lawyer.

[66]

The
    unlawful arrest and hence the arbitrary detention flowed from the
    misinformation provided by the Brockville police dispatcher.  That error, made
    by a police employee only peripherally involved in the investigation, does not
    demonstrate ignorance of
Charter
standards or negligence or wilful
    blindness: see
Grant
,
at para. 75.  On the trial judges finding, which I accept, the error was an
    unfortunate but understandable mistake made by the dispatcher in the course of
    a rapidly developing and somewhat chaotic situation.

[67]

Lastly,
    the bagging of the appellants hands by the OPP officers after his arrest does
    not demonstrate any disregard for the appellants
Charter
rights.  The
    arresting officers honestly and reasonably believed they had grounds to arrest
    the appellant.  They understood that he had shot his wife about two hours
    earlier.  It was reasonable for the police to take steps to preserve potential
    GSR evidence.  The bagging of the appellants hands, while an interference with
    his security of the person, was not done in a way that could cause the
    appellant any undue discomfort or embarrassment.

[68]

Looking
    at the entirety of the police conduct surrounding the arrest and bagging of the
    appellants hands, I find nothing that would compel a court to disassociate
    itself from the conduct of the police by excluding the evidentiary fruit of
    that conduct:
Grant
, at para. 72.

[69]

Turning
    to the second group of factors, the impact of the breach on the appellants
Charter
-protected
    rights, the arbitrary detention had a serious and immediate impact on the
    appellants liberty and his right to security of the person.  The manner in
    which the police made the arrest and the presence of the appellants two small
    children exacerbated the negative impact of the arrest on the appellants
    liberty and security interests.  I would not characterize the detention as
    technical in any sense.  Nor was it momentary.  The appellant was detained
    for some 45 minutes before the Brockville police had reasonable grounds to
    arrest him.

[70]

However,
    the negative impact on the appellants rights is mitigated by the existence of
    legitimate grounds to detain the appellant at the time he was arrested.  Had
    the Brockville dispatcher conveyed the correct information to the OPP, the OPP
    officers would still have searched for and presumably found the appellant at
    the same time and place as they did.  Based on the true state of affairs, the
    OPP officers would have been entitled to detain the appellant at least for the
    purposes of ensuring the safety of the two children and briefly questioning him.
     I am also satisfied that, based on the true state of affairs, the OPP officers
    were entitled to approach the appellants vehicle with guns drawn.  Any further
    steps the police might have been entitled to take as a part of an investigative
    detention would have depended on what developed after the initial detention.

[71]

For
    the sake of assessing the impact of the s. 9 violation on the appellants
    protected rights, I will assume that the OPP officers, as part of an
    investigative detention, would not have been justified in physically forcing
    the appellant to the ground, handcuffing him, placing his hands in plastic
    bags, and holding him for some 45 minutes until the Brockville police decided
    they had reasonable grounds to arrest him.  On those assumptions, the arbitrary
    detention had a significant negative impact on the appellants liberty and
    security interests beyond the impact that would have flowed from an
    investigative detention.

[72]

The
    third factor, the public interest in an adjudication on the merits favours
    admission.  Whatever may be said about the probative value of the GSR test
    results, those results were reliable, and the arbitrary detention did not have
    any possible impact on that reliability.  The exclusion of undeniably reliable
    evidence must have a negative impact on the repute of the administration of
    justice:
Grant
, at para. 81.

[73]

Despite
    the significant intrusion on the appellants liberty and security, the
    appellant has not met the onus of demonstrating that the GSR test results
    should be excluded from evidence under s. 24(2).  The trial judge properly
    admitted the evidence.

(2)     Should the GSR test results have been excluded on a
    probative value/prejudicial effect analysis?

[74]

Evidence
    that is otherwise admissible may be excluded if the trial judge is satisfied
    that its potential prejudicial effect outweighs its potential probative value: D.
    Watt,
Watts Manual of Criminal Evidence
(Toronto: Carswell, 2014), at
    p. 43. The discretion to exclude otherwise admissible evidence finds its
    application to expert opinion evidence as part of the cost/benefit analysis
    performed by trial judges in deciding the admissibility of expert evidence:
R.
    v. Abbey
, 2009 ONCA 624, 246 C.C.C. (3d) 301, at paras. 75-80, 87, leave
    to appeal to S.C.C. refused, [2010] S.C.C.A. No. 125.

[75]

Counsel
    for the appellant do not challenge either the manner in which the GSR testing
    was done or the results of the testing.  They submit, however, that the results
    are unhelpful because Dr. Gerard could not offer any opinion as to how the GSR
    came to be deposited on the appellants hands and pants and therefore could not
    connect the GSR test results to the appellants alleged use of a firearm to
    kill Ms. Stevenson.

[76]

Counsel
    go on to argue that not only could the GSR evidence not advance the Crowns
    case, it presented a real risk of misuse by the jury.  Counsel submit that the
    scientific aura surrounding the examination of the samples created a real risk
    that the jury would move beyond the actual, very limited probative value of
    that evidence and give it a prominence and importance it did not deserve.

[77]

I
    cannot accept counsels submissions.  The GSR evidence was one brick in the
    Crowns evidentiary wall.  Alone, it could not connect the appellant to the
    discharge of a firearm.  Dr. Gerard readily acknowledged the limits of the
    evidence.  However the jury could, after considering the evidence of the
    possibility that the GSR was transferred from another surface and the body of
    evidence implicating the appellant as the killer, conclude that the GSR on the
    appellants hands and clothing was explained by his recent discharge of a
    firearm.

[78]

The
    trial judge carefully explained the nature and limits of the GSR evidence to
    the jury.  She made it clear that the expert could offer no opinion as to how the
    GSR came to be on the appellants hands and clothing. She told the jury:

Dr. Gerard did not hear all the evidence in this case. You have
    heard all the evidence in this case. When you consider all of the evidence, you
    may, or you may not be able to draw rational inferences as to the source of the
    gunshot residue found on Andrew Stevensons hands and clothing.  Dr. Gerard has
    provided you with three possible rational inferences to explain how this
    gunshot residue came to be deposited.  Those possibilities may, or they may
    not, serve to guide you in deciding this case.

[79]

The
    trial judge also outlined to the jury the relevance of the GSR evidence to the
    Crowns theory and to the position of the defence.  She did so fully and fairly.

[80]

I
    also cannot agree that this is the kind of scientific expert opinion evidence that
    could be given exaggerated importance by the jury.  While the technology
    underlying the testing is no doubt complicated and technical, the experts opinion
    was neither.  This was not a case in which the jury was asked to accept an
    experts interpretation of complicated data or phenomena that the jury could
    not observe or comprehend without an experts help.  The presence of the GSR
    was never really contested.  How it got on the appellants hands and clothing
    was beyond the expertise of Dr. Gerard and he made it clear that he offered no
    opinion on that subject.  In my view, the risk of misuse of this evidence was
    not significant.

[81]

In
    oral argument counsel for the appellant referred to
R. v. Gjikokaj
, [2014]
    E.W.C.A. Crim. 386, a recent decision of the England and Wales Court of Appeal
    (Criminal Division).  In that case the Crown expert testified that GSR was
    found in the appellants car.  He went on, as in this case, to indicate that
    there were three possible explanations for the presence of the GSR and that he
    could not offer any opinion as to which was more likely.

[82]

The
    Court of Appeal held that the experts evidence was admissible even though he
    could offer no opinion as to the most likely source of the GSR.  That opinion
    taken with the other circumstantial evidence, could lead the jury to a
    conclusion on the source of the GSR. The court said at para. 43:

The judge was not inviting them [the jury] to reach an
    evaluative opinion where the forensic scientist could not, but inviting them to
    consider this piece of primary forensic evidence as part of the circumstantial
    case.

[3]

[83]

This
    trial judge was doing exactly the same thing with the expert evidence in this
    case.  She presented it as part of the circumstantial picture.  In that context
    it could properly have assisted the jury in determining whether the Crown had
    proved that the appellant was the killer.  The prejudice presented by the
    potential misuse of the evidence was insignificant.  The trial judge did not
    err in admitting the evidence.

(3)     The admissibility of the one or two element particle evidence

[84]

Dr.
    Gerard explained that gunshot residue is derived from the primer cup of a piece
    of ammunition.  The primer cup contains lead, barium, nitrate and antimony
    sulphide.  When the gun is fired, the primer explodes and vaporizes.  Some of
    the lead, barium and antimony particles will escape the firearm through the
    muzzle or any breach in the loading mechanism.  When those particles hit the
    cold air, they condense into small microscopic droplets.

[85]

Dr.
    Gerard explained that when a gun is fired, the particles produced by the
    condensation of the vaporized discharge include particles that contain only
    lead, only barium, only antimony, some combination of the two, or all three.  Dr.
    Gerard further testified that there are many possible sources of one or two
    element particles containing some combination of lead, barium and antimony.  This
    was particularly true with respect to particles containing lead. Because of the
    other potential sources of one and two element particles, the CFS, like most in
    the forensic science community, treats only three particle elements as GSR.

[86]

Over
    the objection of the defence, the Crown was allowed to lead evidence from Dr. Gerard
    identifying the number of one and two element particles on the appellants
    hands, his clothing and the other articles seized at the time of the
    appellants arrest. The number of particles containing one or two of the three
    elements significantly exceeded the number of GSR particles found. For example,
    while 22 GSR particles were found on the appellants right hand, some 350 particles
    containing one or two of the three elements were found on his right hand.

[87]

Counsel
    for the appellant submitted that the evidence of the one and two element
    particles should not have gone before the jury.  They argued that regardless of
    the trial judges instructions, the jury would take evidence of the high number
    of one and two particle element particles found as evidence that they were
    deposited by the discharge of a firearm.

[88]

The
    trial judge acted within her discretion in allowing the Crown to lead the
    evidence of the one and two element particles.  The expert testified that one,
    two and three element particles are deposited after a gun is fired.  Without
    evidence of the existence of the one and two element particles, the jury may
    have wrongly concluded that there were no one or two particle elements
    deposited on the appellants hands and clothing and factored that erroneous conclusion
    into its assessment of the GSR evidence. The trial judge clearly and accurately
    described the effect of the evidence pertaining to the one and two element
    particles and the significance of the experts evidence that only three element
    particles constituted GSR.

B.      The trial
    judges instructions on the appellants statements to the police

[89]

At
    trial, the Crown argued that the appellant lied to the police when he
    repeatedly insisted that he could not remember where he was at the time of the
    murder.  The Crown argued that having regard to the timing of the statements
    and the manner in which the appellant made those statements, the jury could
    infer that the appellant had fabricated his claim that he could not recall
    where he was.  The Crown asked the trial judge to instruct the jury on
    fabrication as circumstantial evidence of guilt.

[90]

The
    defence argued that there was no basis upon which a jury could infer that the
    appellants statements to the police were fabricated.  The defence agreed with
    the trial judges suggestion that a general instruction on post-offence conduct
    would be appropriate.  The trial judge eventually gave that instruction.

[91]

On
    appeal, counsel for the appellant contend that the statements had no potential
    value as circumstantial evidence of guilt and that in any event, the
    instructions on the potential use of the statements were inadequate.  These
    submissions lead back along the well-travelled but difficult path between the
    mere rejection of exculpatory statements made by an accused as untrue and the
    use of fabricated statements as circumstantial evidence of guilt: see
R. v.
    OConnor
(2002)
, 62 O.R.
    (3d) 263 (C.A.).

[92]

The
    identity of the killer was the only issue at trial. An accuseds conduct after
    the homicide, including lies to the police, can have circumstantial value on
    the issue of identity: see, e.g.,
R. v. Polimac
, 2010 ONCA 346, 254
    C.C.C. (3d) 359, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 263.  The
    evidentiary value, if any, of evidence of lies told to the police by an accused
    will depend on the nature of that evidence, the other evidence adduced in the
    case, the inferences reasonably available from that evidence as a matter of
    common sense and human experience, and the relevance of those inferences to the
    live issues at trial: see
R. v. Rodgerson
, 2014 ONCA 366, 309 C.C.C.
    (3d) 535, at paras. 50-54;
R. v. Jones
(2006), 81 O.R. (3d) 481 (C.A.),
    at paras. 5-6.

[93]

In
    my view, if the jury decided that the appellant was lying to the police and
    pretending to be unable to recall where he was at the time of his wifes
    murder, the jury could use that finding to support the inference that the
    appellant had killed his wife.  The appellant first professed an inability to
    recall where he was when his wife was killed only about four and a half hours
    after the murder.  If the jury rejected, as it could have, his explanation for
    his inability to recall, and concluded that he was lying to the police, the
    timing and the subject matter of the lie made an inference of fabrication to
    avoid culpability a legitimate possibility: see
Polimac
, at para. 105.

[94]

Nor
    in my view does the right to silence play any part in the evidentiary analysis.
     Inferences cannot be drawn from an accuseds exercise of his or her right to
    remain silent:
R. v. Turcotte
, 2005 SCC 50, [2005] 2 S.C.R. 519.  The
    appellant did not, however, exercise his right to silence.  He chose, after a
    full and proper caution, to waive that right and to answer the questions posed
    by the police.  He made that choice several times. If he chose to lie to the
    police, using those lies for whatever evidentiary value they might properly
    have does no disservice to an accuseds right to silence.

[95]

I
    turn now to the instructions.  The trial judge dealt with the potential use of
    the appellants statements at some length.  She explained more than once that
    the appellant was under no obligation to speak to the police.  She carefully
    instructed the jury on the manner in which it should assess and use the
    exculpatory portions of the statement.  No objection is taken to that part of
    the instruction.

[96]

The
    trial judge described the potential use of the statements as evidence for the
    Crown in her post-incident conduct instructions.  She explained that the
    appellants post-incident conduct may or may not provide evidence that he had
    committed the murder.  In other words she treated the appellants
    post-incident conduct as circumstantial evidence.

[97]

After
    an instruction on the potential use of the appellants demeanour when the
    statements were taken as post-incident conduct, the trial judge turned to the contents
    of the statements.  Without expressly referencing the appellants professed
    inability to recall where he was at the time of the murder, the trial judge
    reviewed the various exculpatory explanations offered by him for his inability
    to recall where he had been.  The trial judge then told the jury:

You must not use this evidence about what Andrew Stevenson did
    or said in these statements in deciding or helping you decide that Andrew
    Stevenson committed this offence unless you reject any other rational
    explanation for it.

If you do not or cannot find that Andrew Stevenson did or said
    those things because he was conscious of having done what is alleged against
    him, you must not use this evidence in deciding or in helping you decide that
    Andrew Stevenson committed the offence charged.

On the other hand, if you find that what Andrew Stevenson did
    or said in these statements was because he was conscious of having done what is
    alleged against him, you may consider this evidence, together with all the
    other evidence, in reaching your verdict.

[98]

The
    trial judges instruction was given a year before this courts reasons in
R.
    v. Hall
, 2010 ONCA 724, 263 C.C.C. (3d) 5, at paras. 140-146, leave to
    appeal to S.C.C. refused, [2010] S.C.C.A. No. 499.  In
Hall
the court
    criticized language identical to that used in the last two paragraphs quoted
    above.  As explained in
Hall
at para. 145, a trial judge, rather than
    using phrases like consciousness of guilt should explain to the jury how the
    specific post-incident conduct in the particular case can be used to draw
    inferences for or against a fact in issue.  However as in
Hall
, I do
    not think the language resulted in reversible error.

[99]

I
    think it would have been better had the trial judge expressly dealt with the
    inference available should the jury conclude that the appellant had feigned his
    memory loss when speaking to the police.  By addressing the actual evidence and
    the inferences available from it, the trial judge could have avoided using the
    dangerous phrase consciousness of guilt and the risk of the circular
    reasoning identified in
Hall
.

[100]

I think an
    appropriate instruction would proceed along the following lines:

·

The trial judge would begin by telling the jury that it must
    first determine whether the appellant had deliberately lied to the police when
    he said he could not recall where he was at the time of his wifes murder.  If
    the jury was not satisfied that the appellant had deliberately lied, the
    evidence could have no value for the Crown.

·

The trial judge would next instruct the jury that if it was
    satisfied that the appellant was feigning memory loss, the jury should go on
    and consider what inference, if any, it should draw from the feigned memory
    loss.  The jury would be told that the inference that the appellant had lied in
    an attempt to hide his involvement in his wifes death was one, but only one of
    the inferences that might be drawn.

[101]

The trial judge
    would remind the jury that in determining what inference if any should be drawn
    from the appellants feigned memory loss, it must consider the timing of the
    statements, the circumstances in which the statements were made, and any other
    evidence which might inform the rationale for the appellants feigned memory loss.

[102]

The instruction
    outlined above would focus the jurys attention on the primary evidentiary
    question  was the appellant pretending to be unable to remember where he was
    when his wife was killed  and the inference that could, but not necessarily should,
    be drawn from the jurys finding on the primary evidentiary question.

[103]

The approach I
    advocate would not have helped the appellant.  It was certainly open to the
    jury to find that the appellant was pretending to be unable to recall where he was
    at the time of the murder.  This finding was particularly open in respect of
    the first statement made shortly after the murder and at a time when the
    appellant was apparently calm and very much in control of himself.  If the jury
    did conclude that the appellant was feigning memory loss, an express
    instruction that the finding of feigned memory loss could be added to the other
    inculpatory evidence relevant to identity would have bolstered the Crowns case.
     The more generic and somewhat oblique language used by the trial judge
    diminished the potential force of the evidence if the jury found that the
    appellant was indeed feigning memory loss when questioned by the police.  The
    instruction did not prejudice the appellant.

IV. Conclusion

[104]

I would dismiss
    the appeal.

Released: November 26, 2014 (D.D.)

Doherty J.A.

I agree. Paul Rouleau J.A.

I agree. Gloria Epstein J.A.





[1]
The reasons should not be taken as accepting that this fact had any relevance
    to the existence of reasonable grounds.



[2]
The power of the police to search a person detained for investigative purposes
    would appear to be limited to situations in which the police have a reasonably
    based safety concern that renders search of the individual necessary:
R. v. Mann
, 2004 SCC 52, [2004] 3 S.C.R.
    59, at para. 45;
R. v. MacDonald
,
    2014 SCC 3, [2014] 1 S.C.R. 37, at para. 41;
R. v. Greaves
, 2004 BCCA 484
,
    189 C.C.C. (3d) 305, at para. 60-63, leave to appeal to  S.C.C. refused, [2004]
    S.C.C.A. No. 522. The power of the police to take steps short of a search to
    preserve evidence when those steps interfere with the security interests of the
    detained person, does not appear to have been addressed in the case law save in
    the comments of Deschamps J. in dissent in
Mann
at paras. 67-68.



[3]
The court at para. 42, in explaining the relation of the expert evidence to the
    other circumstantial evidence, appears to apply the ultimate burden to
    individual pieces of evidence. That is not the law in Canada: see
R. v. Morin
, [1988] 2 S.C.R. 345.


