



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Hall, 2016 ONCA 13

DATE: 20160108

DOCKET: C58656

Doherty, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jeremy William Hall

Respondent

Amanda Rubaszek, for the appellant

Dirk Derstine and Stephanie DiGiuseppe, for the
    respondent

Heard:  September 17, 2015

On appeal from the acquittals entered by Justice Gerald E.
    Taylor of the Superior Court of Justice at Hamilton, Ontario, sitting without a
    jury, on March 20, 2014.

Doherty J.A.:


I



overview

[1]

The respondent, Jeremy Hall, was charged with two counts of counselling
    murder.  The Crown alleged that Hall attempted to hire Dwayne Utman to kill two
    people who were Crown witnesses against Hall on various firearm-related
    charges.

[2]

In two pretrial rulings, the trial judge excluded a statement made to
    the police by Carol Anne Eaton, the common law spouse of Hall, and certain intercepted
    communications between Hall and Utman.  The trial proceeded with Utman as the
    main Crown witness.  The trial judge acquitted.

[3]

The Crown appeals from the acquittals, alleging that the trial judge
    erred in law by excluding Ms. Eatons statement and the intercepted
    communications.  For the reasons that follow, I would dismiss the appeal.


II



background facts

[4]

A brief overview of the evidence adduced at trial will suffice.

[5]

In May 2009, the respondent pointed a gun at Tony Yaworski and
    threatened him.  Yaworskis friend, Angelo Salciccioli, witnessed the
    incident.

[6]

Hall was arrested and charged with various offences including
    threatening.  Hall contacted Yaworski before the preliminary inquiry and tried
    to persuade him not to testify.  Yaworski testified at the preliminary
    inquiry.  Sometime after the preliminary inquiry, Hall threatened Yaworski.

[7]

Dwayne Utman had known the respondent since childhood.  They had been
    involved together in criminal activity.  Utman was incarcerated in February
    2010 and eventually became Halls cellmate.

[8]

According to Utman, Hall told him that he was charged with threatening a
    person with a .357 magnum handgun and that he would beat the charge if the
    witnesses did not show up at trial.  Over time, Utmans conversations with Hall
    became more serious and more specific.  Hall asked Utman if he would help him
    make sure that the witnesses did not show up for trial.  The respondent spoke
    about killing one of the witnesses and later indicated that both should be
    killed.  He offered Utman $5000. Hall and Utman discussed various ways of
    killing the witnesses.

[9]

Utman testified that he never had any intention of killing anyone. 
    According to his evidence, he went to the police shortly after Hall began to
    discuss murdering the witnesses.  Utman became the eyes and ears of the
    police while he was the respondents cellmate.  He reported the substance of
    his conversations with the respondent to the police.  Some of the conversations
    were intercepted pursuant to a judicial authorization.

[10]

Utman
    continued to work as a police agent after he was released from custody.  He
    spoke to Hall on the phone and on one occasion visited him in jail.  The police
    recorded some of those conversations under the authority of a judicial
    authorization.

[11]

The
    Crown also led evidence that Halls common law wife, Carol Anne Eaton, took the
    police to a storage locker and directed them to two bags containing four operable
    firearms, two rifles and two handguns. One of the handguns was a .357 magnum.

[12]

The
    respondent called a defence but did not testify.

[13]

The
    Crowns case depended almost entirely on Utmans evidence.  Utman was a career
    criminal, a drug addict, an habitual liar and he had significant mental health
    issues.  He stood to gain financially from assisting the police. There was also
    evidence that when Utman contacted the police and told them about Halls
    statements, Utman believed that Hall had tortured and murdered his sister a few
    years earlier.  Her death had been ruled a suicide.  The defence maintained
    that Utmans belief that Hall was involved in his sisters death gave Utman a powerful
    motive to falsely implicate Hall.

[14]

The
    trial judge instructed himself that Utmans evidence must be approached with
    extreme caution.  He reviewed Utmans evidence at length and identified many
    difficulties with that evidence. Ultimately, the trial judge was not prepared
    to convict based on Utmans testimony.


III



A.

the admissibility of carol anne eatons statement

[15]

Carol Anne Eaton is the common law spouse of Mr. Hall.  She met with the
    police at her fathers request on August 25, 2010.  As described above she took
    the police to a storage facility and pointed out two bags containing four
    operable firearms, one of which was a .357 magnum. The police interviewed Ms.
    Eaton the next day.

[16]

Ms.
    Eaton gave two lengthy videotaped statements under oath on August 26, 2010.  One
    of the statements involved the murder of a man named Billy Mason.  Mason,
    himself a career criminal, had been murdered in 2006.  The police suspected
    Hall.  Ms. Eaton told the police that Hall had admitted to murdering Mr.
    Mason.  The second statement related to the charges of counselling the murder
    of Mr. Yaworski and Mr. Salciccioli.  Ms. Eaton told the police that she dug up
    the guns they found in the storage facility on Halls instructions and took
    them to the storage facility.  Hall also told Ms. Eaton that Utman would be
    calling her and that she should give Utman Frank.  Frank was a nickname Hall
    used for one of his guns.  Ms. Eatons statement, if admissible, offered some support
    for Utmans evidence that Hall wanted him to murder the two witnesses.

[17]

The
    Crown tried Hall for the murder of Mr. Mason first. At that trial the Crown
    sought to call Ms. Eaton as a witness.  The trial judge held that s. 15 of the
Charter
required that s. 4 of the
Canada Evidence Act
, R.S.C. 1985, c. C-5 be
    read to include common law spouses, meaning that Ms. Eaton was not a
    compellable witness for the Crown on the murder charge
[1]
:
R. v. Hall
, 2012 ONSC 7084;
R. v. Hall
, 2013 ONSC 834.

[18]

After
    the trial judge at the murder trial ruled that Ms. Eaton was not a compellable
    witness for the prosecution, the Crown, relying on the principled exception to
    the hearsay rule, sought to introduce Ms. Eatons statement to the police for
    the truth of its contents.  The trial judge, applying
R. v. Couture
,
    2007 SCC 28, [2007] 2 S.C.R. 517, held that admitting Ms. Eatons statement
    would effectively thwart the spousal incompetency rule.  The trial judge excluded
    the statement:
R. v. Hall
, 2013 ONSC 1152.
[2]

[19]

At
    the trial of the counselling charges, the Crown chose not to call Ms. Eaton
    as a witness for the prosecution. The Crown conceded, based on the trial
    judges ruling in the murder case, that Ms. Eaton, as a common law spouse, was
    not compellable by the Crown.

[20]

The
    Crown, however, did attempt to introduce Ms. Eatons statement to the police concerning
    Halls involvement in the counselling charges, arguing as it did at the murder
    trial, that the statement was admissible for its truth under the principled
    exception to the hearsay rule. The Crown relied on the non-compellability of
    Ms. Eaton to establish the necessity requirement for the admissibility of her
    statement and submitted that the totality of the circumstances surrounding the
    taking of the statement demonstrated sufficient threshold reliability.

[21]

The
    Crown accepted that, in addition to establishing the preconditions of necessity
    and threshold reliability, the Crown had to demonstrate that the statement was
    admissible under the
ratio
in
Couture
.  The Crown argued that
    the facts of the case were distinguishable from
Couture
and warranted
    a different result.  This was essentially the same argument the Crown had
    unsuccessfully advanced at the murder trial.

[22]

Trial
    counsel agreed that the admissibility of Ms. Eatons statement should be
    approached in two stages.  At the first stage, the trial judge would determine,
    applying
Couture
, whether the statement should be excluded as
    undermining the rationale of the spousal incompetency rule even if it was
    otherwise admissible hearsay.  At the second stage, the court would determine
    whether Ms. Eatons statement was sufficiently reliable to justify its
    admission under the principled exception to the hearsay rule.  The Crown and
    defence agreed that the 
Couture
 issue should be argued and decided before
    addressing the threshold reliability issue.  That issue, which would require an
    evidentiary inquiry, would not be reached if the Crown failed to adequately
    distinguish
Couture
.

[23]

The
    trial judge proceeded as suggested by counsel. He decided that the analysis in 
Couture

    dictated that Ms. Eatons statement should be excluded.  Consequently, he did
    not reach the question of threshold reliability:
R. v. Hall
, 2014 ONSC
    434.  The trial judge said, at para. 12:

In my view, the admissibility of the statement made by Carol
    Anne Eaton which the Crown seeks to introduce as evidence at the trial of
    Jeremy Hall is governed by the decision in
Couture
.  In the present
    case, the statement of Carol Anne Eaton was made during the marriage, just like
    the statement in
Couture
.  Carol Anne Eatons statement was taken
    under oath and generally in accordance with the procedure recommended in
R.
    v. B. (K.)(G.)
, [1991] 1 S.C.R. 740.  From this, I conclude that the
    statement was taken with the express intention of seeking to have it admitted
    in evidence against Jeremy Hall pursuant to the principled exception to the
    hearsay rule.

[24]

The
    Crown launched this appeal in April 2014. In her factum Crown counsel accepted,
    as the Crown had at trial, that Ms. Eaton was not a compellable witness for the
    Crown and that
Couture
governed the admissibility of Ms. Eatons
    out-of-court statement.  Counsel argued that the trial judge had erred in law
    in his application of the principles from
Couture
to the facts of this
    case.

[25]

Before
    oral argument of this appeal, this Court released
R. v. Nguyen
, 2015
    ONCA 278, 125 O.R. (3d) 321. At para. 68 and following, the court held that the
    exclusion of common law spouses from the ambit of spousal non-compellability in
    s. 4 of the
Canada Evidence Act
was a justified infringement of s.
    15(1) of the
Charter
.
Nguyen
determined that common law spouses
were
    compellable witnesses for the Crown in a criminal prosecution.

[26]

The trial judges rulings must be considered in light
    of
Nguyen
.
Nguyen
impacts on the proceedings at trial in two ways.  First,
Nguyen
establishes that Ms. Eaton was a compellable witness,
[3]
meaning the Crown could not rely on spousal non-compellability to establish the
    necessity prerequisite to the admission of Ms. Eatons out-of-court statement.
    Second, because Ms. Eaton was compellable,
Couture
had no application
    to the admissibility of Ms. Eatons statement. The admissibility of that
    statement turned entirely on considerations of necessity and threshold reliability:
R. v. Nguyen
, at para. 136.

[27]

The
    Crown appeal must also be assessed in light of the law as articulated in
Nguyen
.  No doubt
, were the trial held post-
Nguyen
,
    the Crown would have called Ms. Eaton as a witness and, depending on her
    testimony, would have attempted to introduce her out-of-court statement.  However,
    the Crown cannot, and does not, argue that the trial judge erred in holding that
    Ms. Eaton was not a compellable witness. The trial judge made no such ruling. 
    The Crown chose not to call Ms. Eaton and thereby require the trial judge to
    make a ruling on her compellability.  The Crown chose instead to proceed on the
    basis that Ms. Eaton was not compellable.

[28]

The
    Crown does argue that the trial judge erred in excluding Ms. Eatons
    statement.  Clearly, the trial judge, who did not have the benefit of
Nguyen,
erred. After
Nguyen
,
Couture
was irrelevant to the
    admissibility of Ms. Eatons statement.  The trial judge erred in law in
    excluding the statement on the basis of
Couture
.

[29]

Not
    every error in law entitles the Crown to succeed on an appeal from acquittal.
    The Crown must show in the concrete reality of the case at hand that the
    legal error had some material bearing on the acquittal, such that the outcome
    may well have been affected by the legal error:
R. v. Graveline
, 2006
    SCC 16, [2006] 1 S.C.R. 609, at paras. 14-16;
R. v. McRae
,
2013 SCC 68,

[2013] 3 S.C.R. 931, at para. 30;
R. v. Riesberry
, 2015
    SCC 60, at para. 13.

[30]

The
    Crown cannot demonstrate that the erroneous application of
Couture
had
    a material bearing on the exclusion of the evidence and hence the acquittal of
    Hall.  On the record before the trial judge, he could not possibly have
    admitted Ms. Eatons statement under the principled exception to the hearsay
    rule. The Crown relied exclusively on Ms. Eatons assumed non-compellability to
    establish the necessity prerequisite to the admission of her out-of-court statement.
     As
Nguyen
instructs
,
    Ms. Eaton was compellable.  Absent any other evidentiary basis for a finding of
    necessity, the trial judge could not have admitted Ms. Eatons statement. 
    Consequently, while
Nguyen
renders
Couture
inapplicable, it
    also effectively renders Ms. Eatons out-of-court statement inadmissible
    without first calling Ms. Eaton and establishing the requisite necessity:  see
R.
    v. B.(K.G.)
, [1993] 1 S.C.R. 740, at pp. 796-799.

[31]

The
    Crown on appeal invites the court to conclude that had the Crown called Ms.
    Eaton, she would have either refused to testify, or would have recanted her
    statement to the police to the extent that it incriminated Hall.  Had either
    occurred, the necessity requirement for the admissibility of her out-of-court
    statement would have been established.

[32]

The
    Crowns speculation as to what may have occurred had Ms. Eaton been called as a
    Crown witness may well be correct. It remains, however, speculation.  Apart
    from its discretion to receive fresh evidence in limited circumstances, this
    court takes the trial record as it finds it.  The Crown on an appeal from
    acquittal must demonstrate reversible legal error based on that record, not
    reversible error based on a record that might have existed had different tactical
    decisions been made at trial.  On the trial record, the trial judge could not admit
    Ms. Eatons statement to the police under the principled exception to the
    hearsay rule.  His misapplication of
Couture
to that statement had no
    impact on its ultimate admissibility.

[33]

Nothing
    in my analysis should be taken as a criticism of trial counsel for the Crown.  He
    made a reasonable decision to not re-litigate the question of Ms. Eatons
    compellability.
[4]
With the benefit of
Nguyen
, Crown counsel undoubtedly would have made
    a different decision, the trial would have followed a different evidentiary course,
    and the verdict may have been different.  Neither alters the fact that this
    trial record offers no basis upon which Ms. Eatons statement could be admitted
    under the principled exception to the hearsay rule.

[34]

My
    analysis is predicated on the limited power of the Crown to appeal from an
    acquittal, and the limited powers of this court on an appeal from acquittal. 
    The result may well be different were this an appeal from conviction, given the
    broader grounds on which an accused can appeal, and this courts power to allow
    an appeal where there is a miscarriage of justice:
Criminal Code
s.
    686(1)(a)(iii).  The court cannot allow an appeal from an acquittal on the
    basis of a miscarriage of justice.

[35]

This
    ground of appeal fails.

B.

the admissibility of the intercepted communications

(i)

The authorizations

[36]

The
    Crown obtained an authorization in June and a second one in July of 2010 permitting
    the interception of Halls conversations with Dwayne Utman.  The first authorization
    permitted interceptions in the jail cell shared by Hall and Utman.  The second expanded
    the scope of the first, permitting interceptions at various other locations. The
    two authorizations can be examined together.  There is no argument that one
    authorization could survive judicial scrutiny and the other could not, or that
    evidence obtained under one authorization may be admissible while evidence
    obtained under the other should be excluded under s. 24(2) of the
Charter
. 
    The two stand or fall together.

[37]

Both
    authorizations were granted under s. 184.2 of the
Criminal Code
.  That
    section requires that at least one party to the communication consent to the
    interception.  Utman consented to the interception of his communications with Hall
    and the appropriate consents were attached to the applications for the
    authorizations.

[38]

The
    authorizations permitted interceptions in respect of murder (the Mason murder)
    and counselling murder (the plot to murder the two witnesses).  They allowed
    interceptions of communications in the jail cell shared by Hall and Utman and
    at any other place used by the consenting party, Utman.

[39]

The
    Crown sought to introduce several intercepted conversations between Utman and
    the respondent.  These included 10 intercepted jail cell communications and
    some 80 cell phone communications and conversations intercepted using a body
    pack.  The evidentiary significance of the interceptions is a matter of
    debate.  The content of some, however, was capable of confirming aspects of
    Utmans trial testimony about the plan to murder the two witnesses.
[5]

[40]

Section
    184.2(3) sets out the three preconditions to the granting of an authorization
    under s. 184.2:

·

There must be reasonable grounds to believe the identified
    offence has been or will be committed (s. 184.2(3)(a));

·

One of the intended participants in the communication to be intercepted
    must consent to the interception (s. 184.2(3)(b)); and

·

There must be reasonable grounds to believe that information
    concerning the named offences will be obtained by the interceptions of the
    communications (s. 184.2(3)(c)).

(ii)

The trial proceeding

[41]

The affidavits relied on in support of the application for the
    authorizations contained information provided to the affiant from a variety of
    sources, however, the most significant information came from Dwayne Utman.  The
    affiant described that information as new and compelling.  Counsel for Hall argued
    that without the information provided by Utman, there was no basis upon which
    the authorizations could have been granted.  He submitted that without Utmans
    information, there were no grounds to believe that the conversations between
    Utman and Hall could provide evidence of either Masons murder or the counselling
    of the murder of the witnesses (s. 184.2(3)(c)).  Furthermore, he submitted
    that without the information provided by Utman, there were no reasonable
    grounds to believe that Hall had counselled or would counsel Utman to kill the
    two witnesses (s. 184.2(3)(a)).

[42]

Counsel
    was allowed to cross-examine the affiant.  Counsels cross-examination focussed
    on factors relevant to Utmans credibility and the reliability of the
    information he had provided to the police.  He argued that the cross-examination
    demonstrated that the affiant failed to disclose several significant facts material
    to a proper assessment of Utmans credibility and the reliability of the
    information he gave to the police.

[43]

The
    trial judge found that the affiant had failed to disclose information germane
    to a proper assessment of Utmans credibility:
R. v. Hall
, 2014 ONSC
    708, at paras. 48-51.  He identified five specific areas of non-disclosure:

·

The affiant failed to disclose that Utman had a powerful motive
    to falsely implicate Hall.  He believed that Hall was involved in the torture
    and murder of his sister a few years earlier.

·

The affiant failed to disclose that Utman had tried to get a
    deal in exchange for helping the police implicate Hall.

·

The affiant failed to disclose the full extent of Utmans
    criminal activity.

·

The affiant failed to disclose Utmans ongoing drug addiction.

·

The affiant described Utman as a police agent, although that
    status had not been finalized when the affidavit was sworn.

[44]

After
    identifying the areas in which the affiant had failed to make full and frank
    disclosure of facts material to Utmans credibility, the trial judge said, at
    paras. 51-52:

Im drawn to the conclusion that Detective Sergeant Johnstone
    [the affiant] intentionally or negligently portrayed Dwayne Utman in a far more
    favourable light than he should have.  In my view, this conduct materially
    distorted the picture that was placed before the issuing Justice.  This is not
    a case where the information that was not before the issuing Justice can be
    considered by me as a result of amplification

In the result, because of the material omissions about Dwayne
    Utmans background and the more favourable portrayal of him as a police agent,
    I find that the facts provided by Dwayne Utman as contained in the affidavit in
    support of the wiretap authorization must be excised.

[45]

Having
    excised information sourced to Utman, the trial judge considered whether the
    remainder of the information satisfied the statutory prerequisites for the granting
    of the authorizations.  He concluded that it did not and set aside the
    authorizations:
R. v. Hall
, 2014
    ONSC 708
, at paras. 53-55.

[46]

The
    trial judge then turned to the
Charter
.  Absent the authorizations,
    the interceptions were unlawful and constituted an infringement of Halls
    rights under s. 8 of the
Charter
.  In concluding that s. 24(2)
    required the exclusion of the interceptions from evidence, the trial judge
    emphasized the serious nature of the police misconduct, describing the
    non-disclosure of material facts as either intentional or grossly
    negligent, and the availability of Utman as a witness at trial:
R. v.
    Hall
,
2014 ONSC 708,
at
    paras. 61-64.

(iii)

Did the trial judge err in setting aside the authorizations?

[47]

The
    trial judge acknowledged the narrow ambit of his review of the orders granting
    the authorizations:
R. v. Hall
,
2014 ONSC 708, at
paras. 42-47.  He referred to some of the
    applicable case law, beginning with
R. v. Garofoli
, [1990] 2 S.C.R.
    1421, at p. 1452, in which Sopinka J. said:

The reviewing judge does not substitute his or her view for
    that of the authorizing judge.  If based on the record which was before the
    authorizing judge as amplified on the review, the reviewing judge concludes
    that the authorizing judge could have granted the authorization, then he or she
    should not interfere.  In this process, the existence of fraud, non-disclosure,
    misleading evidence and new evidence are all relevant, but, rather than being a
    prerequisite to review, their sole impact is to determine whether there
    continues to be any basis for the decision of the authorizing judge.

[48]

The
    language from
Garofoli
has been repeated with and without minor variations
    in an unbroken line of authority stretching over the last 25 years:  e.g. see
R.
    v. Pires
, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30.  No one has said
    it more clearly than Sopinka J. and I will use his language.

[49]

In
    her helpful submissions, Crown counsel contends that the trial judge improperly
    deleted information from the affidavit which had not been shown to be
    inaccurate.  Relying on cases like
R. v. Ebanks
, 2009 ONCA 851, 97
    O.R. (3d) 721, at paras. 25-28, she submits that the trial judge should have
    gone through the affidavit as amplified by the cross-examination and omitted
    only the factual assertions shown to be inaccurate or misleading.  Counsel
    contends that the trial judge went too far in excluding all information sourced
    from Utman.

[50]

The
    Crowns submission misconceives the nature of the attack on the authorization
    in this case.  The cross-examination of the affiant was not intended to show
    that specific facts in the affidavit were misstated or that there were material
    omissions which made an assertion in the affidavit misleading.  The
    cross-examination had a broader goal, aiming to discredit Utman and the
    reliability of the information he had provided to the affiant.  In this case,
    as for example in
R. v. Adair
, [1994] O.J. No. 265, at paras. 94-97
    (Gen. Div.), the cross-examination of the affiant went not to specific
    information in the authorization but to the credibility of the main source of
    the information in the affidavit.

[51]

The
    defence argument required that the trial judge consider the affidavit as
    amplified and expanded and decide whether based on that entire record, there
    remained grounds upon which a judge could reasonably rely on the information
    sourced from Utman as a basis for granting the authorization.  Using the
    language of
Garofoli
, the trial judge was required to take the new
    evidence relevant to Utmans credibility, consider it with the evidence in the
    affidavit, and decide whether there continued to be any basis for the order
    granting the authorizations.  The trial judge followed that approach and
    concluded that the information provided on cross-examination effectively
    destroyed Utmans credibility and the reliability of any information sourced
    from Utman.  Given that conclusion, the trial judge properly assessed the
    continued viability of the authorizations by disregarding any information that
    came from Utman.

[52]

The
    other arguments advanced by the Crown run aground on the shoals of appellate
    deference.  Absent error in law, a failure to consider relevant evidence, a
    material misapprehension of evidence, or an unreasonable factual finding, this
    court must defer to the trial judges assessment of the effect of the
    cross-examination on the sustainability of the authorization:
R. v. Ebanks
,
    at para. 22;
R. v. Sadikov
, 2014 ONCA 72,
305 C.C.C.
    (3d) 421,
at para. 89.

[53]

It
    is beyond dispute that the affiant failed to disclose several facts that were
    relevant to Utmans credibility.  At least some of those facts, for example the
    information pertaining to Utmans belief that Hall may have been involved in
    his sisters murder, were obviously significant to the assessment of Utmans
    credibility and, consequently, the reliability of the information he provided. 
    The affiant offered explanations for his omissions.  It was for the trial judge
    to assess the affiants evidence and the cumulative significance of the information
    provided during the affiants cross-examination on the reliability of the information
    coming from Utman.  Different judges might have made different assessments. 
    Even if another trial judge may have taken a more benign view of the effect of
    the material omissions on Utmans credibility, that is no reason for this court
    to interfere with this trial judges assessment.

[54]

The
    Crown attempts to show a failure by the trial judge to consider relevant
    evidence by pointing to the absence of any reference by the trial judge to
    information in the affidavit independent of Utman that could confirm the
    reliability of Utmans information.  No doubt, the trial judge was required to
    consider the entirety of the affidavit, including potentially confirmatory
    evidence, in determining the impact of the cross-examination.  It is also true
    that the trial judge did not specifically refer to the confirmatory evidence
    marshalled by the Crown in her argument.  The trial judges failure to advert
    to the evidence does not, however, mean he did not consider it.

[55]

I
    have considered the information highlighted by the Crown.  Some of that
    information refers to facts that are peripheral to the central events, e.g. Halls
    relationship with the Hells Angels, or to facts that would be widely known in
    the local criminal community and were a matter of public record, e.g. the
    nature of the charges against Hall.  This kind of information could do very
    little to buttress Utmans credibility and the reliability of the information
    provided by him as it related to either the murder investigation or to the
    counselling murder investigation.

[56]

The
    Crown also points to information in the affidavit about Masons murder and
    Halls involvement in that murder.  She submits that much of that information
    comes from sources other than Utman and rendered the information Utman did
    provide more credible.  Clearly, this information is not collateral.  It helped
    establish reasonable grounds to believe that Mason had been murdered and that
    Hall was implicated in the murder.  The trial judges concern, however, as it
    related to the murder investigation, was not that there was no basis to implicate
    Hall in the murder, but rather that absent Utmans information, there was no
    basis to conclude that conversations between Utman and Hall could provide
    evidence of the murder:  see
R. v. Hall
,
2014 ONSC 708
,
at para. 53.

[57]

Evidence
    independent of Utman going to show that Mason had been murdered and Hall was
    implicated in that murder would not necessarily lend credence to the Crown claim
    that conversations between Hall and Utman could produce information relevant to
    that murder.  On the trial judges assessment, that link could be found only in
    the information provided by Utman, which he determined was not sufficiently
    reliable to support the belief that conversations between Utman and Hall could
    provide information about the murder.

[58]

The
    Crown next submits that, even if all of the information from Utman was properly
    removed from the affidavit, there remained a basis upon which a judge could reasonably
    conclude that there were grounds to believe that information concerning the Mason
    murder could be obtained through the interception of conversations between
    Utman and Hall.  Crown counsel submits that the failure to consider the residue
    of the information provides a basis for reversal.  She argues that if there
    remained evidence to support the interceptions in relation to the Mason murder,
    the interceptions were lawful, even if they could not be justified as having
    any link to the alleged plot to kill the two witnesses:  see
R. v. Commisso
,
    [1983] 2 S.C.R. 121, at pp. 129-130.

[59]

In
    support of the argument, the Crown relies on the following:

·

Utman and Hall had known each other for years;

·

Utman and Hall had engaged in criminal activity together in the
    past; and

·

Utman and Hall were sharing a jail cell.

[60]

No
    one would suggest that the trial judge was unaware that Utman and Hall shared a
    jail cell and had a common criminal history.  However, he was also aware of
    facts that would suggest that Hall would not be likely to speak to Utman about
    the Mason murder.  Utman and Hall had not seen each other for about eight
    years.  Hall had reason to believe that Utman thought that Hall was involved in
    the torture and murder of his sister.  There was also evidence before the trial
    judge that prior attempts to gather information implicating Hall in Masons
    murder by the interception of communications between Hall and criminal
    associates had failed.

[61]

The
    trial judges failure to specifically advert to the shared criminal history of
    Hall and Utman and their common living accommodation cannot be equated with a
    failure by him to consider those factors.  The trial judges failure to
    specifically advert to this evidence speaks to the relative insignificance of the
    information.  Even if I were prepared to assume that the trial judge had failed
    to consider this information, I do not think it could have altered his determination
    as to the impact of the cross-examination on the sustainability of the authorizations.

(iv)

Did the trial judge err in excluding the evidence?

[62]

Having
    determined that the interceptions were unlawful and therefore breached Halls
    rights under s. 8, the trial judge turned to s. 24(2).  Employing the
    well-known tripartite approach set down in
R. v. Grant
, 2009 SCC 32,
    [2009] 2 S.C.R. 353, the trial judge excluded the evidence.  The Crown accepts
    that the approach in
Grant
controls, but argues that the trial judge
    overemphasized considerations favouring exclusion and underemphasized
    considerations favouring admission.

[63]

This
    part of the appeal does not require any detailed analysis.  The trial judge was
    alive to the applicable law and addressed the factors relevant to the
    application of s. 24(2) of the
Charter
.  Absent legal error, a
    palpable and overriding error, or an unreasonable conclusion, this court defers
    to the trial judges ruling:
R. v. Cô
té
, 2011 SCC 46, [2011]
    3 S.C.R. 215, at para. 44.

[64]

I
    need not review the trial judges analysis of each of the three
Grant
factors.  That analysis reveals no error.

[65]

I
    must, however, emphatically reject the submission that the trial judge
    overstated the seriousness of the police misconduct in considering the
    admissibility of the intercepted communications. The trial judges
    characterization of the omissions from the affidavit as intentional or grossly
    negligent was reasonable.  Those omissions were reasonably capable of
    seriously distorting a proper assessment of the credibility of not only Utman,
    but also Jason Lusted, another long-time criminal said by the affiant to have
    provided information implicating Hall in Masons murder.  As the trial judge
    explained, either the affiant deliberately left out the details to secure the
    authorizations, or he operated under a profound and dangerous misunderstanding
    of the affiants obligation to make full and frank disclosure when seeking an
ex
    parte
order involving a serious intrusion into the personal privacy of the
    target of that order.  That obligation is central to the viability of prior
    judicial authorization as a means of striking the proper balance between
    reasonable and unreasonable state intrusions into personal privacy:  see
Hunter
    et al. v. Southam Inc.
, [1984] 2 S.C.R. 145, at pp. 159-160.

[66]

I
    would defer to the trial judges holding that the evidence should be excluded.


IV



conclusion

[67]

I
    would dismiss the appeal.

Released: DD JAN 08 2016

Doherty J.A.

I agree M. Tulloch
    J.A.

I agree Grant
  Huscroft J.A.





[1]
Section 4 of the
Canada Evidence Act
has been amended.  Section 4 now
    reads:  No person is incompetent, or uncompellable, to testify for the
    prosecution by reason only that they are married to the accused:  S.C. 2015, c.
    13, s. 52(1).



[2]
Hall was ultimately convicted of Mr. Masons murder.  The conviction is under
    appeal.



[3]
The respondent sought to file fresh evidence on the appeal in support of an
    argument that Ms. Eaton was not compellable even on the analysis in
Nguyen
. 
    As I would not give effect to the Crowns argument on this ground of appeal, I
    need not consider the respondents request to admit fresh evidence.



[4]
When the Crown elected not to re-litigate Ms. Eatons compellability, apart
    from the trial judgment in the Mason murder, there were trial decisions in
    Ontario going both ways on the compellability of a common law spouse.  Indeed,
    the trial judge at the Mason murder had initially held that Ms. Eaton was
    compellable, but had reconsidered his decision after the Supreme Court of
    Canada released
Quebec (Attorney General) v. A.
, 2013 SCC 5, [2013] 1
    S.C.R. 61.



[5]
Counsel for Hall filed fresh evidence on the appeal pertaining to the accuracy
    of some of the summaries  of the relevant conversations filed at trial.  In
    light of my disposition of the appeal, I need not consider the admissibility of
    this fresh evidence.


