



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Little, 2014 ONCA 339

DATE: 20140430

DOCKET: C51441

Doherty, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Little

Appellant

Christopher Little, appearing in person

Russell Silverstein and David S. Rose, appearing as
amicus
    curiae

Eric Siebenmorgen, for the respondent

Heard and released orally: April 10, 2014

On appeal from the conviction entered on November 25,
    2009 by Justice Michelle Fuerst of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

Mr. Little was convicted of two counts of murder.  He represents himself
    on the appeal.  Mr. Silverstein was appointed under s. 684 to argue certain
    issues arising out of the trial judges ruling that certain evidence obtained from
    a search of the appellants cellphone and from a search of his workplace
    computer were admissible despite the violations of the appellants rights under
    s. 8 of the
Charter
.

[2]

Mr. Silverstein has argued the issue with his usual force and clarity. 
    He focused primarily on the evidence obtained from the search of the workplace
    computer.  That search produced evidence of an internet search of the home
    address of Ms. Menendez, one of the victims.  The material included a map
    showing the precise location of her home.  This was potentially important
    evidence for the Crown.

[3]

In holding that the evidence was admissible, the trial judge carefully
    considered the three factors identified in
R. v. Grant
,
[2009] 2 S.C.R. 353.  The factual
    findings underlying her legal analysis are entitled to deference in this
    court.

[4]

Despite Mr. Silversteins submissions, we see no error in the trial
    judges application of the 
Grant
factors to the search of the
    cellphone.  We need say no more on that issue as Mr. Silverstein did not press
    the point in oral argument.

[5]

We did call on the Crown to respond to Mr. Silversteins submission that
    the trial judge erred in finding that the interference with Mr. Littles
    privacy interest flowing from the search of his workplace computer falls at
    the lowest end of the scale.

[6]

Mr. Silverstein argued that given the intrusive nature of that search,
    the material accessed by the police and the appellants significant privacy
    interest (despite the fact that the computer belonged to his employer), the
    interference with the appellants privacy rights went well beyond the lowest
    end of the scale.  He submits that if the impact of the breach on Mr. Littles
    privacy rights is properly assessed, s. 24(2) favours exclusion.

[7]

Mr. Siebenmorgen for the Crown contends that the trial judges finding
    of a relatively minimal impact on Mr. Littles privacy interest was fully
    warranted on the evidence.  He stresses that a determination of the nature of
    the privacy interest engaged and the impact of the breach on that privacy
    interest on a persons s. 8 rights demand a fact-specific case-by-case inquiry. 
    Mr. Siebenmorgen points to the trial judges factual findings on her s. 8
    ruling.  He argues that those findings were available to her on the evidence
    and justify her subsequent characterization of the s. 8 breach as at the
    lowest end of the scale.

[8]

We think Mr. Siebenmorgen has the best of this argument.  Cases from the
    Supreme Court of Canada subsequent to the trial judges ruling,
e.g.

R.
    v. Vu
,

[2013] 3
    S.C.R. 657 and
R. v. Cole
,
[2012] 3 S.C.R. 34, support the case-by-case consideration of the nature of the
    privacy interest engaged and the impact of the s. 8 breach on that privacy
    interest.  As made abundantly clear in
Vu
and
Cole
, this
    case-by-case approach applies to searches of computers.

[9]

Several factual findings made by the trial judge particular to the
    evidence in this case diminished the appellants reasonable expectation of
    privacy and hence, the impact on his privacy rights of the s. 8 breach.  In our
    view, the trial judges finding is entitled to deference and should stand.  The
    evidence was properly received.

[10]

Mr.
    Little made several submissions on his own behalf.  He provided carefully
    written helpful submissions to the court and amplified those submissions in
    oral argument.  Mr. Littles arguments fall into three categories.

[11]

First,
    he attacks several submissions made by the Crown in his closing address as
    inaccurate and prejudicial.  In our view, the vast majority of the Crowns
    submissions were unobjectionable.  The Crown is entitled to make arguments that
    are open on the evidence even if the Crown did not specifically put those
    arguments to the appellant when he was testifying.  The failure to do so at
    most goes to the weight the jury might attach to the Crowns argument.

[12]

To
    the extent that the Crown overstated the evidence, we see no prejudice.  The jury
    was repeatedly told that the submissions of counsel did not constitute evidence
    and it was their recollection that must be relied on in determining the facts. 
    We note as well that very experienced defence counsel did not object to the
    Crowns closing.  We would not give effect to this argument.

[13]

Mr.
    Littles second area of complaint arises out of the trial judges charge to the
    jury.  He argues that the trial judge made three factual errors in her
    instructions to the jury.  After considering each, we think there was only one misstatement
    of the evidence.  The trial judge told the jury that there was evidence that
    traces of blood from Julie Crocker, one of the victims, were found on the appellants
    shoelaces.  As we understand the evidence, while there was trace blood found on
    the shoelaces, it could not be identified as Ms. Crockers blood.

[14]

Considered
    in the context of the entirety of the blood evidence, we regard this as a minor
    error.  Furthermore, the jury had the blood evidence in chart form and no doubt
    would refer to the chart when considering the blood evidence and what
    inferences, if any, to draw from it.

[15]

The
    trial judge told the jury more than once that it was their recollection of the
    evidence which must govern their deliberations.  There was no objection.   Indeed,
    we think it quite remarkable given the length of this case and the very
    detailed review of the evidence provided by the trial judge, that she made only
    a single factual error.  Certainly, that error did not prejudice the appellant
    and is not enough to warrant a new trial.

[16]

The
    third argument put forward by the appellant arises out of the evidence of statements
    made by the victims, Ms. Menendez and Ms. Crocker.  Counsel compiled a chart
    summarizing those statements for the jury.  The chart was jointly prepared by
    counsel and presented to the trial judge as an appropriate way to put the
    evidence before the jury.  The appellants evidence about statements made by
    Ms. Menendez and Ms. Crocker was not summarized in that chart.  He submits that
    the absence of reference to his evidence is prejudicial and requires a new
    trial.

[17]

We
    must reject this submission.  First, we will not second guess considered tactical
    decisions made by counsel at trial.  Counsel were obviously content with the
    way the evidence of the statements was placed before the jury.  Second, the
    appellants evidence as it related to these statements was put to the jury,
    albeit in a different part of the trial judges instructions.  We see no
    prejudice or unfairness arising out of the way the trial judge dealt with the
    evidence of the statements made by Ms. Crocker and Ms. Menendez.

[18]

The
    appeal is dismissed.

Doherty J.A.

K. van Rensburg J.A.

M.L. Benotto J.A.


