



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Badgerow, 2014 ONCA 272

DATE: 20140408

DOCKET: C56067

Hoy A.C.J.O., Gillese and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Robert Badgerow

Respondent

Randy Schwartz, for the appellant

Frank Addario and Matthew Gourlay, for the respondent

Heard: December 18, 2013

On appeal from the stay of proceedings by Justice Gerald
    Taylor of the Superior Court of Justice, dated September 6, 2012, with reasons
    reported at 2012 ONSC 4829.

Strathy J.A.:

[1]

The Crown wants to try the
    respondent, Robert Badgerow, a fourth time for first degree murder of Diane
    Werendowicz in 1981. His first trial, 20 years after
the killing, resulted in a conviction. It was overturned by this court and a
    new trial was ordered. His second trial, in 2010, ended in a mistrial when the
    jury was unable to reach a verdict. His third trial, in 2011, ended the same way.

[2]

When the Crown indicated it intended
    to try the respondent a fourth time, he applied for a stay of the proceedings.
    The application judge, who had presided at both the second and the third trials,
    found a fourth trial would be a breach of his right to life, liberty and
    security of the person under s. 7 of the
Charter
and an abuse of
    process. He ordered the stay under s. 24(1) of the
Charter
. The Crown
    appeals that order, pursuant to s. 676(1)(c) of the
Criminal Code.

[3]

For the reasons that follow,
    I would set aside the stay and order a new trial. The respondents DNA was
    found in the victim. He testified he had consensual intercourse with her on the
    night of the killing. The jury did not, however, hear relevant and highly probative
    evidence that was excluded at all three trials  evidence from which they could
    have concluded that a 911 call, giving details of the crime that only the
    killer was likely to have known, had been traced to a payphone at the
    respondents workplace. The exclusion of this evidence means there has never been
    a trial of the respondent at which all the properly admissible evidence has
    been placed before the jury for its consideration. The public interest in such
    a trial outweighs any unfairness in trying the respondent a fourth time.

I.

background

A.


The Facts

The Murder of Diane Werendowicz

[4]

Ms. Werendowicz was murdered
    in the early morning of Saturday, June 20, 1981. After working all day Friday
    as a nursing assistant at McMaster University Medical Centre, she and a female
    friend went to a bar in Stoney Creek, where they had a few beers. She left the
    bar alone around midnight to walk to her home, 10 to 15 minutes away.

[5]

On her way, she was dragged
    into a ravine, sexually assaulted, strangled, dumped in a creek and drowned. Her
    body was found later that day. A tire covered her head and shoulders. She was
    wearing a blouse, jeans, a brassiere and socks. The zipper of her jeans was
    partly undone and her blouse was unbuttoned. Her shoes, underpants and wallet
    were found nearby, on the bank of the creek. When the tire was lifted and her
    body removed, it was discovered that she had been strangled, with the strap of
    her purse wound around her neck. Subsequent tests showed the presence of semen
    on her jeans and in her vagina and anus.

The 911 Call

[6]

Two days later, a man, who refused
    to identify himself, called 911 in Hamilton, claiming to have information about
    the killing. He reported the victim had been raped before she was killed and
    she was strangled with her purse. He also reported she was found face down
    in the crick [
sic
] with a tire on top of her shoulders and head. He accurately
    described the victim and her clothing. Some of the information he disclosed had
    not been publicly released by the police.

[7]

The respondent conceded, in
    this court and before the application judge, that it would be open to a jury to
    find the 911 caller was the killer.

[8]

The police asked Bell Canada
    to trace the call. Shortly after receiving a response, police were dispatched
    to a payphone booth at Gate #6 of the Dofasco steel plant in Hamilton. The
    booth was empty. A man, who did not resemble the respondent, had been seen
    using the phone around the time of the call, but he was not found in a search
    of the area.

[9]

Although the police did not
    know it at the time, the respondent was working about 100 feet from the phone
    booth when the 911 call was made. Nor could they have known that the
    respondents DNA matched the samples taken from the victims body and jeans.

[10]

Evidence
    of Bell Canadas trace of the 911 call, and the dispatch of police to the phone
    booth close to where the respondent was working, was excluded at all three
    trials. Later in these reasons I will provide more detail concerning the 911
    call, its trace, and the police response.

The Ravine Task Force and the Respondents
    DNA

[11]

No
    charges were laid in connection with the killing for many years.

[12]

In
    May 1997, the Hamilton Police established the Ravine Task Force to
    investigate a number of sexual assaults in the area of this crime, between 1980
    and 1997.

[13]

The
    respondent was identified as a suspect. He had been arrested in 1981 in
    connection with a brutal assault of a young woman in the same area, seven weeks
    after the Werendowicz killing. She had gone to school with the respondent and
    identified him as her assailant. He was released, however, after police
    believed they had confirmed his alibi.

[14]

During
    its investigation, the task force surreptitiously obtained a sample of the respondents
    DNA. It matched the profile from semen obtained from Ms. Werendowiczs jeans
    and from post-mortem vaginal and anal swabs. The respondents DNA was not found
    on the victims underpants.

[15]

On
    December 1, 1998, the respondent was arrested for Ms. Werendowiczs murder.  He
    was also charged for the attempted murder and indecent assault of the other
    woman.
[1]

The Respondents Statement to the
    Police

[16]

Shortly
    after his arrest, before he knew the police had a DNA match, the respondent
    gave a videotaped statement denying any contact with the victim on the night
    she was killed. When the police disclosed the DNA evidence, he said he was
    unable to explain it, and they should speak to his lawyer.

The Respondents Explanation for his
    DNA

[17]

At
    his trials, the respondent claimed he met Ms. Werendowicz, whom he did not
    know, in the parking lot of the bar where she had been drinking with friends.
    He said they smoked marijuana and had consensual intercourse in the back of his
    truck. She left alone, to walk home.

[18]

According
    to the respondents theory, Ms. Werendowicz was attacked and killed by someone
    else on her way home. He explained the absence of his DNA on her underpants by
    the theory that she had not put them on after their sexual encounter and had
    carried them with her, dropping them when she was attacked in the ravine. He
    suggested no other persons DNA was found because the assailant had groped the
    victim but did not have forcible intercourse with her.

B.

The Trials

The First Trial

[19]

The
    first trial took place before Lofchik J. and a jury in Hamilton beginning in
    January, 2001. The jury heard evidence of the respondents statement to the
    police. He was cross-examined on the inconsistencies between this statement and
    his evidence of a consensual sexual encounter with the victim.

[20]

The
    defence led evidence of a third-party suspect. This man, who lived in the same
    apartment building as Ms. Werendowicz, had a record for numerous sexual
    assaults in the mid-1980s. He was called as a defence witness and denied sexually
    assaulting or murdering Ms. Werendowicz. There was no forensic evidence linking
    him to the crime and his DNA excluded him as a source of the semen samples.

[21]

In
    April 2001, after eight days of deliberation, the jury found the respondent
    guilty of first degree murder. Lofchik J. imposed the mandatory sentence of
    life imprisonment without parole eligibility for 25 years.

[22]

The
    respondent appealed his conviction. It took a number of years to perfect his
    appeal, and it was not until September 2008 that this court ordered a new
    trial, on the ground that his statement to the police should have been excluded
    due to a breach of s. 10(b) of the
Charter
:
R. v. Badgerow
,
    2008 ONCA 605, 237 C.C.C. (3d) 107, leave to appeal to S.C.C. refused, [2008]
    S.C.C.A. No. 483.

The Second
    Trial


[23]

The
    second trial took place in Hamilton, commencing in February, 2010, before the application
    judge and a jury. The trial lasted almost four months, with 51 Crown witnesses
    and 19 defence witnesses, including the respondent. On June 14, 2010, after
    seven days of deliberation, the jury was unable to reach a unanimous verdict
    and was discharged.

[24]

There
    was no reference to the respondents police statement at either the second or
    third trials. Nor was there evidence of the dispatch of police to Dofasco after
    the 911 call. The only evidence admitted concerning the 911 call trace was that
    the call originated from one of three broad sectors of Hamilton  the east end
     which included the Dofasco plant.

The Third Trial

[25]

The
    third trial was moved to Kitchener due to extensive pre-trial publicity in the
    Hamilton area. The application judge again presided over the trial. It began on
    September 12, 2011 and ended on December 9, 2011, when the jury was discharged
    after five days of deliberation, again unable to reach a verdict.

[26]

An
    audio recording of the 911 call was introduced in evidence at the trial and ten
    people who knew the respondent testified they recognized his voice. Ten defence
    witnesses testified it was not the respondents voice. Two other witnesses
    testified they recognized the voice as that of the alternative suspect. Both
    the respondent and the alternative suspect denied they had made the call.

[27]

I
    will summarize the 911-trace evidence and the judges reasons for its
    exclusion.

C.

The 911 Call and the Telephone Trace

[28]

A
    911 system had been implemented in Hamilton in 1979, two years before the
    killing. All 911 calls were routed though the Hamilton Police Communication
    Centre. A single room housed call-takers (who received incoming calls),
    dispatchers, and a supervising sergeant. Incoming 911 calls were recorded. As
    well, most communications into and from the Communication Centre were recorded,
    but calls on the sergeants telephone extension were not. An audio disc of the
    communications was introduced in evidence on the
voir dires
concerning
    the admissibility of the 911-trace evidence.

[29]

One
    of the features of the 911 system was that the call-taker could lock the line
    so it would remain connected to the originating phone even after the caller
    hung up. This allowed emergency personnel to ring back a 911 caller, if for
    some reason the call disconnected. By keeping the line open, it was also
    possible to trace the call. The lock feature and the ability to trace calls were
    obviously important to emergency responders when, for example, callers became
    unable to continue their calls, or where third parties interrupted or ended them
    before the callers had an opportunity to identify their addresses or locations.

[30]

When
    a 911 call was received, the call-takers console automatically displayed the
    trunk information for the call. In the Hamilton area in 1981, there were 65
    911-trunk lines, and the trunk information identified the geographic sector in
    Hamilton from which the call originated and permitted the call to be traced. The
    same information was provided on the sergeants console. When a trace was
    required, the call-taker would give the trunk information to the sergeant or request
    a trace himself. The sergeant or call-taker would telephone the Bell Canada
    repair office and provide the trunk information to request a trace.

[31]

Gary
    Davis, a Hamilton police constable, was the call-taker who received the 911
    call at 12:18 p.m. on June 22, 1981. The dialogue was as follows:

Davis:          Emergency Bureau.

Caller:         Is this the police?

Davis:          Yes.

Caller:         Uh, I got information on how that girl was
    killed on Barton and Lake.

Davis:          Whats your name?

Caller:         Uh, thats not important.

Davis:          Okay, whats the information?

Caller:         Uh,
she was raped before she was killed.
She was wearing blue jeans, a white top and a red or a [
sic
] orange
    top over top of the white top. Uh, blonde hair, about 5-11. She was found face
    down in the crick [
sic
] with a tire on top of her shoulders and head.

Davis:          Yeah.

Caller:         And uh, thats about all I can tell ya.

[Caller hangs up, then picks up again.]

Caller:         And
she was strangled with her purse
.

[Caller hangs up; Davis rings back.]

Caller: Hello?

Davis: Yeah, its the police again. Can you give us any more?

Caller: No, I dont want to get involved.

Davis: Well, why did you bother calling then?

[Caller hangs up.]

[Emphasis added.]

[32]

Constable
    Davis locked the line on which the 911 call was received, keeping it open even
    after the caller hung up twice. Keeping the line open permitted Bell Canada to
    trace the call.

[33]

As
    indicated in the transcript of the call, on the first occasion, the caller
    himself picked up the phone and briefly continued their conversation. The
    second time Constable Davis used the ring back feature, the caller picked up
    the receiver and they had another brief exchange.

[34]

Constable
    Davis immediately realized the significance of the call and contacted the detectives
    in charge of the Werendowicz homicide investigation. He confirmed he had the
    911 line on hold and asked the detectives to come to the radio room. These
    communications were recorded.

[35]

One
    of the detectives testified that on becoming aware of the call, he immediately
    went to the radio room and requested a trace. Although he did not specifically
    remember the call, he said that, based on his experience, he would have asked
    that the line be locked and the call traced, following which he would have sent
    police officers to the location of the call to seal it off.

[36]

In
    accordance with the standard operating procedure, Constable Davis also gave his
    sergeant, Sergeant Jachymek, the particulars of the trunk line on which the
    call had been received. The sergeant would then be able to give Bell Canada the
    information necessary to trace it.

[37]

By
    the time of the trials, Sergeant Jachymek had no recollection of the specific
    911 call. However, on the recording of the activity in the Communication Centre
    after the 911 call, there is a page for Sergeant Jachymek, followed by Constable
    Davis providing someone with details of the trunk line on which the 911 call
    had been received.

[38]

At
    12:45 p.m., approximately 10 minutes after Constable Davis relayed the trunk
    information, the Communication Centre recorded an incoming call from a person
    identifying himself as the telephone tester and requesting the sergeants extension.
    The communication between the telephone tester and the person at the sergeants
    extension was not recorded.

[39]

Three
    minutes later, at 12:48 p.m., a police cadet in the Communication Centre called
    Dofasco security to ask whether there was a payphone booth at Gate #6. He
    testified he believed his sergeant (Jachymek) instructed him to make the call. After
    receiving an affirmative reply, he instructed Dofasco that no one be allowed to
    enter the booth until police arrived. This conversation was recorded.

[40]

At
    12:49 p.m., one of the homicide detectives assigned to the Werendowicz
    investigation contacted the identification services department of the Hamilton
    police, requesting the dispatch of an identification officer to Dofasco Gate #6
    to take fingerprints from the payphone near the gate. This call was recorded.

[41]

At
    12:50 p.m. the police dispatcher at the Communications Centre asked a patrol car
    to go to Gate #6 at Dofasco, on Ottawa Street North, and to stand by the phone booth
    and not allow anyone to enter it. This call was also recorded.

[42]

There
    was evidence that a patrol car immediately attended at Gate #6, arriving at
    12:53 p.m. The report of its arrival was recorded. The officers found no one in
    the phone booth. They removed the telephone handset. It was later tested for
    fingerprints, and the respondents prints were not found on the receiver. Nor
    were his prints found elsewhere in the phone booth.

[43]

Phillip
    Johnston, a Bell Canada employee, was qualified on the
voir dire
at
    the second trial as an expert in the operation of the 911 system, including the
    method of tracing the origin of 911 calls. He explained that to initiate a
    trace, police called the Bell Canada repair office and provided information
    about the trunk line on which the 911 call had been received. Depending on the
    type of switching equipment on the telephone line on which the 911 call was
    placed, the person at Bell Canada might have to enlist the assistance of one or
    more other Bell Canada employees in order to trace its location. When the trace
    was completed, a Bell Canada call-tester would inform the police of the
    location of the caller. In his opinion, the fact that the call-tester called
    the Communication Centre meant the trace had been completed successfully and
    that Bell Canada had also verified its accuracy. His testimony supported the
    finding that Bell Canadas switching systems were incapable of generating an
    inaccurate or uncertain call trace.

[44]

Johnston
    testified there were two different switching systems in place in 1981. One
    permitted the originating telephone number to be located by computer. The other
    required a manual trace by a Bell Canada technician. No witness was able to
    state which system applied to the payphone at Dofasco Gate #6. Johnston
    testified that, regardless of which system it was, once the originating
    telephone had been identified, the accuracy of the trace would be confirmed by shorting
    the line in question which would generate a unique sound confirming that the
    line was still connected to the police Communication Centre.

[45]

Once
    the telephone number was identified, the street address of the telephone could
    be ascertained from Bell Canadas records.

[46]

Johnston
    testified that the 911 tracing system in June 1981 was 99.9% accurate. This did
    not mean that 0.1% of traces were inaccurate; rather, it meant there was only a
    0.1% chance the system would fail to trace the call. Johnston also testified
    that records were kept of all traces requested by the police and these records
    were retained for some period of time.

[47]

Sergeant
    Jachymek testified that when a trace of a telephone number was requested, the
    police generated a report that contained all of the information about the trace
    including the person or persons spoken to at Bell Canada.

[48]

In
    his ruling excluding the 911-trace evidence at the second trial, the application
    judge noted that neither the records referred to by Johnston nor the report
    referred to by Sergeant Jachymek were produced on the
voir dire
: 2010
    ONSC 946, [2010] O.J. No. 1028, at para. 13. He concluded that due to the
    passage of time, these documents could not be located or they had been lost or
    destroyed.

[49]

The
    Crown asserts that, although there is no direct evidence of the content of the
    communication from the Bell Canada call-tester (who has not been identified) to
    Sergeant Jachymek (who had no recollection of the call), there is direct and
    circumstantial evidence from which a jury could conclude that Bell Canada traced
    the 911 call to the payphone at Dofasco Gate #6. Specifically, there is
    evidence, which I refer to collectively as the 911-trace evidence, that:

·

a man called 911 in Hamilton and
    reported details of the crime known only to the killer and the police;

·

Constable Davis, the call-taker at the
    Hamilton Police Communication Centre, understood the importance of the 911 call;

·

Constable Davis took the proper steps
    to request a trace, including locking the line on which the 911 call had been
    placed, in order to keep the line open so as to permit a trace, and providing
    the trunk information to Sergeant Jachymek;

·

Sergeant Jachymek called Bell Canada
    and requested a trace of the 911 call;

·

minutes later, Bell Canada called the
    Communication Centre;

·

Bell Canadas report of the call trace
    would not have been inaccurate or uncertain;

·

moments after Bell Canada called the
    Communication Centre, police called Dofasco about the payphone at Gate #6, and
    in doing so described the payphone in a manner consistent with the way Bell
    Canada would have relayed the location to them;

·

moments after that, the police were
    dispatched to Dofasco Gate #6 to investigate and secure the payphone; and

·

the police cut the handset from the
    telephone and took it for fingerprinting.

[50]

The
    Crown also proposed to adduce employment records showing the respondent was
    employed by Dofasco and on the day of the 911 call, June 22, 1981, was working
    a 7 a.m. to 3 p.m. shift in the coiler section at the No. 1 Hot Mill Building,
    located on Ottawa Street North. The payphone booth was within 100 feet of that
    location and could have been accessed in 60 to 90 seconds. At the time the call
    was placed, 12:18 p.m., the respondent would have been on his lunch break.
    There was also evidence that security personnel at the gate would not
    necessarily have observed someone using the payphone.

[51]

The
    Crown submits that, taken together, the 911-trace evidence supports the
    conclusion that Bell Canada traced the 911 call to Dofasco Gate #6. The
    inferences flowing from this evidence should have been left with the jury, but
    the application judge failed to consider them. Instead he applied a hearsay
    analysis to the admissibility of this evidence and wrongly concluded that it
    was inadmissible. Alternatively, the Crown submits that on a proper hearsay
    analysis, the evidence should have been admitted.

D.

Exclusion of the
    911-Trace Evidence

[52]

The
    911-trace evidence was excluded at all three of the respondents trials,
    although different evidence was presented on the
voir dire
at each
    trial. I will briefly outline the reasons.

First
    Trial

[53]

Lofchik
    J. refused to permit the Crown to adduce the 911-trace evidence:
R. v.
    Badgerow
(2000), 154 C.C.C. (3d) 280 (Ont. S.C.). He found, at para. 5,
    that while the evidence met the necessity requirement in
R. v. Khan
,
    [1990] 2 S.C.R. 531, it fell far short of meeting the reliability test. He explained:

There are substantial gaps in the continuity of the evidence in
    the sense of what was said by whom to whom at what point in time and there is
    no direct evidence as to what information was conveyed to Bell Canada in
    initiating the trace, what information was conveyed by the individuals within
    Bell Canada to each other and what information was ultimately conveyed to the
    police. We are asked to infer that the call was traced to the phone booth at
    Dofasco because that is where the cruiser was dispatched.

[54]

He
    noted there was no evidence before him of the reliability of the tracing of 911
    lines in 1981. He also found there was no non-hearsay use that could be made
    of the evidence (at paras. 10-12).

[55]

The
    Crown subsequently requested that Lofchik J. reconsider his ruling, pointing to
    extrinsic evidence confirming the reliability of the hearsay statement. He
    declined to do so:
R. v. Badgerow
, [2000] O.J. No. 5445. He referred
    to
R. v. Starr
, 2000 SCC 40, [2000] 2 S.C.R. 144, and
R. v. Merz
(1999), 46 O.R. (3d) 161 (C.A.), leave to appeal to S.C.C. refused, [2000]
    S.C.C.A. No. 240, for the proposition that the presence of corroborating or
    conflicting evidence should not be considered when deciding threshold
    reliability.

Second
    Trial

[56]

By
    the time of the re-trial, which did not occur until 2010, the Supreme Court had
    released its decision in
R. v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R.
    787. The Crown argued that as a result of that decision, it was appropriate to
    consider extrinsic evidence confirming the reliability of the hearsay evidence
    sought to be adduced. Specifically, the Crown relied on evidence that:

·

several witnesses had identified the respondents voice on a
    recording of the 911 call;

·

police officers attended at the payphone booth outside Dofasco
    Gate #6 within minutes of the call from the call-tester to the Communication
    Centre;

·

the respondent worked at Dofasco in proximity to the payphone
    booth outside Gate #6; and

·

the respondents DNA was located on the vaginal and anal swabs
    obtained from victims body.

[57]

The
    application judge was not prepared to admit the 911-trace evidence:
R. v.
    Badgerow
, 2010 ONSC 946, [2010] O.J. No. 1028. His principal concern was
    his inability to assess the reliability of the statement by the Bell Canada
    call-tester to the police without knowing its contents.

[58]

At para. 17, he described the Crowns reliance on the police
    dispatching a cruiser to Gate #6 as evidence of the content of the call as
    circular reasoning, because the call-tester may have identified Gate #6 as a
    possible but not definite location:

The Crown argues that an inference can be drawn that the
    telephone tester told the person spoken to at the Communication Cent[re] that
    the source of the 911 call was the payphone outside Dofasco Gate 6 because that
    is the location to which police officers responded within minutes of the
    incoming telephone call from the tester. However, that seems to me to be
    circular reasoning. Because the police went to the phone booth located outside
    Dofasco Gate 6 means that must have been the location identified by the telephone
    tester. But what if the tester only identified the phone booth outside Dofasco
    Gate 6 as a possible but not a definite location of the origination of the 911
    call? Presumably the police would have done exactly as they did and responded
    to the Dofasco location on Ottawa Street, North.

[59]

He
    also described as circular the Crowns reliance on evidence corroborating the
    reliability of the 911-trace evidence, at paras. 18-19:

Similarly, it seems to me to be circular reasoning to argue
    that several people have identified Robert Badgerows voice as the 911 caller
    as extrinsic evidence that the location of the call was the payphone outside
    Dofasco Gate 6 when the reason for wanting to introduce that evidence is to
    prove the other [
sic
] Robert Badgerow was the person [who placed] the
    911 call. Likewise, I find it to be circular reasoning to say the fact that
    Robert Badgerow worked at Dofasco in proximity to the phone booth outside Gate
    6 is extrinsic evidence that the call was placed from that payphone in order to
    prove the Robert Badgerow was the 911 caller.

Counsel advised me that they were unable to find any decided
    cases in which a hearsay statement was found to be admissible on a principled
    basis when neither the maker nor the recipient of the statement were known and
    the content of the statement had to be inferred. I am not prepared to do so in
    this case.

[60]

Significantly, however, the application judge found, at
    para. 20, that the Hamilton 911 system was designed to accurately trace the
    source of incoming 911 calls to the Hamilton Police Communication Cent[re] and
    that Bell Canada employees involved in the tracing of 911 calls, in all
    likelihood, performed their responsibilities accurately. He was not, however, prepared
    to draw the further conclusion that the telephone tester told someone at the
    Hamilton Police Communication Cent[re] that the 911 call received by Officer
    Davis originated from the payphone outside Dofasco Gate 6. Accordingly,
    because he could not identify the content of the communication, he would not
    admit the 911-trace evidence.

Third
    Trial

[61]

The
    application judge considered that, as a result of s. 653(1) of the
Code
,
    and consistent with
R. v. Wu
(2002), 170 C.C.C. (3d) 225 (Ont. C.A.),
    his evidentiary rulings made at the second trial would apply to the third
    trial, subject to his ability to revisit the rulings, if so advised.

[62]

Seizing
    on his comments about missing records in his earlier ruling, the Crown sought
    to prove the content of a lost document on which Bell Canada would have
    recorded the origin of the 911 call. As expressed by the application judge, [t]he
    Crown argues that I should re-create the content of this lost document and then
    admit the content of that lost document as proof of the truth of its content,
    namely that the 911 call in question originated from the phone booth [outside
    Dofasco Gate #6].

[63]

At
    the
voir dire
, the Crown adduced evidence of the accuracy of Bell
    Canadas tracing system. The application judge said that, in summary, the
    evidence was that the traces were always accurate. He noted, however, that no
    new evidence had been adduced with respect to the actual call at issue, nor about
    what was said by the Bell Canada call-tester on the call to the sergeant in the
    Communication Centre to report on the result of the trace.

[64]

The
    application judge said that, in the absence of authority, he was not prepared
    to make up what the Bell Canada employee would have said or written and then
    decide that it was sufficiently reliable to be admitted as an exception to the
    hearsay rule. He noted that there were two methods used by the police to check
    the accuracy of the traces when a 911 call was made, neither of which had been
    employed in this case. One method was to use the lock-in feature, which the
    police officer receiving the 911 call at the Communication Centre could use to
    keep the line open, even if the caller hung up. The officer dispatched to the
    scene could pick up the phone and confirm with the officer at the Communication
    Centre that the phone was indeed the source of the call. The second method, to
    avoid handling of the receiver at the point of origin, was for the Communication
    Centre to ring back the open line, which the officer on the scene would hear. He
    found that the only reasonable conclusion is that the reason for utilizing one
    of these procedures was to avoid the possibility of a mistake as to the
    location of the source of the 911 call.

[65]

He
    therefore declined to reconsider his ruling.

[66]

I
    now turn to the application judges ruling on the stay application.

II.

The stay ruling

[67]

The
    application judge began his analysis by reviewing the history of the
    proceedings and summarizing the evidence at the two trials at which he had
    presided. He then outlined the new evidence the Crown proposed to adduce at a
    fourth trial  a report by a McMaster University mathematics professor, which
    indicated the probability the payphone booth located at Gate #6 was
not
the place of origin of the 911 call was less than 1 in 150 million. The Crown
    argued that, with this new evidence, its case would be stronger than at the
    previous trials.
[2]


[68]

The
    application judge found, at para. 33, it was unlikely this new evidence would
    be admitted, because the author of the report had assumed that a Bell Canada
    employee reported to police that the 911 call was made from the payphone at
    Gate 6 Dofasco in Hamilton.  He said he had twice ruled he was not prepared
    to first make up the words that were spoken by the Bell Canada employee and
    then rule that such words were admissible.

[69]

The
    application judge then reviewed a number of authorities in which the possibility
    of a third or fourth trial had been considered, including
R. v. Keyowski
,
[1988] 1
    S.C.R. 657
;
R. v. Jack
, [1997] 2 S.C.R. 334, affg (1996),
    113 Man. R. (2d) 260 (C.A.);
R. v. Hunter
(2001), 54 O.R. (3d) 695
    (C.A.);
R. v. L. (A.)
(2004),183 C.C.C. (3d) 193 (Ont. C.A.);
R.
    v. Taillefer
, 2003 SCC 70,
[2003] 3
    S.C.R. 307
;
R. v. Beaulac
,
[1999] 1
    S.C.R. 768
;
R. v. Ellard
, 2009 SCC 27,
[2009] 2
    S.C.R. 19
; and
R. v. Vanezis
(2006), 83 O.R. (3d) 241
    (C.A.).

[70]

He
    concluded, at paras. 50-51, that a fourth trial would be permitted only in a
    very rare case:

As result of these decisions I conclude that it is possible for
    there to be an abuse of process and hence a violation of section 7 of the
    Charter arising solely out of the number of trials that an accused is required
    to face. Prosecutorial misconduct is not a prerequisite. A third trial
    stretches but it does not exceed the limits of the communitys sense of fair
    play. It is only a very rare case where putting an accused in jeopardy with
    respect to a serious charge for the fourth time would not constitute a breach
    of section 7 of the Charter sufficient to warrant a stay of proceedings. An
    appropriate consideration in determining whether a stay of proceedings is
    appropriate is the length of time an accused has spent in custody.

It is proposed that Robert Badgerow be tried for a fourth time
    on the charge that he committed first-degree murder in the death of Diane
    Werendowicz. Therefore, I must decide if this is one of the very rare cases
    where it is justified to require him to proceed with a fourth trial.

[71]

He then referred to
R.
    v. McKenzie
,
[2004] O.J. No.
    3430
(S.C.), in which Abbey J. had
    considered a number of questions bearing on the issue whether proceedings
    should be stayed due to multiple trials, as proposed by Bayda C.J.S. in his dissenting
    judgment in
R. v. Keyowski
(1986), 28 C.C.C. (3d) 553 (Sask. C.A.), affd [1988] S.C.J. No. 28, [1988] 1
    S.C.R. 657. The factors considered by the application judge, and his
    conclusions, are set out below.

(a)
How many
    previous opportunities has the Crown had to present its case to a jury on the
    charge in issue?

[72]

The
    application judge observed the Crown had had three trials of the respondent. It
    was likely that the evidence at the fourth trial would be substantially the
    same as the evidence at the second and third trials, except that  additional
    testimony from the previous trials would have to be read to the jury due to the
    unavailability of witnesses caused by the passage of time. The only significant
    difference from the first trial was that the jury would not hear the
    respondents statement to the police.

[73]

Due
    to pre-trial publicity, a fourth trial would not likely be held in Hamilton,
    with the result that many witnesses, who had previously testified at three
    trials, would be required to travel some distance in order to testify. While some
    of these were police and forensic witnesses (some of whom were retired), many
    were civilians for whom travelling to testify would be a significant
    inconvenience.

(b)
How
    serious is the charge in terms of loss of life, injury, loss of property? Is
    the mental element of the charge one of intent or recklessness?

[74]

The
    charge was the most serious in the
Criminal Code
, but the fact that
    the charge was for first degree murder did not, of itself, make this one of
    those rare cases in which it would not be an abuse of process to require the
    accused to stand trial for a fourth time.

(c)
How
    strong is the Crowns case? Are the chances reasonably good that a fresh jury
    will reach a verdict? Has the Crown overcharged?

[75]

The
    application judge said it was possible a differently constituted jury would be
    able to reach a verdict, but it was equally possible a fourth trial would again
    result in a deadlocked jury.

(d)
Would
    the failure to proceed with the trial before a fresh jury create a danger to
    the public by reason of the accuseds character and background? How strong is
    the possibility of a repetition of the offence by the accused?

[76]

The
    application judge was of the view that the failure to proceed with a fourth
    trial would not place the community in danger.

(e)
What
    punishment in terms of incarceration, emotional stress, pangs of conscience,
    loss of dignity and self-respect, loss of income, legal costs and the like, has
    the accused undergone to this point?

(f)
What is
    the physical and mental health of the accused and what is his ability to withstand
    another trial?

(g)
Has the
    prosecution generally shown fairness and competence in handling the
    proceedings?

[77]

The
    application judge considered the factors dealing with the conduct of the
    prosecution, the effect on the respondents health as a result of the
    proceedings to date and his ability to withstand the stress of a fourth trial to
    be neutral.

(h)
What
    length of time has elapsed since the proceedings were first instituted?

[78]

The
    application judge noted it had been 31 years since the murder of Ms. Werendowicz
    and 14 years had elapsed since the police first arrested the respondent. Of
    those 14 years, the respondent had spent almost 11 years in jail and the rest subject
    to house arrest.

[79]

The
    application judge was not in a position to attribute the delay in perfecting
    the first appeal to either the respondent or the Crown.

(i)
What are
    the views of the complainant?

[80]

The
    victims family wanted a fourth trial.

[81]

The
    application judge found, at para. 82, that a consideration of the remaining factors
    leads to a conclusion that requiring Robert Badgerow to be tried for a fourth
    time on this charge would stretch the communitys sense of fair play and
    decency beyond the breaking point and hence constitute an abuse of process.
    The application judge was particularly concerned that the respondent, who was presumed
    innocent, had spent almost 11 years in jail and had been subject to very
    restrictive bail terms for approximately three years. He summarized the factors,
    at para. 83:

The strength of the Crowns case, at its highest, will not
    improve at a fourth trial. More likely, as result of the death or
    unavailability of other witnesses, the Crowns case will not be as strong as at
    the previous three trials. The community will not be in danger if Robert Badgerow
    does not face a fourth trial. Finally the cost to the community, including
    further inconvenience to witnesses, in proceeding with a fourth trial will be
    significant.

[82]

The application judge therefore concluded, at para. 84, that
    this was not one of those very rare cases in which requiring the respondent
    to stand trial a fourth time would not constitute a breach of s. 7 of the
Charter
and an abuse of process sufficient to warrant a stay of proceedings pursuant to
    s. 24(1). Accordingly, he granted the stay.

III.

The Issues

[83]

I
    will return to the application judges stay decision later in these reasons. To
    put what follows in context, however, it is essential to understand how the
    exclusion of the 911-trace evidence impacted the application judges decision
    on the stay.

[84]

The
    significance of the 911-trace evidence is obvious. The content of the 911 call,
    the respondents physical proximity to the payphone from which the call was
    made, and the presence of his semen in the victim, could permit the jury to
    infer that he made the call and that he was the killer.

[85]

With
    this evidence excluded, however, the respondent was able to suggest that the
    call could have been made by the alternative suspect, who was working in
    another area of the city. At the third trial, defence counsel told the jury
    that it was highly unlikely that the respondent had made the call.

[86]

As
    noted above, in considering whether a stay should be granted, the application
    judge addressed the questions Bayda C.J.S. identified in his dissent in
Keyowski
,
    at pp. 557-58. The first question was How many previous opportunities has the
    Crown had to present its case to a jury on the charge in issue? It is
    noteworthy that in answering that question in the case before him, at pp.
    558-59, Bayda C.J.S. ascribed particular importance to the Crowns previous
    full and unfettered opportunities to present its case:

The most critical factors are contained in the first
    question. At the first trial, the Crown was given a full opportunity to prove
    its case to a trier of fact. There is nothing to indicate that the Crown was
    constrained by time, by a choice of the counsel it wished to retain, or a
    choice of the witnesses it wished to call, or by any other circumstance that
    would deprive it of a full and complete opportunity to prove its case. It
    failed to do so. So the law gave the Crown a second opportunity. Again the
    opportunity was full and complete. Again the Crown failed to prove its case. It
    now asks for a third such opportunity.

The Crown contends that the third opportunity should be allowed
    as a matter of course. Its position is simply that the Crown should not be
    blamed for the two abortive proceedings. The accused is entitled to take the
    same position. But should that sameness in position necessarily result in a draw?
    I think not. The law gives to the Crown full control of the proceedings. The
    Crown chooses the charge to be laid and thus in a real sense chooses its own
    burden of proof. The Crown chooses which witnesses to call; which not to call;
    the order in which they will be called, and the questions they will be asked.
    The Crown decides when it has amassed sufficient evidence to proceed with the
    trial. There really is no aspect of the proceedings over which the Crown does
    not have control, short of the rules of practice and evidence. Thus, of the two
    blameless sides, fair play dictates that it is the Crown side, not the accuseds
    side, which should suffer, if anyone should, by reason of the abortive result
    of the first two trials.

[87]

While Bayda C.J.S. was
    writing in dissent in
Keyowski
, and while the majority decision
to direct a new trial was affirmed by
    the Supreme Court of Canada for slightly different reasons, nothing in the
    Supreme Courts reasons detracts from the above observations.

[88]

Here, the application judge concluded
    that the Crown had had full opportunities at the second and third trials to
    convince the juries of the respondents guilt, but had failed to do so. He also
    concluded it was likely that the evidence at a fourth trial would be
    substantially the same as at the second and third trials.

[89]

The Crown submits it never had a fair
    trial of the respondent because the application judge excluded the 911-trace
    evidence. I would put it slightly differently in light of Bayda C.J.S.s
    reasoning. In my view, the Crown has not had a full and complete opportunity
    to prove its case due to the exclusion of the 911-trace evidence, a factor
    entirely outside its control.

[90]

Had it been given that opportunity, with a full
    evidentiary record, the Crowns case would have been markedly stronger. The
    exclusion of the evidence is also relevant to the third factor in
Keyowski
 the strength of the Crowns case and the
    likelihood that a jury would be able to reach a verdict. See also
Hunter
,  at para. 29.

[91]

Moreover,
    the exclusion of relevant and admissible evidence at the earlier trials would
    impact the analysis of the potential prejudice of a retrial to the integrity of
    the justice system and the balancing of this factor against the interests in a
    final decision
on the merits
, under the analysis mandated by
R. v.
    Babos
, 2014 SCC 16, discussed below.

[92]

For
    these reasons, the admissibility of the 911-trace evidence is the critical
    issue in the analysis of the application judges decision to grant a stay. If
    that evidence was properly excluded, there is no basis on which to interfere
    with the application judges exercise of his discretion to stay the
    proceedings. If, on the other hand, the evidence should have been admitted, its
    exclusion was an error of law and we are required to review the exercise of
    this discretion, taking the availability of that evidence into account.

A.

The Hearsay Issue

Introduction

[93]

In
    its factum, the Crown submitted that the application judge erred in
    characterizing the 911-trace evidence as hearsay and that it should have been
    admitted on a non-hearsay basis. Under this analysis, the 911-trace evidence
    was circumstantial evidence from which a jury could infer that Bell Canada traced
    the call to the payphone at Dofasco Gate #6: see
R. v. Mota
(1979), 46
    C.C.C. (2d) 273 (Ont. C.A.). While not abandoning this argument, counsels
    submissions before this court focused on the reliability of the evidence under the
    principled approach to hearsay.

[94]

For
    the reasons that follow, I conclude that the 911-trace evidence required a
    hearsay analysis under the principled approach established by the Supreme Court
    of Canada in
Khan.
The Crown sought to introduce that evidence to
    prove the Bell Canada call-tester told Hamilton police, We have traced the
    call to a payphone at Dofasco Gate #6. Tendered for the truth of this
    assertion, the evidence raised hearsay dangers. The application judge was
    required to determine its necessity and its threshold reliability. He was also
    required to determine whether the respondent would have a fair opportunity to
    test the evidence at trial and whether its prejudicial effect outweighed its
    probative value. Had this analysis been undertaken, as I respectfully suggest
    it should have been, the evidence ought to have been admitted, based on the
    evidentiary record on the
voir dire
.

[95]

I
    will begin by reviewing the reasons for the hearsay rule and the modern
    approach to hearsay in Canada.

The Principled Approach to Hearsay

[96]

Although
    a universal definition of hearsay is elusive, hearsay is often identified by
    its characteristics: (a) it is adduced for the truth of its contents; and (b)
    there is an absence of a contemporaneous opportunity to cross-examine the
    declarant in court and under oath:
R. v. Baldree
, 2013 SCC 35, 298
    C.C.C. (3d) 425,

at para. 30;
Khelawon
,

at paras. 35-41.

[97]

The
    rule against hearsay, and the principled approach to hearsay, have been topics
    of many recent decisions of the Supreme Court of Canada
.
The starting
    point of any evidentiary analysis is that all relevant evidence is admissible:
Khelawon
at para. 34. Hearsay, however, is presumptively inadmissible because it is
    unreliable: it is not subject to contemporaneous cross-examination; it is not
    given under oath; and the trier of fact is not able to observe the declarant:
R.
    v. U. (F.J.)
, [1995] 3 S.C.R. 764;
Baldree
,

at paras.
    31-32;
Starr
, at para. 159. Trial fairness is compromised by the
    admission of hearsay, because the party against whom it is introduced has no
    means of testing the reliability of the evidence and there is a real risk the
    jury will give it more weight than it deserves:
Starr
,

at
    paras. 159, 199;
Khelawon
, at para. 47.

[98]

The
    Supreme Court noted in
Baldree
, at para. 44, that the courts have
    identified a variety of concerns about hearsay, referred to as the core
    hearsay dangers of perception, memory, narration, and sincerity. At para. 32,
    Fish J. explained:

First, the declarant may have
misperceived
the facts
    to which the hearsay statement relates; second, even if correctly perceived,
    the relevant facts may have been
wrongly remembered
; third, the
    declarant may have narrated the relevant facts in an
unintentionally
    misleading manner
; and finally, the declarant may have
knowingly made
    a false assertion
. The opportunity to fully probe these potential sources
    of error arises only if the declarant is present in court and subject to
    cross-examination. [Emphasis in original.]

[99]

These
    concerns have informed the principled approach. That approach, developed in a
    line of decisions of the Supreme Court of Canada, beginning with
Khan
,
    recognizes that a rigid application of the exclusionary rule would result in
    the unwarranted loss of much valuable evidence:
Khelawon
,

at
    para. 42. It permits hearsay evidence not falling within a traditional
    exception to be admitted, provided its admission is necessary and it has
    sufficient indicia of reliability or there are sufficient means to test the
    evidence to compensate for the inability to cross-examine: see
Khelawon
,

at paras. 62-63, 105;
Khan
; and
R. v. Smith
, [1992] 2
    S.C.R. 915.

[100]

Even if the
    evidence meets these requirements, the trial judge retains discretion to
    exclude it for reasons of trial fairness if its prejudicial effect outweighs
    its probative value:
Khelawon
,

at paras. 3, 49.

[101]

In
Khelawon
,

at para. 2, Charron J. summarized the approach:

When it is necessary to resort to evidence in this form, a
    hearsay statement may be admitted if, because of the way in which it came about,
    its contents are trustworthy, or if circumstances permit the ultimate trier of
    fact to sufficiently assess its worth. If the proponent of the evidence cannot
    meet the twin criteria of necessity and reliability, the general exclusionary
    rule prevails. The trial judge acts as a gate-keeper in making this preliminary
    assessment of the threshold reliability of the hearsay statement and leaves
    the ultimate determination of its worth to the fact finder.

[102]

At para. 3 of
Khelawon
,
    she described the different roles of the judge and jury in the determining the
    threshold reliability and the ultimate reliability of the statement and the
    responsibility of the judge in determining admissibility:

The distinction between threshold and ultimate reliability
    reflects the important difference between admission and reliance. Admissibility
    is determined by the trial judge based on the governing rules of evidence.
    Whether the evidence is relied upon to decide the issues in the case is a
    matter reserved for the ultimate trier of fact to decide in the context of the
    entirety of the evidence. The failure to respect this distinction would not
    only result in the undue prolongation of admissibility hearings, it would
    distort the fact-finding process. In determining the question of threshold
    reliability, the trial judge must be mindful that hearsay evidence is
    presumptively
inadmissible
. The trial judges function is to guard
    against the admission of hearsay evidence which is unnecessary in the context
    of the issue to be decided, or the reliability of which is neither readily
    apparent from the trustworthiness of its contents, nor capable of being
    meaningfully tested by the ultimate trier of fact. In the context of a criminal
    case, the accuseds inability to test the evidence may impact on the fairness
    of the trial, thereby giving the rule a constitutional dimension. Concerns over
    trial fairness not only permeate the decision on admissibility, but also inform
    the residual discretion of the trial judge to exclude the evidence even if necessity
    and reliability can be shown. As in all cases, the trial judge has the
    discretion to exclude admissible evidence where its prejudicial effect is out
    of proportion to its probative value. [Emphasis in original.]

Admissibility of the 911-Trace Evidence


[103]

I now turn to the
    admissibility of the 911-trace evidence under the principled approach.

Is the evidence relevant?

[104]

The evidence
    sought to be adduced  to support the inference the police were dispatched to
    Dofasco Gate #6 because Bell Canada traced the 911 call to a payphone at that
    location  is irrelevant on its own. It would become relevant, however, if the
    jury made two other findings available on the evidence: (1) the caller had some
    information known only to the police and the killer; and (2) at the time the
    911 call was made, the respondent was working in a building adjacent to the payphone.

[105]

Given the
    availability of these findings, and the undisputed DNA evidence linking the
    respondent to the victim, the 911-trace evidence is highly relevant to the
    issue whether the respondent was the killer.

Is the evidence hearsay?

[106]

Hearsay
    typically consists of spoken words. It can, however, consist of conduct. Such
    conduct can be of two kinds  assertive conduct and non-assertive conduct. This
    appeal concerns the latter, but I will briefly discuss both types.

[107]

Assertive
    conduct refers to non-verbal conduct that is
intended
as an assertion.
    Some examples include: nodding the head (indicating yes -
Chandrasekera
    v. The King
, [1937] A.C. 220 (P.C.)); pointing to someone (hes the one
    who did it -
R. v. Underwood
, 2002 ABCA 310, 130 C.C.C. (3d) 500);
    pointing at something (thats it -
R. v. Perciballi
(2001),

54
    O.R. (3d) 346 (C.A.)); shrugging the shoulders (I dont know); or showing
    something to someone, without accompanying words (
R. v. MacKinnon
,
    2002 BCCA 249, 165 C.C.C. (3d) 73). In these cases, the conduct is tendered in
    evidence to prove the truth of an assertion. The trier of fact must determine
    the meaning of words the declarant intended to convey by the conduct.

[108]

A hearsay
    analysis is clearly required and can readily be applied to assertive conduct. Thus,
    under Rule 801(a) of the
Federal Rules of Evidence
in the United
    States, hearsay is defined as including not only oral and written assertions,
    but also nonverbal conduct, if the person intended it as an assertion.

[109]

We are faced
    here with the more challenging issue whether non-assertive conduct is
    hearsay. This term describes conduct, whether by words or deeds or both, from
    which the trier is asked to infer a statement based on the declarants
    belief. As McCormick put the question, does apparent belief translated into
    action stand in any better case as respects the hearsay rule than apparent belief
    translated into statements? (emphasis omitted): Charles T. McCormick, The
    Borderland of Hearsay (1930) 39 Yale L. J. 489, at p. 491.

[110]

In
Baldree
,
    the Supreme Court addressed part of this issue

the question of implied assertions or the unintended implications of
    speech. These expressions refer to statements made by a declarant that are
    sometimes treated as circumstantial evidence of the declarants belief.

[111]

The
    circumstances of
Baldree
were not unusual. In the course of
    investigating a break-in at Baldrees apartment, police discovered a quantity
    of marijuana and cocaine, which they seized, along with a cell phone and cash.
    Baldree was arrested and charged with possession of the drugs for the purpose
    of trafficking. After he had been taken to a police station, his cell phone
    rang and one of the officers answered it. The caller asked to speak to Baldree,
    whom he identified by name. He said he wanted an ounce of weed. The officer
    asked how much Baldree charged him, and the caller said $150. The officer said
    he would deliver the drugs. He did not in fact have any further contact with
    the caller.

[112]

The trial judge
    permitted this evidence to be adduced, concluding it was circumstantial
    evidence Baldree was engaged in trafficking.

[113]

This court, Watt
    J.A. dissenting, allowed an appeal and ordered a new trial: 2012 ONCA 138, 109
    O.R. (3d) 721. Feldman J.A. found a hearsay analysis should apply to both
    express and implied assertions: see
R. v. Kearley
, [1992] 2 A.C. 228
    (H.L.); and
R. v. Wilson
(1996), 29 O.R. (3d) 97 (C.A.). She concluded
    the telephone call was hearsay, was inadmissible under the principled approach
    and its prejudicial effect outweighed its probative value. Blair J.A. concurred
    in the result. However, he did not decide whether the evidence was hearsay. He
    held that, whether or not the evidence was hearsay, it required a
    necessity/reliability analysis and an assessment of its prejudicial effect
    against its probative value. In his view, applying those tests, the evidence
    was inadmissible.  Watt J.A. agreed with the trial judge that the evidence was
    not hearsay and a principled analysis was unnecessary. The evidence was not
    adduced to prove the truth of its contents, but as circumstantial evidence to
    show Baldree was engaged in trafficking. The prejudicial effect of the evidence
    did not outweigh its probative value.

[114]

In the Supreme
    Court, the evidence was viewed by the majority as an implied assertion that
    Mr. Baldree sells drugs. The majority held an implied assertion, tendered for
    the truth of its contents, stands on the same footing as an express assertion
    to the same effect. The majority rejected a formalistic analysis in favour of
    the courts purposive approach to the hearsay rule (at para. 42), holding
    that the need for a functional approach to implied assertions is readily
    apparent, bearing in mind the core hearsay dangers of perception, memory,
    narration, and sincerity (at para. 44).

[115]

The majority
    noted, at para. 45, the hearsay danger of insincerity may be reduced in the
    case of implied assertions, because the declarant has no intention of making an
    assertion:

It has been argued that the danger of lack of sincerity is
    sometimes diminished for implied assertions. This is because [i]f a declarant
    possesses no intention of asserting anything, it would seem to follow that he
    also possesses no intention of misrepresenting anything: P. R. Rice, Should
    Unintended Implications of Speech be Considered Nonhearsay? The
    Assertive/Nonassertive Distinction Under Rule 801(a) of the Federal Rules of
    Evidence (1992), 65
Temp. L. Rev.
529, at p. 531.

[116]

However, it
    noted the other hearsay dangers  misperception, memory and ambiguity or
    narration  remain, and may actually increase in the case of implied hearsay.
    Moreover, the danger of insincerity may be present if the declarant intentionally
    conveys a false message.

[117]

The majority in
Baldree
concluded, at para. 48, that there was no reason not to treat express and
    implied assertions in the same way:

Accordingly, there is no principled reason, in
    determining their admissibility, to distinguish between express and implied
    assertions adduced for the truth of their contents. Both function in precisely
    the same way. And the benefits of cross-examining the declarant are not
    appreciably different when dealing with one form of testimony than the other.
    If an out-of-court statement implicates the traditional hearsay dangers, it
    constitutes hearsay and must be dealt with accordingly.

[118]

Ultimately,
    applying the principled approach, the majority held the necessity requirement had
    not been met, because the police made no attempt to procure the evidence of the
    declarant  the would-be drug purchaser who made the telephone call. Moreover,
    without cross-examination, it could not be said that the belief expressed in a
    single telephone call was sufficiently reliable.

[119]

Moldaver J.
    wrote separate concurring reasons. Although he agreed a principled hearsay
    analysis was required, and the evidence was inadmissible under that analysis,
    he considered that the majority reasons placed too much emphasis on the necessity
    requirement. He concluded on this point, at para. 109:

At bottom, the point is that the necessity
    criterion is not meant to stifle the admission of reliable evidence. Rather, it
    is founded on societys interest in getting at the truth (
Khelawon
, at para. 49). Necessity should be viewed as a servant of the truth,
    not its master. For that reason, in cases such as this one -- where the
    prospect of locating, identifying, and receiving accurate information from a
    forthcoming and cooperative caller is remote -- if the evidence is reliable, it
    should be admitted because its reception into evidence will be necessary in
    order to get closer to the truth. If the evidence is not reliable, it should be
    excluded. Either way, in my view, the focus should be reliability.

[120]

In
Baldree
,
    the Supreme Court of Canada expressly left for future consideration the issue whether
    the hearsay rule applies to assertions implied through non-verbal conduct,
    sometimes referred to as inferred assertions or non-verbal unintended assertions.
    The majority stated, at para. 63:

The issue of the applicability of the hearsay
    rule to inferences that can be drawn from non-verbal conduct is best left for
    another day. For present purposes, I find it sufficient to say that one can
    engage in conduct without ever intending to communicate
anything
to
anyone
, [but t]he same is not true of
    speech or a combination of speech and conduct (for example, placing a bet)
    because the sole purpose of speech is communication: Rice, at p. 536. [Emphasis
    in original.]

[121]

This case raises
    that issue. The 911-trace evidence was tendered as an implied assertion that
    the police believed the 911 call had been traced to the payphone at Dofasco
    Gate #6 and that the belief was true.

[122]

The subject has been
    much discussed in the academic literature, but less so in the case law. One
    classic example, among several mentioned in

the speech of Baron Parke
    in
Wright v. Doe d. Tatham
(1837), 7 Ad. & E. 313, 112 E.R. 488
    (Exch. Ch.), at p. 526, is the conduct of a deceased captain, on a question of
    seaworthiness, who, after examining every part of the vessel, embarked on it
    with his family. Clearly, the captains statement I think this ship is
    seaworthy would be hearsay if adduced to prove the truth of his belief. Is
    proof of his conduct, as circumstantial evidence of his belief in the ships
    seaworthiness, inadmissible on the same ground?

[123]

Another example
    comes from the facts of
Wright v. Doe
itself. The issue was
    testamentary capacity. It was sought to introduce in evidence letters written
    to the testator by several people, some of whom were deceased, who wrote in
    terms indicating they considered him capable of understanding ordinary business
    affairs. The evidence might have been regarded as circumstantial evidence that
    the testator was sane, because others who knew him treated him as being of
    sound mind. However, the evidence was excluded as hearsay.

[124]

In the United
    States, the Advisory Committee on the Federal Rules of Evidence
[3]
noted in 1972 that some hearsay
    dangers exist when evidence of non-verbal conduct is tendered to show the
    actors belief

as a basis to infer the truth of the that belief:

It can scarcely be doubted that an assertion made in words is
    intended by the declarant to be an assertion. Hence verbal assertions readily
    fall into the category of statement. Whether nonverbal conduct should be
    regarded as a statement for purposes of defining hearsay requires further
    consideration. Some nonverbal conduct, such as the act of pointing to identify
    a suspect in a lineup, is clearly the equivalent of words, assertive in nature,
    and to be regarded as a statement. Other nonverbal conduct, however, may be
    offered as evidence that the person acted as he did because of his belief in
    the existence of the condition sought to be proved, from which belief the
    existence of the condition may be inferred. This sequence is, arguably, in
    effect an assertion of the existence of the condition and hence properly
    includable within the hearsay concept. See Morgan, Hearsay Dangers and the
    Application of the Hearsay Concept, 62 Harv. L. Rev. 177, 214, 217 (1948), and
    the elaboration in Finman, Implied Assertions as Hearsay: Some Criticisms of
    the Uniform Rules of Evidence, 14 Stan.L.Rev. 682 (1962).

[125]

The Committee decided, however, that the hearsay danger of sincerity is
    reduced in the case of non-verbal conduct, because the actor does not generally
    intend to deceive an observer. It confirmed:

Admittedly evidence of this character is untested with respect
    to the perception, memory, and narration (or their equivalents) of the actor,
    but the Advisory Committee is of the view that these dangers are minimal in the
    absence of an intent to assert and do not justify the loss of the evidence on
    hearsay grounds. No class of evidence is free of the possibility of
    fabrication, but the likelihood is less with nonverbal than with assertive
    verbal conduct. The situations giving rise to the nonverbal conduct are such as
    virtually to eliminate questions of sincerity. Motivation, the nature of the
    conduct, and the presence or absence of reliance will bear heavily upon the
    weight to be given the evidence. Falknor, The Hear-Say Rule as a See-Do
    Rule: Evidence of Conduct, 33 Rocky Mt. L. Rev. 133 (1961). Similar
    considerations govern nonassertive verbal conduct and verbal conduct which is
    assertive but offered as a basis for inferring something other than the matter
    asserted

This assumption has been criticized by some authors:
    see,
e.g.
, Rices article cited in
Baldree
.

[126]

McCormick
    foresaw the issue, and advocated a principled approach, in his 1930 Borderland
    of Hearsay article. He criticised the rigidity of the hearsay rule and its exceptions
    and proposed a simple rule: Hearsay is inadmissible except where the judge in
    his discretion finds it needed and trustworthy. He suggested, at p. 504, that
    the principled approach should be applied to conduct adduced to show the
    actors belief and thus the truth of the fact believed:

It would seem sensible to conclude that conduct (other than
    assertions) when offered to show the actors beliefs and hence the truth of the
    facts so believed, being merely analogous to and not identical with typical
    hearsay, ought to be admissible whenever the trial judge in his discretion
    finds that the action so vouched for the belief as to give reasonable assurance
    of trustworthiness.

[127]

In the most
    recent edition of
McCormick on Evidence
, Seventh Ed. by Kenneth S.
    Broun (Thomson Reuters, 2013), at § 250, it is suggested that McCormicks
    earlier opinion was a transitional one and that non-assertive conduct can be
    excluded from the operation of the hearsay rule, with issues such as
    perception, memory and reliance going to weight, rather than admissibility. The
    authors suggest that because there is usually no intent to communicate by such
    conduct, there is minimal risk of intent to deceive and the inability to
    cross-examine on matters of perception and memory can go to weight.

[128]

To the extent
    the issue has been considered in Canada, the cases have tended to regard
    non-assertive conduct as outside the scope of the hearsay rule. The cases are
    summarized in Professor Hamish Stewart,
Halsburys Laws of Canada: Evidence,
First Ed. (Markham: LexisNexis, 2010), at para. HEV-83:

Hearsay by conduct. Conduct, to the extent that it is premised
    on a belief about the truth of a fact, might be seen as hearsay if offered to
    prove that fact. However, Canadian courts have been reluctant to accept this
    line of reasoning. The Ontario Court of Appeal has restricted the concept of
    hearsay by conduct to actions or behaviour which are themselves means of
    expression, such as shrugs, headshakes or other gestures that are a substitute
    for or supplement to oral communication [
R. v. McKinnon
(1989), 33
    O.A.C. 114 (C.A.), at para. 17]. The British Columbia Court of Appeal has held
    that hearsay may include conduct which conveys meaning, but held that a
    womans taking a gram of marijuana from her purse and handing it to a police
    officer was not equivalent to a statement that she had obtained it from the
    accused a few minutes earlier [
MacKinnon
, at paras. 33, 39]. In a
    similar vein, Canadian courts have generally rejected the argument that
    behaviours by a complainant in a sexual assault case that are said to indicate
    sexual abuse should be construed as hearsay; instead, such evidence is
    circumstantial evidence tending to confirm the Crowns allegation that the
    complainant was assaulted. [
R. v. D. (G.N.)
(1993), 81 C.C.C. (3d) 65
    (Ont. C.A.), leave to appeal to S.C.C. refused, [1993] S.C.C.A. No. 257; and
R.
    v. C.(F.)
(1996), 104 C.C.C. (3d) 461 (Ont. C.A.).]

[129]

In the decision
    of this court in
McKinnon
, a murder victim had been found buried in a
    remote area in Northern Ontario. There was evidence that the police officers
    who discovered the body were accompanied by the appellants wife. There was no
    evidence of communications between the police and the wife, but the accused
    argued that the evidence should not have been admitted because the jury might
    have inferred that the wife had led the police to the location of the grave and
    that she, in turn, must have learned the location from her husband. Not unlike
    this case, the evidence could have been relied upon as an implied assertion by
    the wife, This is where the body is buried, or by the police, We believe the
    body is buried here because the accuseds wife told us it was.

[130]

The trial judge
    had ruled the wife could not testify at the instance of the Crown and could not
    testify as to what, if anything, she had said to the police.

[131]

The Crown said
    it wanted to adduce the evidence of the wifes presence to negative the suggestion
    that police had obtained information concerning the location of the grave from
    an intended accomplice whom the defence suggested was the killer.

[132]

This court held
    the evidence was not hearsay. In so doing, Finlayson J.A. appears to have limited
    this aspect of the hearsay rule to assertive non-verbal conduct, at para. 17:

In the first place, her presence was a fact and was part of the
    police officers testimony as to the search and discovery, which search and
    discovery surely was a relevant fact in the light of the Crown's theory of the plan
    to kill and hide the body. In the second place, her presence in the manner
    described cannot be characterized as hearsay by conduct. It has always been my
    understanding that such hearsay usually amounted to a description of actions or
    behaviour which are themselves means of expression, such as shrugs, headshakes,
    or other gestures that are a substitute for or supplement to oral
    communication. Evidence of such conduct is tendered as evidence of an assertion
    by the person who performed the action. As such, it is inadmissible hearsay. On
    the facts of this appeal I see nothing in the evidence about the wifes
    accompanying the police officers to the gravesite which amounts to an assertion
    or a statement that she received information about its location from her husband,
    from her husband alone, and from no other source. The evidence is not tendered
    as evidence of an assertion by the wife. [I]t is not hearsay. For a fuller
    discussion, see
McCormick on Evidence
, 3rd ed. (1984), at pp. 736-742.

[133]

Other cases,
    including the decision of the British Columbia Court of Appeal in
MacKinnon
,
    referred to by Professor Stewart, and the decision of this court in
Mota,
while
    considering the possibility of a hearsay analysis, have treated evidence of
    conduct as circumstantial evidence as opposed to hearsay. Similarly, in the two
    sexual assault cases referred to by Professor Stewart, the unusual conduct of a
    child victim after the alleged assault was treated not as hearsay but as
    evidence confirming the child had been exposed to sexual behaviour of an adult:
    see
D. (G.N.)
; and
C. (F.)
, at para. 45, per Weiler J.A.

[134]

For the purposes
    of this case, it is unnecessary to state a general principle as to whether
    inferences from non-verbal conduct should be treated as hearsay. I suggest,
    however, that a principled case-by-case approach may be appropriate, depending
    on the nature of the conduct, the presence or absence of hearsay dangers and concerns
    with respect to trial fairness due to the inability to cross-examine the
    declarant or other witnesses. See Alan W. Bryant, Sidney N. Lederman &
    Michelle K. Fuerst,
Sopinka, Lederman & Bryant, The Law of Evidence in
    Canada
, Third Ed. (Markham: LexisNexis, 2009), at para. 6.55; and
Khelawon
, at para. 93.

[135]

In this case, I
    would apply the principled approach. It focuses the analysis on whether the
    inferences to be drawn from the conduct, or the implied assertions, are
    sufficiently reliable to be left with the jury and whether there are sufficient
    means to test the evidence to ensure the process is fair to the respondent.

Is the evidence necessary?

[136]

The necessity requirement is based on the societal interest in getting
    at the truth:
Khelawon
,

at para. 49.
    Hearsay is admitted, despite the inability to cross-examine the maker, because
    it is the only way in which the evidence can be obtained.

[137]

The Crown submits the 911-trace evidence is necessary due to the
    inability to locate some witnesses and the inability of other witnesses to recall
    material events. The Bell Canada call-tester could not be located, in spite of
    considerable effort. Due to the passage of time, Sergeant Jachymek could not
    recall what, if anything, the call-tester told him. Although some witnesses are
    available and have recollections, and the recording of the 911 calls and conversations
    in the Communication Centre is available, there are gaps in the chain of
    communication. These gaps can to some extent be filled by evidence of the
    practices followed by police and Bell Canada in tracing 911 calls in 1981, but
    there is no direct evidence of some of the communications leading to the
    dispatch of the police to Dofasco Gate #6.

[138]

The necessity of
    the evidence was conceded by the respondent before the application judge and in
    this court. As the application judge noted, both Bell Canadas written record
    of the trace and the police report of the request for the trace were
    unavailable. He found that due to the passage of time the documents could not
    be located or they had been lost or destroyed.

[139]

In view of the
    time elapsed between the killing and the trial, the unavailability of
    contemporaneous records, and the concession of counsel, I am satisfied that the
    911-trace evidence meets the necessity requirement. Moreover, as was noted in
Baldree
,
    at para. 72, the criteria of necessity and reliability work in tandem: if the
    reliability of the evidence is sufficiently established, the necessity requirement
    can be relaxed. See also
Khelawon
,

at paras. 46, 83;
R.
    v. B. (K.G.)
,
[1993] 1 S.C.R. 740
; and
U.
    (F.J.)
.

[140]

As a
    consequence, the key issue is the reliability of the 911-trace evidence.

Is the evidence reliable?

[141]

The application judge made two significant findings of fact concerning
    Bell Canadas tracing process:
[4]

·

the 911 system in place in Hamilton in 1981 was designed and
    implemented to accurately trace the source of incoming 911 calls to the
    Hamilton Police Communication Cent[re]; and

·

Bell Canada employees involved in the tracing of 911 calls, in
    all likelihood, performed their responsibilities accurately.

As noted, however, he was not prepared to draw the
    conclusion that the call-tester told the police the call had been traced to
    Dofasco Gate #6.

[142]

The respondent concedes there is no evidence that mechanical or
    computer error could have compromised the process for tracing the 911 call. His
    core submission is that the process used to trace the call required human input
    at various stages and the implied assertion by Bell Canada, We have traced the
    call to a payphone at Dofasco Gate #6, could have been the product of any
    number of human errors in Bell Canadas tracing process.

Narration and Ambiguity

[143]

The application judges fundamental concern about the admissibility of
    the 911-trace evidence was the narration danger  the danger of ambiguity in
    the statement to be implied from the conduct. He thought
the Bell Canada
    call-tester might have only identified the phone booth outside Dofasco Gate 6
    as a possible but not a definite location of the origin of the 911 call (at
    para. 17).

[144]

The respondent does not really dispute that a jury could infer from the
    911-trace evidence that Bell Canada traced the phone call to the payphone at
    Dofasco Gate #6. Like the application judge, however, he suggests that Bell
    Canadas statement to the police could have been qualified  such as, it could
    have been a payphone at Dofasco or any one of a number of payphones in the area;
    you should check it out.

[145]

The danger of ambiguity is not unique to assertions implied from
    non-verbal conduct. It can arise in the case of assertive conduct, implied
    assertions (
Baldree
) and indeed ordinary hearsay.

[146]

Before admitting
    evidence of a hearsay statement, the judge must be satisfied that it can be
    sufficiently proven to enable the jury to determine the content of the
    declaration. The issue is illustrated by incomplete utterances:
R. v.
    Ferris
, [1994] 3 S.C.R. 756, affg (1994), 149 A.R. 1 (C.A.). In
Ferris
,
    the accused was overheard saying I killed David. However, the listener did
    not hear what was said immediately before or immediately after the utterance. The
    declarant might have said, for example, there are people saying I killed
    David, but I swear on my mothers grave I didnt. Sopinka J., in a brief oral
    judgment, said that [the statements] meaning was so speculative and its
    probative value so tenuous that the trial judge ought to have excluded it on
    the ground its prejudicial effect overbore its probative value.

[147]

The decision of
    this court in
R. v. Esrabian
, 2013 ONCA 761, 313 O.A.C. 273, provides
    an example of the exclusion of an implied assertion due to the danger of
    ambiguity. In that case, it was alleged that the accused and one Yegin had been
    recruited by a cocaine dealer, Saleh, to murder another dealer. According to
    the Crowns case, Yegin had taken the victim to a remote location, where he was
    shot by either the accused or Saleh. Yegin refused to testify at the accuseds
    trial and the Crown relied on various statements he had made, as well as his
    evidence at the preliminary inquiries of the accused and Saleh.

[148]

In some of the
    statements, which were admitted at trial under the principled exception to the
    hearsay rule, Yegin had said that two or three months after the murder, Saleh
    had told him he wanted to move the victims body because he did not trust the
    accused. Yegin also said that Saleh had asked him to kill the accused. The
    accused sought a jury instruction that these statements implied he was not a
    party to the killing.

[149]

This court held,
    at paras. 44-46, that neither necessity nor reliability had been established
    with regard to this inference from Salehs statements. The evidence of an
    implied assertion was not reliable because it was capable of more than one
    meaning:

To the extent that the appellant offers the statements as
    implied assertions by Saleh that the appellant was not a participant in the
    plan to murder Hassan, those statements are now classified as hearsay and were
    admissible only if the necessity and reliability criteria were met:  [
Baldree
,
    at paras. 44-54].  Neither criterion is met.

The defence did not attempt to call Saleh or offer any
    explanation for an inability to call Saleh.  Necessity is not
    demonstrated.

Nor is the evidence sufficiently reliable as an implied
    assertion that the appellant was not involved in the plan to execute the
    deceased to justify its admission into evidence.  Reading an implied
    assertion into Salehs comments to the effect that the appellant was not involved
    in the killing is no more tenable a reading of those statements than one
    implying that the appellant was involved, but could no longer be trusted. The
    nature of the statements simply does not allow any reliable conclusion as to
    the implied assertion, if any, contained in the statements.  Any
    determination as to what, if anything, Saleh implied about the appellants
    involvement in the murder in his statements to Yegin would be entirely
    unreliable absent any opportunity to question Saleh under oath.

[150]

In contrast to
    these cases, in my respectful view, the inability of the application judge to
    determine the
precise
content of the statement made by the call-tester
    to the police should not have foreclosed a reliability analysis in this case.

[151]

There was expert
    evidence that Bell Canadas tracing procedure was not capable of identifying a
    possible location or multiple locations  it either identified a location or
    it did not. As well, the application judge had found, in his ruling on the
    911-trace evidence at the second trial, that the Bell Canada employees involved
    in tracing the 911 call had, in all likelihood, performed their
    responsibilities properly. Moreover, the conduct of the police did not suggest
    any ambiguity about Bell Canadas response. There was evidence that following the
    call from Bell Canada, a call was immediately placed to Dofasco asking for
    confirmation there was a payphone at Gate #6 and asking that no one be
    permitted to use it until police arrived. There was no evidence that inquiries were
    made about other phones in the area or anywhere else. A police car was
    dispatched
only
to Dofasco Gate #6 and not to any other location. When
    police arrived at Gate #6 they acted with deliberation.  Wire cutters were used
    to sever the cord of the telephone handset for forensic analysis. Police
    officers searched the adjacent building for the caller. These actions were
    consistent with the belief that the 911 call was made from the payphone and
    inconsistent with a belief that it was made from some other place.

[152]

In my view, in
    concluding that the Bell Canada call-tester may have reported a possible but
    not definite location, the application judge engaged in speculation that had
    no support in the evidence.

[153]

Thus, there was
    evidence from which a jury could properly conclude: the 911 call was traced to
    the payphone at Dofasco Gate #6; it could not have been a possible trace; and
    there was no potential uncertainty or ambiguity in the report of the call. As I
    will explain, there were also circumstantial guarantees of the reliability of
    the 911-trace evidence and other evidence corroborative of its reliability.

Perception,
    Memory and Sincerity

[154]

Concerns about
    the declarants perception and memory are not engaged here.  Nor is sincerity a
    concern, because there is no possibility that the conduct in question was
    intended to mislead those who observed it.

Circumstantial
    Guarantees of Reliability

[155]

There are, as well, significant circumstantial guarantees of the trustworthiness
    of the 911-trace evidence. The 911 call, its tracing and the police response
    were part of a routine process that had been established for the very purpose
    of accurately tracing a 911 call to the correct address in order to locate and
    respond to the emergency. A 911 call is sometimes  perhaps frequently  a life
    and death situation and emergency responders have to be able to find the source
    of the call if the caller is unable to provide it or the call is interrupted.
    Those involved would have been highly motivated to ensure that the trace and
    the communication of its results were accurate. The response in this case was
    typical. Because neither the police nor Bell Canada had any knowledge of the
    respondents connection to the victim, there would have been no reason to
    distort the results to implicate him, even subconsciously.

[156]

Not unlike some of the traditional hearsay exceptions, therefore, the
    circumstances surrounding the conduct in question, culminating in the dispatch
    of a police cruiser to Gate #6, provide a measure of confidence in the
    reliability of the inference to be drawn from that conduct.

Corroboration

[157]

At the second
    trial, the application judge rejected the Crowns argument, founded on
Khelawon
,
    that the 911-trace evidence was reliable because it was corroborated by the
    respondents proximity to the payphone. He described this as circular
    reasoning. With respect, I disagree.

[158]

In
Khan
,
    the hearsay evidence was a 3½-year-old childs spontaneous report of sexual
    assault, shortly after a visit to the doctors office. In finding the statement
    admissible under the principled approach, McLachlin J. said it was necessary
    (the trial judge having found the child was not competent to testify under oath
    nor could she give unsworn evidence) and reliable, because, among other things,
    it was corroborated by real evidence, at p. 548:

I conclude that the mothers statement in the case at bar
    should have been received. It was necessary, the childs viva voce evidence
    having been rejected. It was also reliable. The child had no motive to falsify
    her story, which emerged naturally and without prompting. Moreover, the fact
    that she could not be expected to have knowledge of such sexual acts imbues her
    statement with its own peculiar stamp of reliability.
Finally, her
    statement was corroborated by real evidence
. [Emphasis added.]

[159]

The evidence was
    a wet spot on the childs clothing, observed by her mother immediately after
    the child had been left alone with the doctor for a few minutes. Subsequent
    testing revealed the presence of semen and saliva. This evidence was, quite
    obviously, corroborative of the childs statement.

[160]

In
Smith
,
    decided two years after
Khan
, however, Lamer C.J. observed, at p. 933,
    that notwithstanding the comments in
Khan
, the reliability analysis
    was entirely a function of the circumstances under which the statement in
    question was made. Despite the evolution of an exception to this principle in
    the case of prior inconsistent statements (see
U. (F.J.)
), the
    majority in
Starr
confirmed that while corroboration was something for
    the trier of fact to consider in determining the ultimate reliability of the
    evidence, it should not enter into the determination of threshold reliability.

[161]

However, in
Khelawon
the Supreme Court of Canada revisited its observations in
Starr
concerning
    the use of corroborating or conflicting evidence in assessing the threshold
    reliability of hearsay.

[162]

In that case,
    five elderly residents of a retirement home had made statements claiming they
    had been assaulted by the manager of the home. By the time of trial, four
    complainants had died of natural causes and the fifth was no longer competent
    to testify. All five complainants had given videotaped statements to the
    police, but only one had testified at the preliminary hearing. The trial judge
    had admitted all of the statements, finding they were reliable, largely on the
    basis of striking similarities between them, and ultimately convicted the accused
    on charges relating to two complainants.

[163]

The majority in
    this court ruled the statements should have been excluded and acquitted him.
    Blair J.A., dissenting, would have upheld the conviction in relation to one
    complainant. The Crowns appeal was with respect to only that complainant.

[164]

Charron J.,
    giving the unanimous judgment of the seven-member panel of the Supreme Court,
    stated that corroborative evidence could be considered in the reliability
    analysis, effectively overruling previous authority to the contrary (at para.
    4):

As I will explain, I have concluded that the factors to be
    considered on the admissibility inquiry cannot be categorized in terms of
    threshold and ultimate reliability.
Comments to the contrary in previous
    decisions of this Court should no longer be followed. Rather, all relevant
    factors should be considered including, in appropriate cases, the presence of
    supporting or contradictory evidence.
In each case, the scope of the
    inquiry must be tailored to the particular dangers presented by the evidence
    and limited to determining the evidentiary question of admissibility. [Emphasis
    added.]

[165]

On the facts, she
    held the statement should not have been admitted, because the circumstances in
    which it came about did not provide assurances of its inherent reliability.
    Moreover, the unavailability of the declarant for cross-examination posed
    significant limitations on the accuseds ability to test the evidence and, in
    turn, on the trier of facts ability to properly assess its worth (para. 7).

[166]

At para. 52,
    Charron J. observed that while the judge determining the admissibility of the
    statement does not determine whether a trier of fact will ultimately rely upon
    the statement as true, it is not so clear that in every case threshold
    reliability is
not
concerned with whether the statement is true or not
    (emphasis in original). .

[167]

She continued,
    at para. 54, noting that in
Khan
the semen stain was a piece of
    evidence that went to the threshold reliability of the childs statement:

Much of the confusion in this area of the law has arisen from
    this attempt to categorically label some factors as going only to ultimate
    reliability. The bar against considering corroborating or conflicting evidence,
    because it is only relevant to the question of ultimate reliability, is a
    further example. Quite clearly, the corroborative nature of the semen stain in
Khan
played an important part in establishing the threshold reliability of the
    child's hearsay statement in that case.

[168]

Later in her reasons,
    Charron J. returned to the observations in
Starr
concerning the use of
    corroborating evidence in the threshold reliability inquiry. She observed, at
    para. 93, that it was not appropriate to categorize relevant factors in terms
    of threshold and ultimate reliability:

As I trust it has become apparent from the preceding
    discussion, whether certain factors will go only to ultimate reliability will
    depend on the context. Hence, some of the comments at paras. 215 and 217 in
Starr
should no longer be followed. Relevant factors should not be categorized in
    terms of threshold and ultimate reliability. Rather, the court should adopt a more
    functional approach as discussed above and focus on the particular dangers
    raised by the hearsay evidence sought to be introduced and on those attributes
    or circumstances relied upon by the proponent to overcome those dangers. In
    addition, the trial judge must remain mindful of the limited role that he or
    she plays in determining admissibility - it is crucial to the integrity of the
    fact-finding process that the question of ultimate reliability not be
    pre-determined on the admissibility voir dire.

[169]

Justice Charron
    preferred the views expressed in Justice Kennedys dissent in the United States
    Supreme Courts decision in
Idaho v. Wright
, 497 U.S. 805 (1990),
    concerning the use of corroboration to support the trustworthiness of a statement.
[5]
Justice Kennedy had stated, at pp.
    828-29:

I see no constitutional justification for this decision to
    prescind corroborating evidence from consideration of the question whether a
    childs statements are reliable. It is a matter of common sense for most people
    that one of the best ways to determine whether what someone says is trustworthy
    is to see if it is corroborated by other evidence. In the context of child
    abuse, for example, if part of the childs hearsay statement is that the
    assailant tied her wrists or had a scar on his lower abdomen, and there is
    physical evidence or testimony to corroborate the childs statement, evidence
    which the child could not have fabricated, we are more likely to believe that
    what the child says is true. Conversely, one can imagine a situation in which a
    child makes a statement which is spontaneous or is otherwise made under
    circumstances indicating that it is reliable, but which also contains
    undisputed factual inaccuracies so great that the credibility of the childs
    statements is substantially undermined. Under the [majoritys] analysis, the
    statement would satisfy the requirements of the Confrontation Clause despite
    substantial doubt about its reliability.

[170]

C
h
arron J. added, at para. 100:

In my view, the opinion of Kennedy J. better reflects the
    Canadian experience on this question. It has proven difficult and at times
    counterintuitive to limit the inquiry to the circumstances surrounding the making
    of the statement. This Court itself has not always followed this restrictive
    approach. Further, I do not find the majority [of the United States Supreme
    Courts] concern over the bootstrapping nature of corroborating evidence
    convincing. On this point, I agree with Professor Paciocco who commented on the
    reasoning of the majority in
Idaho v. Wright
as follows (at p. 36):
[6]

The final rationale offered is that it would involve bootstrapping
    to admit evidence simply because it is shown by other evidence to be reliable.
    In fact, the bootstrapping label is usually reserved to circular arguments in
    which a questionable piece of evidence picks itself up by its own bootstraps
    to fit within an exception. For example, a party claims it can rely on a hearsay
    statement because the statement was made under such pressure or involvement
    that the prospect of concoction can fairly be disregarded, but then relies on
    the contents of the hearsay statement to prove the existence of that pressure
    or involvement: [
Ratten v. R
, [1972] A.C. 378 (P.C.)]. Or, a party
    claims it can rely on the truth of the contents of a statement because it was a
    statement made by an opposing party litigant, but then relies on the contents
    of the statement to prove it was made by an opposing party litigant: see
R.
    v. Evans
,
[1991] 1 S.C.R. 869
.
    Looking to
other
evidence to confirm the reliability of evidence, the
    thing
Idaho v. Wright
purports to prevent, is the very antithesis of bootstrapping.
    [Emphasis in original.]

[171]

In
R. v.
    Couture
, 2007 SCC 28, [2007] 2 S.C.R. 517, Charron J., writing for the
    majority, found the trial judge had erred in finding the declarants similar
    statements to others corroborated certain hearsay statements. She observed, at
    para. 83, that [i]ndependent evidence that supports the truth of an assertion is
    corroborative. Repeating the same statement to different people is not
    corroborative of the truth of the statement. Hence the rule against admission
    of prior consistent statements:
R. v. D.B.
, 2013 ONCA 578, 31 O.A.C.
    294, at para. 31.

[172]

However, in the
    following paragraph, Charron J. explained that corroboration could be found in
    evidence that substantiates the trustworthiness of the statement. She gave an
    example that has some resonance in this case, at para. 84:

This Court clarified in
Khelawon
that corroboration
    can be considered in assessing the threshold reliability of a statement.
    Indeed, corroboration can be powerful to substantiate the trustworthiness of a
    statement. Recall the semen stain in [
Khan
]. For example here, [the
    declarant] told the police that [the accused] had admitted to sexually
    assaulting both victims after their death. There was no forensic evidence of
    this nature on the
voir dire
or at trial. However, assuming that there
    had been evidence that the victims had indeed been sexually assaulted, and that
    this evidence was not likely to have been known by anyone other than the
    investigators and the perpetrator at the time of the statement, this
    corroborative evidence would lend much cogency to the statement. However here,
    the evidence erroneously relied upon by the trial judge as corroborative is of
    no assistance in assessing the inherent trustworthiness of [the declarants]
    statements.

[173]

In
R. v.
    Blackman
, 2008 SCC 37, [2008] 2 S.C.R. 298, Charron J. had more to say on
    the comments in
Khelawon
and the need to avoid pre-empting the issue
    of ultimate reliability on the admissibility inquiry. At paras. 53-57, she
    again emphasized the distinction between threshold and ultimate reliability:

Before concluding, I would like to say a few words in response
    to counsels submissions at the hearing on the question of corroboration. Both
    counsel argued that the analysis of threshold reliability may well have been
    different at trial with the benefit of
Khelawon
s clarification of the
    proper use to be made of corroborating or conflicting evidence on the
    admissibility
voir dire
.

It is important to emphasize that
Khelawon
did not
    broaden the scope of the admissibility inquiry; it merely refocused it. This
    Court held that the relevant factors to be considered on the admissibility
    inquiry should no longer be categorized as going either to threshold or
    ultimate reliability. Rather, the Court stated that a functional approach
    should be adopted

Hence, the Court clarified that in appropriate circumstances, a
    corroborative item of evidence can be considered in assessing the threshold
    reliability of a statement. Consider, on the one hand, the hearsay statement of
    a complainant who asserts that she was repeatedly stabbed but has no injury to
    show in support. The lack of corroborative evidence would seriously undermine
    the trustworthiness of the statement and, indeed, would likely be fatal to its
    admissibility. On the other hand, an item of corroborative evidence can also
    substantiate the trustworthiness of a statement. Recall the semen stain in [
Khan
].
    Where an item of evidence goes to the trustworthiness of the statement,
Khelawon
tells us that it should no longer be excluded simply on the basis that it is
    corroborative in nature.

However, the Court in
Khelawon
also emphasized the
    important differences between threshold and ultimate reliability and the
    principle bears repeating. Trial judges must be aware of the limited role they
    play in determining admissibility. It is essential to the integrity of the
    fact-finding process that the question of ultimate reliability not be
    pre-determined on the admissibility
voir dire
: see
Khelawon
,
    at para. 93.

For example, Crown counsel in this case submitted that it would
    be a shocking coincidence for Mr. Ellison to have falsely implicated Mr.
    Blackmans brother in the strip club shooting and then for Mr. Keene to
    identify Mr. Blackman as the man who killed the deceased. The Crown offers as
    further corroboration the fact that the same gun was used in both the
    February and April incidents. These items of evidence may indeed be supportive
    of the Crowns theory that Mr. Blackman is the person who killed Mr. Ellison
    and that he did so in retaliation for the stabbing. However, the items of
    evidence can only take on this corroborative character when they are considered
    in the context of the evidence as a whole. This kind of inquiry goes far beyond
    the trial judges role in determining whether Mr. Ellisons statements to his
    mother that the shooter outside the strip club was the brother of the person he
    stabbed are sufficiently reliable to warrant admission. The admissibility
voir
    dire
must remain focused on the hearsay evidence in question. It is not
    intended, and cannot be allowed by trial judges, to become a full trial on the
    merits.

[174]

It is apparent
    in
Khelawon
that Charron J. was not restricting her observations on the
    use of corroborating evidence to cases involving sexual abuse of children. Nor
    has it been interpreted in that fashion by this court: see
R. v. Singh
,

2010 ONCA 808, 266 C.C.C. (3d) 466, at para. 34, leave to appeal to S.C.C.
    refused, [2011] S.C.C.A. No. 48; and
R. v. Carroll
, 2014 ONCA 2, at
    paras. 87, 103, 112.

[175]

In this case,
    corroborative evidence provides an assurance of the threshold reliability of the
    trace and of the accurate communication of the results to police. The 911 call
    resulted in the dispatch of police to a location within 100 feet of the
    workplace of a man whose DNA was later discovered in and on the victim. That
    man subsequently admitted to intercourse with the victim on the night she was
    killed. Independent triangulation of the DNA evidence and the 911-trace
    evidence located someone with unique and intimate knowledge of the victim on
    the night she died. This was powerful corroboration of the reliability of the evidence,
    because the possibility of coincidence is highly unlikely: see
U. (F.J.)
,
    at paras. 40, 42. We can also exclude the possibility of collusion or tainting
    because the respondent was not a suspect at the time, his identity was unknown,
    and neither the police nor Bell Canada had any idea of his connection to Ms.
    Werendowicz.

[176]

The respondents
    connection to the victim and his presence at Gate #6 is, in and of itself,
    corroborative of the reliability of the 911-trace evidence. Unlike the evidence
    relied upon by the Crown in
Blackman
, its corroborative character does
    not require an analysis of the evidence as a whole, nor does it pre-determine
    the ultimate reliability of the evidence. As I will explain, the respondent would
    have an opportunity at trial to challenge both the 911-trace evidence and the
    evidence relied upon as corroborative.

Trial Fairness

[177]

I return to the
    issue of trial fairness, most particularly whether there would be an adequate
    opportunity for the respondent to test the reliability of the evidence at trial.
    As Charron J. noted in
Khelawon
, at para. 3, trial fairness impacts
    not only the admissibility of the evidence but also the final question whether,
    in spite of its reliability, the evidence should be excluded because its
    prejudicial effect outweighs its probative value.

[178]

I consider the
    trial fairness issue separately, however, because if the respondent cannot
    fairly test the evidence, or point out potential weaknesses, there is a risk
    the jury would give it undue weight, particularly when coupled with the
    corroborative evidence.

[179]

It would be open
    to the respondent at trial to challenge both the reliability of the 911-trace
    evidence and the evidence of his presence in proximity to Gate #6, relied on by
    the Crown to corroborate that evidence. He would be able to cross-examine the
    experts concerning the reliability of the 911 system, and the police officers
    who responded to the 911 call on June 22, 1981, both of which he did on the
voir
    dire
. He would also be entitled, if he chose, to adduce evidence himself. This
    might include evidence from those who knew him to establish that it was not his
    voice on the 911 call. He might choose to testify that he did not make the
    call, as he did at his previous trials.

[180]

The respondent would
    therefore have a real opportunity to test the reliability of the 911-trace
    evidence at trial. I would not exclude the evidence on the basis of trial
    fairness.

Probative Value and Prejudicial
    Effect

[181]

The final
    question is whether the evidence should be excluded because its probative value
    is outweighed by its prejudicial effect.

[182]

The evidence is
    highly probative. The jury could conclude the call was made by the killer and
    that the connection between the source of the call and the respondents
    workplace was not coincidental. The concern is not that the evidence could
    undermine the respondents defence. It is that in the face of this probative
    evidence, and the corroborative evidence, the jury would rush to judgment.

[183]

As I have noted,
    the issue intersects with trial fairness. The impact of the evidence can be
    addressed by cross-examination. It can also be addressed by appropriate
    instructions to the jury on the uses that may  and may not  be made of the
    evidence and the findings the jury must make before using the evidence.

[184]

In my view, in
    light of the opportunities for testing the evidence and the instructions the
    jury would receive in relation to the evidence, the prejudicial effect of the
    evidence would not outweigh its probative value.

Conclusion on Hearsay

[185]

In summary, the
    application judge never subjected the 911-trace evidence to a principled
    analysis. His concerns about its potential ambiguity were speculative. His
    dismissal of the corroborative evidence of the respondents presence at Gate #6
    as circular reasoning was, respectfully, in error. The narration/ambiguity
    danger was not sufficient to foreclose the reliability analysis and the
    remaining hearsay dangers were minimal. The circumstances in which the tracing
    occurred, the expert evidence concerning the reliability of the tracing
    process, and the corroborative evidence linking the respondent to the source of
    the call and to the victim, all served to confirm the reliability of the
    evidence. The respondent would have a fair opportunity to challenge its
    reliability in the presence of the jury. The prejudicial effect of the evidence
    did not outweigh its probative value. Under a principled analysis, the
    911-trace evidence met the test for threshold reliability and was admissible.

[186]

I turn now to
    the application judges decision to stay the proceedings in light of this
    conclusion.

B.

The stay issue

[187]

A high degree of
    deference is owed to a judges discretionary decision to stay proceedings under
    s. 24(1) of the
Charter
:
R. v. Bellusci
, 2012 SCC 44, [2012]
    2 S.C.R. 509. In the absence of an error of law, a reviewable error of fact, or
    a decision that is so clearly wrong as to amount to an injustice, an
    appellate court should not interfere:
Babos
, at para. 48;
Bellusci
,

at paras. 17-19;
R. v. M.T.,
2013 ONCA 476, 299 C.C.C. (3d) 1, at
    para. 64.

[188]

Deference is
    particularly appropriate where, as here, the application judge had great
    familiarity with the case, having presided over two lengthy jury trials, and
    attendant pre-trial motions. He was uniquely positioned to undertake the requisite
    balancing exercise.

[189]

In seeking to
    set aside the stay, the Crown contends that the exclusion of the 911-trace
    evidence denied it a trial on the merits:
R. v. Spackman
, 2012 ONCA
    905, 295 C.C.C. (3d) 177, at para. 102. In answer, the respondent points to the
    Crowns failure to challenge the correctness of the 911-trace evidence
    exclusion ruling in the respondents appeal of his conviction to this court in
    2008. He points out that in defence of the conviction, the Crown was entitled
    to raise errors of law that inured to his benefit, either in support of the
    decision below or on its position as to the appropriate remedy:
R. v.
    Harvey
(2001), 57 O.R. (3d) 295 (C.A.), at para. 34, affirmed 2002 SCC 80,
    [2002] 4 S.C.R. 311, referring to
R. v. Keegstra
, [1995] 2 S.C.R. 381,
    at para. 23. He submits that if, on that appeal, this court had agreed with the
    Crowns position that the 911-trace evidence was compelling evidence of the
    respondents guilt, it could have dismissed his appeal under the overwhelming
    evidence branch of the curative proviso in s. 686(1)(b)(iii) of the
Code
.

[190]

Accordingly, the
    respondent submits the Crown was obliged to raise any potentially dispositive
    issue on that appeal, so as to avoid an unnecessary new trial or to avoid
    re-litigating contentious issues at the re-trial. He also submits the Crowns
    failure to raise the issue belies the significance it now places on the
    evidence.

[191]

The Crown responds
    to this submission by reference to
R. v. James
, 2011 ONCA 839, 283
    C.C.C. (3d) 212. In that case, James appealed his convictions for robbery and
    manslaughter on the ground the trial judge erred in admitting certain hearsay
    evidence and gave an erroneous instruction to the jury on identification. In
    response, the Crown attempted to invoke the proviso and in so doing made what
    Doherty J.A. referred to as a novel argument (at para. 55). The Crown
    submitted the trial judges evidentiary ruling on hearsay had excluded
    important evidence that was admissible and would have supported its case. If
    that evidence was added to the evidentiary mix, the Crown argued its case would
    have been overwhelming and the proviso should apply.

[192]

In rejecting
    this submission, Doherty J.A. stated, at paras. 56-57:

The application of the
proviso
must be considered in
    the context of the evidence heard by the jury, not the evidence it might have
    heard had the trial judge made different rulings. To consider excluded
    evidence, even wrongly excluded evidence, in deciding whether the
proviso
should be applied, is to apply the
proviso
to a different case than
    the one heard by the jury. Because the evidence was excluded at trial, the
    appeal court has no way of knowing how the defence would have met that evidence
    and, consequently, no way of knowing how strong that evidence might have been.
    An appellant who has demonstrated an error in law and is otherwise entitled to
    a new trial should not be deprived of that new trial based on assumptions about
    the probative force of evidence he was never called upon to answer at trial.
    The excluded evidence can play no role in determining the application of the
curative

proviso
to the legal errors made at trial.

Where, however, the issue is not the application of the
curative

proviso
, but whether a successful appellant is entitled to an
    acquittal or a new trial, the Crown may argue that probative evidence was
    improperly excluded in support of a submission that the court should direct a
    new trial and not enter an acquittal. Counsel for the appellant, quite
    properly, does not suggest that an acquittal would be an appropriate remedy
    here. The Crown can re-litigate the admissibility rulings made by the trial
    judge at the new trial: see
R. v. Duhamel
,
[1984] 2 S.C.R. 555
.

[193]

Although this
    courts decision in
James
came after the respondents 2008 appeal, in
    my view, the Crowns failure to raise the issue in response does not diminish
    the significance of the 911-trace evidence. Nor does it prevent the issue from
    being raised here. It is not suggested that the Crown has had any opportunity
    to challenge the exclusion of this evidence in the context of the two previous
    mistrials.

[194]

The Crown
    submits the application judge reversed the burden, which should have been on
    the respondent in applying for a stay, by requiring the Crown to demonstrate
    this was one of the very rare cases in which a fourth trial should be
    permitted. This language was a reference to the decision of the Manitoba Court
    of Appeal in
Jack
, in which Scott C.J.M. stated, at para. 11:

In my opinion it would be a very rare case indeed where putting
    an accused in jeopardy with respect to a serious charge for the fourth time
    would not constitute a breach of s. 7 of the
Charter
, and an abuse of
    process sufficient to warrant a judicial stay of proceedings under s. 24(1) of
    the
Charter
.

In a brief oral endorsement, the Supreme Court of
    Canada expressed full agreement with his reasons.

[195]

The respondent
    contends that in expressing its agreement, the Supreme Court endorsed the
    proposition that a fourth trial for a serious offence will generally be an
    abuse of process. He refers to decisions of this court in which the passage in
Jack
has been approved or applied:
Hunter
;
R. v. Van
, 2008
    ONCA 383, 92 O.R. (3d) 462, revd on other grounds, 2009 SCC 22, [2009] 1
    S.C.R. 716. See also
L. (A.)
.

[196]

I do not find it
    necessary to resolve this issue, because highly probative and admissible
    evidence was excluded at the previous trials. As a result, the Crown did not
    have a full opportunity to put its case before the jury at any of the previous
    trials. Moreover, the application judges assumption that the evidence will be
    not be stronger at a fourth trial cannot stand.

[197]

In
Babos
,
    at para. 30, Moldaver J., writing for the majority, described a stay of proceedings
    as the most drastic remedy a criminal court can order. He added that in
    granting a stay, the truth-seeking function of the trial is frustrated and the
    public is deprived of the opportunity to see justice done on the merits. In
    many cases, alleged victims of crime are deprived of their day in court.

[198]

Here, a stay was
    sought, and granted, on the basis that the respondent had already been tried
    three times and a fourth trial would be an abuse of process.

[199]

This case falls,
    therefore, within the residual category, referred to in
Babos
, in
    which a stay is sought because the state conduct offends societys notions of
    fair play and decency and where it is alleged that proceeding with a trial in
    the face of that conduct would harm the integrity of the justice system (at
    para. 35). Moldaver J. described [r]epeatedly prosecuting an accused for the
    same offence after successive juries have been unable to reach a verdict as an
    example of a case in which the integrity of the justice system is implicated in
    the absence of state misconduct (at para. 37).

[200]

The test whether
    a stay should be granted, as stated in
Babos
, at para. 32, is:

(1) There must be prejudice to the accuseds right to a fair
    trial or the integrity of the justice system that will be manifested,
    perpetuated or aggravated through the conduct of the trial, or by its outcome;

(2) There must be no alternative remedy capable of redressing
    the prejudice; and

(3) Where there is still uncertainty over whether a stay is
    warranted after steps 1) and 2), the court is required to balance the interests
    in favour of granting a stay, such as denouncing misconduct and preserving the
    integrity of the justice system, against the interest that society has in
    having a final decision on the merits. [Citations omitted.]

[201]

The Supreme
    Court confirmed in
Babos
that a stay of proceedings for abuse of
    process will only be granted in the clearest of cases (at paras. 31, 44).
    Moldaver J. noted that this requirement, coupled with the balancing of societal
    interests, will present an accused seeking a stay with an onerous burden (at para.
    44). The result, he said, is that cases in the residual category warranting a
    stay of proceedings will be exceptional and very rare (at para. 44,
    referring to
Canada (Minister of Citizenship and Immigration) v. Tobiass
,
    [1997] 3 S.C.R. 391, at para. 91).

[202]

The comments in
Jack
that a fourth trial of a serious charge would be very rare can, in my view, be
    reconciled with these observations. Proceeding with a fourth trial for murder
    may, in some cases  perhaps many cases  fall within the exceptional and very
    rare cases in which a stay is warranted.

[203]

In my view, however,
    this is not such a case. The decisive factors are the application judges
    conclusions that the Crown had full opportunities to convince the juries of the
    respondents guilt at the earlier trials and that the evidence at a fourth
    trial would not be materially different from the evidence at those trials. These
    fed his further conclusion that the Crowns case at a fourth trial would not be
    as strong as it was at the previous trials, due to inevitable attrition of
    witnesses and their memories.

[204]

These conclusions
    were premised on the assumption that the 911-trace evidence, excluded at the earlier
    trials, would not be admissible on a fourth trial. As I have found that
    evidence should have been admitted, the application judges decision on the
    stay was the product of an error of law.

[205]

Applying the
Babos
test, there is a risk of undermining the integrity of the justice system by
    prosecuting the respondent a fourth time and there is no alternative remedy to
    redress the prejudice to him. The question becomes one of balancing the
    interests in favour of granting a stay, including preserving the integrity of
    the justice system, against the societal interest in a final decision on the
    merits.

[206]

The result of
    the exclusion of the 911-trace evidence is that the Crown has never had an
    opportunity to try the respondent based on all the legally admissible evidence.
    Had the evidence been admitted, the Crowns case at trial would have been
    stronger. Not only would the evidence point towards the respondent as the 911
    caller, it would point more powerfully away from the alternative suspect, who
    was working at another location when the call was made.
[7]

[207]

The
    communitys sense of fair play works both ways. As Watt J.A. observed in
Spackman
,
    at para. 102:

Trial fairness is not the exclusive preserve of those charged
    with crime. A fair trial is a trial that appears fair, not only from the
    perspective of the accused, the person on trial, but also from the perspective
    of the community  A fair trial is a trial that satisfies the public interest in
    getting at the truth, but at the same time preserves basic procedural fairness
    for the accused. [Referring to
R. v.  Harrer
, [1995] 3 S.C.R. 562, at
    para. 45, per McLachlin J.;
R. v. Bjelland
, 2009 SCC 38, [2009] 2
    S.C.R. 651, at para. 22.]

[208]

Notwithstanding
    the challenges associated with conducting a trial after the passage of almost
    35 years, there is a strong public interest in a trial on all the legally
    admissible evidence and this swings the balance against a stay.

[209]

Having regard to
    the other findings made by the application judge on the factors he identified,
    it is my view that the circumstances require that the stay be set aside and a
    fourth trial be held. If, at that trial, the record with respect to the
    911-trace evidence is not materially different, that evidence will be
    admissible. If the evidentiary record is materially different, it will be up to
    the trial judge to determine its admissibility, in accordance with the
    principles set forth above.

IV.

DISPOSITION


[210]

For these
    reasons, I would allow the appeal, set aside the stay of proceedings, and order
    a new trial.

Released: April 8, 2014    (A.H.)

G.R.
    Strathy J.A.

I agree Alexandra Hoy
    A.C.J.O.

I agree
    E.E. Gillese J.A.





[1]
Those charges were ultimately stayed because evidence was lost:
R. v.
    Badgerow
(2008), 58 C.R. (6th) 367 (Ont. S.C.).



[2]
The Crown did not rely on this report on this appeal.



[3]
The Rules were submitted to Congress in 1973 and adopted on January 2, 1975.



[4]
These findings are at para. 20 of his reasons for excluding the 911-trace
    evidence at the second trial.



[5]
In
Starr
, Iacobucci J. had cited the majority opinion in
Idaho v.
    Wright
.



[6]
David M. Paciocco, The Hearsay Exceptions: A Game of Rock, Paper, Scissors
    in
Special Lectures of the Law Society of Upper Canada 2003: The Law of
    Evidence
(Toronto: Irwin Law, 2004).



[7]
As noted, the Crown did lead evidence of the sector within Hamilton from which
    the 911 call came and that the respondent was working in that sector, while the
    alternative suspect was not.


