



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nurse, 2019 ONCA 260

DATE: 20190402

DOCKET: C60975 & C61324

Doherty, Brown and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marlon Nurse and Darryl Plummer

Appellants

Catriona Verner, for the appellant Marlon Nurse

Delmar Doucette and Andrew Furgiuele, for the appellant Darryl
    Plummer

Randy Schwartz and Molly Flanagan, for the respondent

Heard: October 24, 2018

On appeal from the conviction entered on June 25, 2014 by
    Justice Steve A. Coroza of the Superior Court of Justice, sitting with a jury.

Trotter J.A.
:

A.

introduction

[1]

The appellants were convicted of the first degree murder of Devinder
    Kumar. They appealed their convictions to this court. At the end of the
    hearing, their appeals were dismissed, with reasons to follow. These are those
    reasons.

B.

overview

[2]

Mr. Kumar was viciously stabbed at the side of a road in Caledon,
    Ontario, outside of a house that he rented to Nurse. The two perpetrators fled
    when a motorist approached. Emergency personnel soon arrived at the horrific
    scene. There was blood everywhere  Mr. Kumar had been stabbed 29 times and was
    quickly succumbing to his injuries.

[3]

As EMS personnel desperately tried to save Mr. Kumars life, Nurse approached.
    He told the police that he knew Mr. Kumar and said he saw three men dump his
    body from a car. Although his vocal chords had been severed, Mr. Kumar still
    tried to communicate. An officer on the scene said that Mr. Kumar pointed to an
    abdominal injury and then gestured towards Nurse. Nurse then said he had actually
    witnessed Mr. Kumar being attacked by a black man with dreadlocks. Shortly
    afterwards, Mr. Kumar died in the ambulance.

[4]

Plummer was apprehended down the road from the murder scene. He was
    covered in Mr. Kumars blood. He had a cut on his hand. A knife that was
    recovered from a nearby creek had Mr. Kumars blood on it. Plummers DNA was
    found on the handle of the knife.

[5]

Nurse returned to the nearby house that he had been renting from Mr.
    Kumar. He too had Mr. Kumars blood on his hand, and on his clothing. When he
    was formally interviewed by the police, he told inconsistent stories. He eventually
    settled on the version that Plummer was the killer.

[6]

Subsequent investigation uncovered Blackberry Messenger (BBM) chats
    between the appellants in which they discussed luring Mr. Kumar to the home to kill
    him and steal his Range Rover.

[7]

The appellants raised two grounds of appeal. First, Nurse argued that Mr.
    Kumars pointing gestures were wrongly admitted as evidence capable of identifying
    him as being involved in the killing. Second, both appellants argued that their
    BBM chats were inadmissible because, although data was extracted from their
    phones pursuant to a valid warrant, it was not fully analyzed until new forensic
    software was available a year later. This, they say, infringed their rights
    under s. 8 of the
Charter
, and ought to have led to exclusion of the
    evidence under s. 24(2) of the
Charter
.

[8]

I would dismiss both grounds of appeal.

C.

background facts

(1)

Introduction

[9]

Mr. Kumar was a 39-year-old real estate agent. A month before the
    killing, he rented a house to Nurse. Nurse gave Mr. Kumar two cheques that were
    returned NSF (i.e. insufficient funds). Mr. Kumar tired of Nurses excuses
    for non-payment. Five days before he was killed, Mr. Kumar demanded that Nurse
    move out of the home.

[10]

This
    presented a serious problem for Nurse. He was falsely living a prosperous
    lifestyle. In reality, he had no money, and was in significant debt. Moreover,
    Nurse had told his girlfriend that he had actually owned the house that they were
    living in (with their newborn).

[11]

In
    the days preceding the murder, Mr. Kumar pressed Nurse to pay him. On November
    9, 2011, Mr. Kumar demanded immediate payment of $3,600. This triggered the BBM
    exchange between Nurse and Plummer. It initially started as a plan to rob Mr.
    Kumar. As Mr. Kumar continued to demand payment, the plan changed to one of
    murder. The appellants originally spoke of obtaining guns; unable to locate any,
    they decided to use knives. Nurse advised Plummer that he had gloves that they
    could use. Nurse and Plummer also discussed the use of masks or bandanas in
    their BBM messages. In this discussion Nurse stated: But no witnesses sooooo.

[12]

For
    his part, Plummer had never met Mr. Kumar. However, he was in desperate need of
    money. A few days before the murder, Plummer had been arrested for a failed
    scam to defraud a payday loans store. He was about to be kicked out of his motel
    room for failing to pay. Nurse promised him half of the proceeds of whatever
    they could steal from Mr. Kumar. Nurse also promised Plummer that he could keep
    Mr. Kumars vehicle.

[13]

On
    November 10, 2011, Mr. Kumar again told the appellant he would have to leave by
    the end of the month. Minutes later, Nurse told Plummer that their plan had to
    be carried out immediately. Nurse asked Mr. Kumar to attend at the house to
    receive his money. Less than two hours later, Mr. Kumar was dying on the side
    of the road.

(2)

The Meeting at the House

[14]

Before
    Mr. Kumar arrived at the house, Plummer arrived by taxi, paid for by Nurse. There
    was no direct evidence as to what happened when Mr. Kumar arrived at the house.
    However, it would appear that the attack started in the garage, but Mr. Kumar
    was able to escape. He was chased and attacked on the side of the road. Mr.
    Kumars car had been left in the driveway.

[15]

Nurse
    told witnesses at the scene that he had been in his garage changing a car
    light. Other evidence confirmed this claim and also suggested that Mr. Kumar
    was attacked in the garage. For instance, his glasses were found in that
    location. There was also evidence of a struggle.

(3)

At the Side of the Road

[16]

The
    home rented by Mr. Kumar to Nurse was on The Gore Road, a highly trafficked
    country road in Caledon. At about 11:30 a.m. that day, a motorist was driving
    on the road and saw two men crouched over a man who was laying on the road. The
    two men then ran across the road towards the house and into the bush. The
    motorist initially thought that the two men might have been trying to help Mr.
    Kumar. However, at trial, the motorist testified that he saw the two men moving
    their arms like if you were beating on somebody. Nevertheless, he called 911.
    In the meantime, other motorists stopped to help.

[17]

Mr.
    Kumar had been stabbed 29 times. Among his most obvious injuries was a cut to
    his neck that exposed his vertebrae. Mr. Kumar also suffered a stab wound to
    his abdomen, through which his small intestine protruded out. His blood was all
    over the road. Despite the best efforts of the police and paramedics, Mr. Kumar
    died in the ambulance.

[18]

I
    will discuss the evidence of what happened at the side of the road in more detail
    below when discussing Mr. Kumars gestures.

(4)

Other Evidence Pointing to the Appellants

[19]

Other
    evidence connected the appellants to the murder.

[20]

Plummer
    was apprehended almost immediately, at gunpoint, just down the road from where
    Mr. Kumar was attacked. Mr. Kumars blood was found on Plummers clothing,
    shoes, cheek and a latex glove he was wearing. Similarly, Mr. Kumars blood was
    found on Nurses clothing, shoes and his left palm. It was also found on latex
    gloves that were discarded near Mr. Kumars body, likely by Nurse. Nurse was
    wearing coveralls which the Crown alleged that he wore to protect his clothing
    from blood. The Crown suggested that the coveralls were not necessary for
    changing the light bulb in the car Nurse was working on. The Crown alleged that
    the latex gloves worn by both men were the gloves Nurse referenced in the BBM
    chats.

[21]

The
    knife used to kill Mr. Kumar was found in a creek in the backyard of a
    neighbouring property. It had Mr. Kumars blood, and Plummers DNA on it.
    Plummer had a cut on one of his fingers, which the forensic pathologist said
    could have been caused when stabbing someone. Moreover, there was evidence that
    connected the knife to Nurse. Nurse told Plummer in the BBM chats he would have
    knives for the two of them. The knife recovered from the creek matched a
    recently purchased set of knives in Nurses kitchen, a set that was missing one
    piece.

[22]

Neither
    of the appellants testified at the trial. However, Nurse talked a lot, both at
    the scene, and then later to the police. His statements at the scene, which
    were later found to be untrue, are addressed below. In the aftermath, while the
    police investigated, Nurse gave statements that suggested Plummer was
    responsible for the attack. He told the police that he did not know how Plummer
    got to his house that morning. However, the BBM chats revealed that Nurse paid
    for Plummers taxi. Nurse also told the police that he had given $3,600 in cash
    to Mr. Kumar. However, this cash was nowhere to be found  not on Mr. Kumar,
    nor in his car, nor on either of the appellants. It, too, was a lie.

[23]

Lastly,
    both appellants deleted all of the BBM messages related to the plan to rob and kill
    Mr. Kumar. In total, 549 messages were deleted. The last messages they
    exchanged were deleted at 10:44 a.m. on November 10, 2011, roughly 45 minutes before
    the murder. It would be a year before the police recovered the deleted messages
    through forensic analysis. They reveal a disturbing plan to lure Mr. Kumar to
    the house to be robbed and killed.

[24]

The
    foregoing is a condensed account of the evidence for the purpose of framing the
    discussion of the issues on appeal. Overwhelmingly, the evidence proved that
    the appellants planned to kill Mr. Kumar and then carried out their plan on
    November 10, 2011.

D.

MR. KUMARS GESTURES

(1)

Introduction

[25]

On
    appeal, the Crown argued (as it did at trial) that, when he made his gestures
    at the side of the road, Mr. Kumar was literally pointing the finger of blame
    at Nurse. By pointing to his abdominal injury and then pointing at Nurse, Mr.
    Kumar was trying to tell everyone that Nurse was responsible for his
    devastating injuries. The Crown tendered these gestures not just for their
    truth in establishing Nurses involvement, but also to demonstrate that Nurse
    changed his story after Mr. Kumar pointed at him. The trial judge characterized
    this second purpose as a non-hearsay use because the sole purpose was to
    establish that Nurse changed his story.

[26]

Nurse
    argued that the interpretation of Mr. Kumars actions is not nearly as clear as
    the Crown contends. Mr. Kumars gestures were ambiguous at best and should not
    have been left with the jury as hearsay conduct. Nurse made no submissions on
    the alternative, non-hearsay use of this evidence advanced by the Crown.

(2)

Evidence at the Scene

[27]

Needless
    to say, the scene at the side of the road was very dramatic. One bystander was
    crying, another went pale, and a third person appeared to be physically ill. A
    number of the officers remarked on how horrifying the scene was. One officer
    testified that he had never seen anything like it in his career. Another
    stated: Ive seen a lot of bad stuff, but this has ripped a hole in my gut. These
    were the circumstances in which Mr. Kumar made the gestures that were so
    contentious at trial. Thus, it is not surprising that there were slightly
    divergent accounts of what happened.

[28]

When
    he arrived on the scene, P.C. Andrew Mitchell immediately understood that Mr.
    Kumar had suffered serious injuries. He retrieved a first aid kit from his
    cruiser. P.C. Mitchell asked Mr. Kumar who did this? However, Mr. Kumar could
    not speak, and was having difficulty breathing. P.C. Mitchell turned Mr. Kumar
    onto his back, exposing a serious abdominal injury, through which his small
    intestine was protruding.

[29]

It
    was at this point that Nurse came upon the scene behind P.C. Mitchell.

Nurse said: I know that guy, thats Dev. P.C.
    Mitchell asked Nurse what happened. Nurse explained that he saw Mr. Kumar being
    dumped from a car by three guys. P.C. Mitchell broadcast this information
    over the radio.

[30]

Nurse
    continued to talk. P.C. Mitchell testified that Nurse, positioned about half a
    meter behind him, asked more than once whether Mr. Kumar was going to survive.
    At one point, he told P.C. Mitchell that he had seen a black guy with
    dreadlocks stab Mr. Kumar. Nurse pointed to the house he rented from Mr.
    Kumar. P.C. Mitchell also broadcast this information.

[31]

In
    the meantime, and obviously in enormous distress, Mr. Kumar was flailing his
    arms and pointing to his abdominal injury. P.C. Mitchell testified that when
    Mr. Kumar was flailing his arms, Nurse was standing behind P.C. Mitchell. Nurse
    leaned in, and said from behind P.C. Mitchells shoulder: Thats my buddy
    Dev. P.C. Mitchell tried to gather up Mr. Kumars hands. Mr. Kumar shook off
    P.C. Mitchells hands and pointed his right index finger to the area behind P.C.
    Mitchell, where Nurse was standing alone.

[32]

P.C.
    Mitchell also heard Nurse say something quite peculiar. Nurse held up his hands
    to reveal black latex gloves and said, Thank God Ive got these on.

[33]

P.C.
    Mitchells partner, P.C. Robert Bucsis, gave a slightly different account. When
    he arrived on the scene, he noticed Nurse approach. He had blood on the top of
    one of his shoes. P.C. Bucsis asked the people who had gathered by the side of
    the road whether they had witnessed anything. Nurse said, I know this guy and
    hes a good friend of mine. Nurse asked if he could leave and was told he needed
    to stay because he was a witness. P.C. Bucsis also heard Nurses first version
    of Mr. Kumar having been dumped out of car, which P.C. Mitchell broadcast.

[34]

P.C.
    Bucsis testified that Mr. Kumar was trying to communicate with the officers. He
    saw Mr. Kumar point straight to P.C. Mitchell with his finger, then move it
    across to Nurse, and then repeatedly point to his stomach. It was right after
    Mr. Kumar pointed to Nurse that P.C. Bucsis heard Nurse say, for a second time,
    I know this guy, hes a good friend of mine. Nurse then said that Mr. Kumar
    had come to his house to collect rent. He then saw Mr. Kumar being chased down
    the road by a black man with dreadlocks.

[35]

The
    testimony of P.C. Mitchell and P.C. Bucsis was similar in the sense that, at
    the time, they both thought that Mr. Kumar was pointing at Nurse because they
    were friends. Their testimony differed in terms of sequencing. P.C. Mitchell
    said that Nurse gave both the body dump story and the story of witnessing the attack
    by a black man with dreadlocks, prior to the pointing gestures. P.C. Bucsis
    testified that Nurse switched stories only after Mr. Kumar pointed at him.

(3)

The Trial Judges Rulings

[36]

The
    trial judge addressed the issue of Mr. Kumars gestures in two rulings. In his
    first ruling, and at the request of counsel, the trial judge made a preliminary
    finding that Mr. Kumars gestures fell within the dying declaration exception to
    the hearsay rule: see
R. v. Nurse and Plummer
, 2014 ONSC 2340 (the
    first ruling). In this ruling, he stopped short of finding that the gestures
    were admissible.

[37]

The
    trial judge identified the following criteria for admissibility under the dying
    declaration exception, at para. 32: (a) the deceased had a settled, hopeless
    expectation of almost immediate death; (b) the statement was about the
    circumstances of death; (c) the statement would be admissible if the deceased
    had been able to testify; and (d) the offence involved the homicide of the
    deceased. The trial judge found that all criteria had been established with
    respect to Mr. Kumars gestures.

[38]

The
    only criterion that gave the trial judge pause for concern was (b)  whether
    the statement was about the circumstances of the death. Defence counsel argued
    that the pointing gestures were equivocal and did not amount to a statement. He
    further argued that no previous case had admitted evidence of a gesture as a
    dying declaration.

[39]

The
    trial judge rejected both arguments. He noted, at para. 37, that an out of
    court statement may be verbal, written or implied and found that Mr. Kumars
    gestures were assertions by conduct. He further found that Mr. Nurses
    actions had to be viewed as part of a chain of circumstances of which it
    formed a part: at para. 38. The trial judge concluded, at para. 39, that the
    total [chain of] circumstances when viewed in their entirety permit a
    reasonable inference that the assertion by conduct here was about the
    circumstances of the death.

[40]

In
    a subsequent ruling, the trial judge found that the gestures were also
res
    gestae
statements:
R. v. Nurse and Plummer
, 2014 ONSC 2437 (the
    second ruling). He said, at para. 22, that a dying declaration is a type of
res
    gestae
statement. Relying on
R. v. Khelawon
, 2006 SCC 57, [2006]
    2 S.C.R. 787, at para. 60, the trial judge held that, because the assertions by
    conduct fell within one of the more traditional common law [hearsay] exceptions,
    the evidence was presumptively admissible: at para. 4.

[41]

Neither
    of the common law exceptions invoked in this case was categorically challenged.
    However, Nurses counsel at trial argued that this was one of those rare
    cases where evidence that would otherwise be admissible under a traditional
    hearsay exception may be excluded because it fails to meet the requirements of
    necessity and/or reliability: see
R. v. Starr
, 2000 SCC 40, [2000] 2
    S.C.R. 144, at para. 214; and
R. v. Mapara
, 2005 SCC 23, [2005] 1
    S.C.R. 358, at para. 15. The trial judge considered this argument on the
    merits.

[42]

The
    trial judge rejected arguments that the evidence should be excluded as unreliable
    because the precise meaning of the gestures could not be clarified through
    cross-examination. In approaching this question, the trial judge delineated the
    line between threshold reliability and ultimate reliability: at para. 15. He
    found that the circumstances in which the gestures were made provided an
    adequate context for the jury to determine their meaning and it was still open to
    the defence to argue that the gestures were ambiguous: at paras. 5-6, 33-35. Accordingly,
    the jury, as trier of fact, could properly assess the significance and ultimate
    reliability of the evidence of the gestures.

[43]

In
    assessing threshold reliability, the trial judge found that there were circumstantial
    guarantees of trustworthiness. Drawing on the elements of the dying declaration
    exception to the hearsay rule, the trial judge concluded, at para. 29: In
    short, he [Mr. Kumar] was standing at deaths door and it is inconceivable
    that he turned his mind to gesture to Mr. Nurse for some ulterior purpose. He
    also observed that there was no evidence of a motive for Mr. Kumar to lie, the gestures
    were made shortly after the stabbing, and Mr. Kumar had to actively shake off
    P.C. Mitchells hands to make his gesture, demonstrating an attempt to
    communicate with him: at para. 30. The trial judge concluded that any further
    reliability issues associated with the specific observations of the officers were
    matters of weight for the jury to consider in assessing ultimate reliability.

[44]

The
    trial judge also found that corroborating evidence substantiated the
    trustworthiness of Mr. Kumars gestures and provided an assurance of the
    threshold reliability. He pointed to the following evidence, at para. 32:

1)   A series
    of chats between Mr. Nurse and Mr. Plummer planning the robbery and murder of
    Mr. Kumar;

2)   Mr.
    Kumar's glasses are found in Mr. Nurse's garage;

3)   Mr. Nurse
    provided a statement to police that Mr. Kumar was meeting him that morning at
    his residence;

4)   Mr. Kumar
    was found lying on the roadway in close proximity to Mr. Nurse's residence;

5)   Mr. Nurse
    was found at crime scene wearing black latex gloves and coveralls (Mr. Plummer
    was found 300 meters from Mr. Kumar's body wearing similar black latex gloves);
    and

6)   Mr.
    Nurse's story to the police changed during the investigation. He was initially
    treated as a witness on the basis of what he told the police at the roadside.
    He was then arrested at the Caledon OPP station when the police found his
    version of events suspect.

[45]

The
    trial judge concluded his analysis by considering trial fairness, and balancing
    the probative value of the evidence against its prejudicial effect. On the
    issue of trial fairness, he found that the defence would be able to effectively
    combat any ambiguity in Mr. Kumars gestures by cross-examining the Crown
    witnesses on their observations. The trial judge noted, at para. 33, that: Indeed,
    both officers were subjected to a thorough cross examination on the voir dire.

[46]

In
    terms of the ultimate balancing of the probative value of the evidence against
    its prejudicial effect, the trial judge found that the gestures were highly
    relevant. He emphasized that two individuals were charged with murdering Mr.
    Kumar. There was much evidence of Plummers involvement, including his own inculpatory
    statement. The gestures were relevant to whether Nurse was also involved in the
    killing. The trial judge concluded, at para. 35: Ultimately, it is for the
    jury to decide what to make of the gesture.

(4)

The Trial Judges Instructions

[47]

In
    his final instructions to the jury, the trial judge decided on a cautious path
    in relation to the gestures. He outlined the positions of counsel. The Crown
    had urged the jury to find that Mr. Kumar pointed to Nurse to indicate that
    Nurse was involved in the attack. Counsel for Plummer supported this position.
    Counsel for Nurse relied on the inconsistencies in the evidence. The trial
    judge instructed the jury as follows:

If you find that Mr. Kumar did point to Mr. Nurse, I do wish to
    caution you about placing undue weight on the alleged pointing as a piece of
    evidence from which you infer guilt. It is obvious that Mr. Kumar could not
    speak, so we do not have any direct evidence of what Mr. Kumar was thinking
    when he allegedly pointed at Mr. Nurse.

It seems to me, if you are going to assess this evidence, you
    must need to first determine if Mr. Kumar did in fact point to Mr. Nurse. If
    you are satisfied that he did, consider if there are alternative explanations
    other than the one advanced by the Crown.

Keep in mind that Constable Mitchell and Constable Bucsis both
    initially believed that Mr. Kumar was pointing to Mr. Nurse because he was
    trying to communicate with his friend. Take into account the circumstances and
    use your common sense when you assess this evidence.

No objection was taken to this instruction at trial.

(5)

The Positions of the Parties on Appeal

[48]

On
    behalf of Nurse, Ms. Verner argued that the trial judge erred in admitting the
    gestures as evidence capable of implicating Nurse in Mr. Kumars death. Ms.
    Verner did not challenge their admissibility under the traditional hearsay
    exceptions discussed above; she argued that Mr. Kumars gestures were too
    ambiguous, and therefore unreliable, even at the threshold stage. Moreover, she
    submitted that the evidence against Nurse was not overwhelming and could not
    provide the necessary confirmation now required under
R. v. Bradshaw
,
    2017 SCC 35, [2017] 1 S.C.R. 865.

[49]

Ms.
    Verner also argued that the trial was rendered unfair by the Crowns use of
    this evidence in his closing address. She argued that the Crown improperly
    invited the jury to consider the evidence from the perspective of Mr. Kumar as
    he was dying. It is further argued that the jury was invited to reason back from
    guilt.

[50]

Counsel
    for Plummer did not make arguments concerning the admissibility of Mr. Kumars
    gestures. However, Mr. Doucette submitted that, if Nurse is successful on this
    ground of appeal, his client should also get a new trial because, in its closing
    address, the Crown used this evidence to implicate both Nurse and Plummer.

He further argued that the
    trial judges instructions to the jury on this issue, while not specifically
    making reference to Plummer, failed to caution the jury about using this
    evidence against Plummer.

[51]

In
    response, the Crown argued that the trial judge did not err in admitting Mr.
    Kumars gestures under the principled exception to the hearsay rule. Ms. Flanagan
    submitted that there were circumstantial guarantees of trustworthiness that
    justified the reception of this evidence. She also argued that the case against
    Nurse was overwhelming and provided powerful confirmation of Mr. Kumars
    attempt to identify one of his killers. If the evidence was wrongly admitted,
    the Crown seeks to invoke the curative proviso in s. 686(1)(b)(iii) of the
Criminal
    Code
, R.S.C. 1985, c. C-46.

(6)

The Admissibility of the Gestures

(a)

Introduction

[52]

I
    am of the view that the trial judge did not err in admitting the gestures under
    the traditional hearsay exceptions. Moreover, to the extent that it was
    necessary to do so, the trial judge did not err in admitting the gestures under
    the principled approach to hearsay. While Nurse submitted that the evidence of
    the gestures was ambiguous and thus unreliable, he did not challenge the trial
    judges finding that the evidence was admissible under the traditional hearsay
    exceptions. Nor did he speak to the significance of this finding as it related
    to the application of the principled approach. In my view, these issues are not
    so easily divorced or compartmentalized. A finding that the gestures were
    assertions by conduct and admissible under two traditional hearsay exceptions
    is relevant to an assessment of the reliability of the evidence.

[53]

Accordingly,
    my analysis of this issue will begin by considering the nature of the gestures
    as assertions by conduct and their admissibility under the traditional
    exceptions. In light of this discussion, I will then consider the question of
    whether in these circumstances, absent a categorical challenge to the
    exceptions, a resort to the principled approach was necessary. Finally, I will
    address the admissibility of the evidence under the principled approach.

(b)

A Statement or Utterance?

[54]

The
    first order of business is to determine whether Mr. Kumars gestures are
    capable of being characterized as a statement or utterance. While statements
    and utterances are usually verbal, consisting of the spoken word, conduct may
    also convey meaning. As David M. Paciocco and Lee Stuesser,
The Law of
    Evidence
, 7th ed. (Toronto: Irwin Law, 2015) observe at p. 119: The nod
    of the head or the pointing of a finger speak loudly and are intended to
    communicate a message. Such conduct is described as assertive conduct, to be
    contrasted with non-assertive conduct which asks the trier of fact to infer a
    statement based on the declarants belief:
R. v. H.B
.
, 2016
    ONCA 953, 345 C.C.C. (3d) 206, at paras. 80-81.

[55]

In
R. v. Badgerow
, 2014 ONCA 272, 119 O.R. (3d) 399, leave to appeal
    refused, [2014] S.C.C.A. No. 254, Strathy J.A. (now C.J.O.) discussed
    assertions by conduct. He provided the following helpful illustrations, at
    para. 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 ("he's the one who did it" --
R. v. Underwood
,
    2002 ABCA 310, 130 C.C.C. (3d) 500); pointing at something ("that's
    it" --
R. v. Perciballi
(2001), 54 O.R. (3d) 346 (C.A.)); shrugging
    the shoulders ("I don't 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. [Emphasis in the
    original.]

See also
H.B
.
, at para. 80; and
R.
    v. Tran
, 2014 BCCA 343, 316 C.C.C. (3d) 270, at para. 90.

[56]

Similar
    to
R. v. Underwood
, 2002 ABCA 310, 170 C.C.C. (3d) 500, and
R. v. Perciballi
(2001), 54 O.R. (3d) 346 (C.A.), affd 2002 SCC 51, [2002] 2 S.C.R. 761 (both referred
    to in para. 107 of
Badgerow

quoted above), the question is
    whether Mr. Kumars pointing gestures could be considered to be assertive
    conduct. I accept that Mr. Kumars intended meaning may not have been as
    straightforward as those two cases. However, it was open to the trial judge to
    conclude that Mr. Kumars gestures were capable of conveying the strong
    incriminatory assertions that Nurse did this or Nurse was involved.

[57]

Moreover,
    the trial judge appreciated that the entire context in which the gestures were
    made would be before the jury, including the evidence that tied Nurse to Mr.
    Kumar, and the reason for Mr. Kumars attendance at the house on that day. The
    jury would also be apprised of how events transpired at the side of the road,
    beginning with P.C. Mitchells inquiry to Mr. Kumar (who did this?), followed
    by Nurse inserting himself into the situation in direct view of Mr. Kumar, and culminating
    in Mr. Kumars manifest intention to reveal something to the police and
    actively shaking off P.C. Mitchells attempts to restrain his hands in order to
    do so. It was an assertion by conduct. And like any assertion, verbal or
    otherwise, it would be up to the jury to determine its meaning. But this assertion
    by conduct was also hearsay. As Iacobucci J. stated at para. 162 of
Starr
,
    hearsay evidence is not defined by the nature of the evidence but rather by the
    use to which the evidence is sought to be put. In this case, the Crown sought
    to use the assertions to implicate Nurse in the murder of Mr. Kumar.

(c)

The Hearsay Exceptions

[58]

The
    trial judge analyzed the admissibility of the utterances under two common law
    hearsay exceptions (i.e., dying declaration and spontaneous utterance, also
    known as
res gestae
), as well as the principled approach to hearsay.

[59]

Since
    adopting the principled approach to hearsay, the Supreme Court has confirmed
    the continuing relevance of the traditional exceptions to the hearsay rule: see
Starr
, at paras. 202-207, per Iacobucci J.;
Mapara
, at para.
    15; and
Khelawon
, at paras. 42, 60. In
Khelawon
, at para. 60,
    Charron J. held that, if a trial judge determines that evidence falls within
    one of the common law exceptions, this finding is conclusive, and the
    evidence is admissible.

[60]

In
Mapara
, the court recognized that this conclusion may be displaced
    when the exception itself is challenged: at para. 15; see also
Khelawon
,
    at para. 60. That is not the case here; neither exception is under attack on a
    categorical basis.

[61]

The
    Supreme Court has also recognized that, in rare cases, evidence that would
    otherwise fall within a valid hearsay exception may be excluded if it does not
    meet the requirements of necessity and reliability in the particular
    circumstances of the case. In
Starr
, Iacobucci J. wrote, at para. 214:
    However, I wish to emphasize that these cases will no doubt be unusual, and
    that the party challenging the admissibility of evidence falling within a
    traditional exception will bear the burden of showing that the evidence should
    nevertheless be inadmissible. See also
Mapara
, at para. 15.

[62]

In
    this court, the parties placed little emphasis on the role of the traditional
    exceptions. Rather, they accepted the applicability of both exceptions, but focused
    their submissions solely on the principled approach to hearsay.

[63]

In
    my view, it is important to explore why the evidence is admissible under the
    two common law exceptions in play in this case, and how those exceptions themselves
    address reliability concerns associated with hearsay evidence. As I will
    discuss further, and Iacobucci J. noted in
Starr

at para. 212,
    evidence falling within a traditional exception to the hearsay rule is
    presumptively admissible, as these exceptions traditionally incorporate an
    inherent reliability component. Both exceptions engaged in this case are
    rooted in an acceptance that the circumstances in which the exception will be
    met are ones in which there is only a remote possibility of fabrication or
    concoction. The requirements or test for meeting these exceptions are
    strictly adhered to by courts, presumably in an effort to ensure that the
    exception is only applied in cases that remain true to the rationale
    underpinning the exception.

[64]

As
    noted above, in rare cases it is possible that despite falling with a
    traditional exception, the evidence may not meet the requirements of necessity
    and reliability. Indeed, Iacobucci J. recognized at para. 155 of
Starr
that 
in the event of a conflict
    between the two, it is the principled approach that must prevail

. However, the party challenging the
    presumptive admissibility of the evidence bears the burden of establishing a
    rare case.

[65]

In
    the circumstances of the case at bar, the trial judge did not explain why he
    found that the rare cases threshold set out in
Starr

and
Mapara
had been met such that it was appropriate to consider the otherwise admissible
    hearsay evidence under the principled approach.

(i)

Dying Declaration

[66]

As
    discussed above, one of the two traditional exceptions relied upon by the Crown
    was the dying declaration exception. The dying declaration exception is often
    traced back to
The King v. Woodcock
(1789), 1 Leach 500, 168 E.R. 352
    (K.B.). Chief Baron Eyre explained the principle underlying the exception in
Woodcock
,
    at p. 502:

Now the general principle on which this species of evidence is
    admitted is, that they are declarations made in extremity, when the party is at
    the point of death, and when every hope of this world is gone:
when every
    motive to falsehood is silenced, and the mind is induced by the most powerful
    considerations to speak the truth
; a situation so solemn, and so awful, is
    considered by the law as creating an obligation equal to that which is imposed
    by a positive oath administered in a Court of Justice. [Emphasis added.]

In an early decision from this court in
The King
    v. Sunfield
(1907), 13 C.C.C. 1 (Ont. C.A.), Moss C.J.O. followed a
    similar approach, relying on another English case,
The Queen v. Jenkins
(1869), L.R. 1 C.C.R. 187, at p. 192. He accepted any one or all of the
    following formulations as capturing the essence of the exception: every hope
    of this world gone; settled, hopeless expectation of death; and any hope of
    recovery, however slight, renders the evidence of such declarations
    inadmissible: at pp. 5-6.
[1]

[67]

The
    Supreme Court has discussed the dying declaration exception from time to time.
    In
Chapdelaine v. The King
, [1935] S.C.R. 53, Duff C.J. pronounced the
    test for admissibility in the following way, at p. 58:

First of all, he must determine the question whether or not the
    declarant at the time of the declaration entertained a settled, hopeless
    expectation that he was about to die almost immediately. Then, he must consider
    whether or not the statement would be evidence if the person making it were a
    witness.

See also
Schwartzenhauer v. The King
, [1935]
    S.C.R. 367.

[68]

In
    the ensuing years, the Supreme Court has occasionally made reference to the
    dying declaration exception; however, the court has not been called upon to
    apply this hearsay exception: see
R. v. McGloan
, [1976] 2 S.C.R. 842,
    at pp. 849-850, per Ritchie J., where the exception was referred to in passing.

[69]

Reference
    is most often made to dying declarations in the Supreme Courts developing
    jurisprudence on the principled approach to hearsay, providing a handy example
    of the former approach, based on categories or pigeon-hole exceptions: see e.g.
R. v. Khan
, [1990] 2 S.C.R. 531, at p. 540;
R. v. Blackman
,
    2008 SCC 37, [2008] 2 S.C.R. 298, at para. 34.

[70]

In
Starr
, Iacobucci J. referred to dying declarations as an example of a
    hearsay exception that does not negate hearsay dangers, but provides
    circumstantial guarantees of reliability: at para. 212; see also
Khelawon
,
    at para. 64. In her majority reasons in
Bradshaw
, Karakatsanis J.
    said, at para. 22: These traditional exceptions are based on admitting types
    of evidence that were considered necessary and reliable, such as dying
    declarations. Pursuing a similar theme in
R. v. Youvarajah
, 2013 SCC
    41, [2013] 2 S.C.R. 720, Karakatsanis J. said, at para. 20: Exceptions to the
    hearsay rule developed for statements carrying certain guarantees of inherent
    trustworthiness, often because of the circumstances in which they were made
    (for example, dying declarations and declarations that are adverse in
    interest).

[71]

In
    Canada, academics have operationalized this hearsay exception in slightly
    different, but essentially similar ways. In Sidney L. Lederman, Alan W. Bryant &
    Michelle K. Fuerst,
The Law of Evidence in Canada
, 5th ed. (Toronto:
    LexisNexis, 2018), the authors list the following three requirements, at pp.
    377-379: (a) a settled or hopeless expectation of death; (b) the accused must
    be charged with homicide; and (c) the injuries are those of the declarant and
    are the subject of the charge.

[72]

In
The Law of Evidence
, Paciocco and Stuesser list four requirements, at p.
    177: (a) the deceased had a settled, hopeless expectation of almost immediate
    death; (b) the statement was about the circumstances of the death; (c) the
    statement would have been admissible if the deceased had been able to testify;
    and (d) the offence involved is the homicide of the deceased. This formulation
    was favoured by the trial judge in this case.

[73]

Dying
    declarations can be very powerful. After all, the statements come from the very
    person who was killed, speaking about the circumstances of their death, often moments
    before the solemn event of their death. However, these inherent strengths are
    counterbalanced against the obvious inability to cross-examine the declarant.
    It is for this reason that the courts have insisted on strict adherence to the
    prerequisites of the exception before granting admissibility: see Lederman,
    Bryant & Fuerst, at p. 377. Davis J. in
Schwartzenhauer
, at p.
    369, underscored this caution by  adopting the following passage from Byles J.
    in
Reg. v. Jenkins
(1869), 11 Coxs Cr. C. 250:

These dying declarations are to be received with scrupulous, I
    had almost said with superstitious, care. The declarant is subject to no
    cross-examination. No oath need be administered. There can be no prosecution
    for perjury. There is always danger of a mistake that cannot be corrected.

[74]

In
    recent times, at least in Canada, this exception is not engaged very often: see,
    however,
R. v. Aziga
(2006), 42 C.R. (6th) 42 (Ont. S.C.);
R. v.
    Hall
, 2011

ONSC 5628. Nevertheless, there is no reason to question
    the continued legitimacy of this hearsay exception. This is demonstrated in the
    concurring reasons of Moldaver J. in
R. v. Baldree
, 2013 SCC 35,
    [2013] 2 S.C.R. 520, in which he rejected the defence suggestion that the drug
    purchase call in question was a disingenuous, fabricated call, designed to
    deflect attention away from the true drug dealer. Moldaver J. said the
    following, at para. 115:

I caution thus against inferring suspicious circumstances in
    these types of cases absent any evidence suggesting as much.  If that were our
    approach, many of our time-tested hearsay exceptions would unravel.  To state
    the obvious, a dying man does not lose his ability to lie.  And yet, in the
    case of dying declarations, we do not indulge in speculation about potential
    fabrication.  Instead, the law recognizes that a motive to lie in such
    circumstances is at best remote (
R. v. Woodcock
(1789), 1 Leach 500, 168
    E.R. 352 (K.B.), at p. 353).  In other words, we recognize a norm of human
    behaviour for what it is  a norm.

[75]

I
    acknowledge that this passage focuses on declarant sincerity, which is not the issue
    in this case. Nevertheless, this passage stands as a compelling recent
    endorsement of underlying principles for the dying declaration exception to the
    hearsay rule as enunciated in
Woodcock
.

[76]

There
    can be no doubt that the trial judge correctly identified and applied the test
    for admissibility under this exception. Apart from this case involving an
    assertion by conduct, the attending circumstances were paradigmatic of a dying
    declaration at common law. Mr. Kumars gestures were admissible under this exception.

(ii)

Spontaneous Utterance
[2]

[77]

The
    gestures were equally admissible under the spontaneous utterance exception to
    the hearsay rule, although this exception seemed to play a lessor role in the
    trial judges analysis.

[78]

Like
    the dying declaration exception, the spontaneous utterance exception has long
    been recognized in Canada. It is sometimes referred to alongside dying
    declarations, probably because they share certain functional features. The
    trial judge noted, at para. 22 of the second ruling, that a dying declaration is
    an example of a spontaneous utterance. While this may not always be the case, the
    two exceptions sometimes overlap, as they did in this case.

[79]

The
    rationale for the spontaneous utterance exception was explained in the
    well-known case of
R. v. Khan
(1988), 42 C.C.C. (3d) 197 (Ont. C.A.),
    affd [1990] 2 S.C.R. 531, in which a medical doctor was accused of sexually
    assaulting a child in his care. In acquitting the accused, the trial judge
    excluded a statement made by the child to her mother, shortly after the alleged
    incident. The trial judge found that the statement lacked sufficient
    contemporaneity to be admitted as a spontaneous utterance.

[80]

This
    court allowed an appeal from acquittal, partly on the basis that the trial
    judge had construed the spontaneous utterance exception too narrowly. Relying
    on
Ratten v. The Queen
, [1972] A.C. 378 (P.C.), Robins J.A. described
    the exception in the following way, at p. 207:

a spontaneous statement made under the stress or pressure of a
    dramatic or startling act or event and relating to such an occasion may be
    admissible as an exception to the hearsay rule.
The stress or pressure of
    the act or event must be such that the possibility of concoction or deception
    can be safely discounted. The statement need not be made strictly
    contemporaneous to the occurrence so long as the stress or pressure created by
    it is ongoing and the statement is made before there has been time to contrive
    and misrepresent
. The admissibility of such statements is dependent on the
    possibility of concoction or fabrication. Where the spontaneity of the
    statement is clear and the danger of fabrication is remote, the evidence should
    be received. [Emphasis added.]

The Privy Councils decision in
Ratten
was
    previously adopted by this court in
R. v. Clark
(1983), 42 O.R. (2d)
    609 (C.A.), leave to appeal refused, [1983] S.C.C.A. No. 253.

[81]

The
    decision of this court in
Khan
was upheld by the Supreme Court, but
    for different reasons. The Supreme Court held that the trial judge had
    correctly excluded the mothers evidence as to the childs statements based on
    the spontaneous utterance exception. McLachlin J. (as she then was) explained,
    at p. 540:

I am satisfied that applying the traditional tests for
    spontaneous declarations, the trial judge correctly rejected the mother's [evidence
    as to the childs] statement.
The statement was not contemporaneous, being
    made fifteen minutes after leaving the doctor's office and probably one-half
    hour after the offence was committed.
Nor was it made under pressure or
    emotional intensity which would give the guarantee of reliability upon which
    the spontaneous declaration rule has traditionally rested. [Emphasis added.]

The court then introduced the principled approach to
    hearsay evidence, finding that the childs statement to her mother was nevertheless
    admissible on the basis of necessity and reliability.

[82]

This
    court revisited the scope of the spontaneous utterance exception in
R. v.
    Dakin
(1995), 80 O.A.C. 253 (C.A.). The appellant argued that
Khan
had made the test for admission more stringent by insisting on strict contemporaneity.
    In a judgment released By the Court, it was held, at para. 20:

We do not accept the submission that the Supreme Court of
    Canada decision in
Khan
- in which there appears no reference to
Clark
- has changed the law regarding spontaneous declarations as stated in
Clark
and has reinstated the principle of strict contemporaneity enunciated in some
    earlier authorities. The admissibility of the declaration is assessed not
    simply by mechanical reference to time but rather in the context of all of the
    circumstances obtaining at the time, including those which tell against the
    possibility of concoction or distortion:
McCormick on Evidence
, 4th ed.
    (1992), para. 272, at pp. 218-219.

See also
R. v. Nicholas
(2004), 70 O.R. (3d)
    1, at pp. 22-23 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 225;
R.
    v. Nguyen
, 2015 ONCA 278, 125 O.R. (3d) 321, at paras. 144-153, leave to
    appeal refused, [2015] S.C.C.A. No. 365;
R. v. Carty
, 2017 ONCA 770, 356
    C.C.C. (3d) 309, at paras. 8-12; and
R. v. Khan
, 2017 ONCA 114, 136
    O.R. (3d) 520, at para. 15, leave to appeal refused, [2017] S.C.C.A. No. 139.

[83]

Mr.
    Kumars assertions by conduct fell squarely within this exception. His gestures
    were made within minutes of the attack, just after his attackers had fled. The gestures
    were made as a direct result of the harrowing event that he continued to experience,
    while he lay on the road dying. Completely overcome by the events, there was no
    opportunity for concoction or speculation. Nurse does not submit otherwise.
    Again, the question returns to the alleged ambiguity of the gesture.

[84]

In
    considering the application of this exception, I refer to
R. v. Andrews
,
    [1987] A.C. 281, [1987] 1 All E.R. 513 (H.L.), the facts of which bear some
    similarity to this case. Donald Andrews was charged with the murder of
    Alexander Morrow. Mr. Morrow had been stabbed in his apartment. Shortly
    afterwards, he was found on the landing on the floor below his apartment
    bleeding profusely from a deep stomach wound. Two police officers arrived and
    started to perform first aid. Mr. Morrow was asked how he received his
    injuries. One officer testified that Mr. Morrow identified two attackers,
    including a man he knew as Donald. The other officer, who was not positioned
    as close to Mr. Morrow, thought that he said Donovan and wrote this down in
    his notebook. Upon seeing this notation, the first officer told the second that
    he was wrong. When the second officer testified at trial, he said that he heard
    the name Don quite clearly, but Mr. Morrows voice mellowed and got quieter
    while completing the name. Moreover, he spoke with a Scottish accent. Ultimately,
    the evidence was admitted as a spontaneous utterance. The decision of the trial
    judge was upheld in the Court of Appeal (Criminal Division).

[85]

In
    further upholding the decision, the House of Lords clarified the law governing
    the spontaneous utterance exception, going so far as to provide trial judges
    with guidelines for admissibility on this basis: see pp. 300-301. I need not
    repeat them here. However, I note that their Lordships endorsed a functional
    approach. As Lord Ackner said, at p. 301: Thus the judge must be satisfied
    that the event, which provided the trigger mechanism for the statement, was
    still operative. The fact that the statement was made in answer to a question
    is but one factor to consider under this heading. These words have direct
    application in this case.

[86]

Andrews
shares another feature with this case  a dispute between two police officers
    about what the victim actually said (
Andrews
) or did (i.e., the
    sequence of Mr. Kumars gestures). Like this case, the two officers in
Andrews
were primarily focused on their lifesaving efforts. As Lord Ackner said, at p.
    301: As to the possibility of error in the facts narrated in the statement, if
    only the ordinary fallibility of human recollection is relied upon, this goes
    to the weight to be attached to and not the admissibility of the statement and
    is therefore a matter for the jury.

[87]

Mr.
    Kumar made his gestures moments after being viciously attacked. The trial judge
    acknowledged that there was not strict contemporaneity. He said, at para. 22 of
    the second ruling: While not contemporaneous, there is a close enough temporal
    connection that I am satisfied that the gesture is closely associated to the
    stabbing. All other requirements were easily satisfied. Moreover, the
    admission of these gestures for their truth was well aligned with the rationale
    of the spontaneous utterance exception  they were made in response to being
    attacked where there was no realistic concern about concoction or fabrication.

[88]

The
    trial judge was right to conclude that Mr. Kumars gestures were admissible
    under the spontaneous utterance exception to the hearsay rule.

(iii)

Resort to the Principled Approach: Is This a Rare Case?

[89]

In
    this court, no submissions were directed to when it is appropriate to go beyond
    the traditional exceptions and consider threshold admissibility in accordance
    with the principled approach to hearsay. It is not automatic. In
Starr
,
    and then
Mapara
, the Supreme Court insisted that the occasions on
    which this will be appropriate are rare or unusual. The trial judge thoroughly
    canvassed this issue with the parties during argument. He made passing
    reference to it in his second ruling, at para. 5, noting that Nurses counsel
    at trial contended that this was a rare case.

[90]

There
    is little guidance in the case law as to what constitutes a rare case for
    these purposes.
Mapara
, provides one example. That case involved a
    challenge to the co-conspirators exception to the hearsay rule. The Supreme Court
    concluded that categorically, the exception was consistent with the principled
    approach. In the alternative, it was argued that, even though the statements in
    question satisfied the requirements of the exception, the specific facts of the
    case still left lingering reliability concerns. The appellant relied on the
    motives of one of the principal players to falsely implicate Mapara in the
    murder. There was also evidence that one of witnesses was mistaken about the
    timing of one of the conversations. McLachlin C.J. rejected these submissions
    on the basis that the concerns raised were inherent to any conspiracy, and were
    assuaged in the analysis to determine whether the exception itself complied
    with the principled approach. Any weaknesses in the evidence were issues of
    ultimate reliability rather than threshold reliability. She stated, at paras.
    36-37:

These concerns, with the exception of the discrepancy as to the
    date of the conversation, do not go beyond concerns already addressed in the
    analysis of whether the co-conspirators' exception complies with the principled
    approach to the hearsay rule. They are characteristic of any conspiracy. Any
    weaknesses go to the ultimate weight of the evidence, which is for the jury to
    decide. Nor does [the] error on when the conversation took place merit
    rejection of the evidence. This problem is one of ultimate reliability that the
    jury can decide.

It follows that the appellant has not established that the
    evidence to which he objects constitutes one of those "rare cases"
    where evidence falling within a valid exception to the hearsay rule fails, in
    the peculiar circumstances of the case, to satisfy the indicia of necessity and
    reliability necessary for the admission of hearsay evidence.

[91]

This
    aspect of
Mapara
was applied in
R. v. Kler
, 2017 ONCA 64, 345
    C.C.C. (3d) 467, which also involved a rare case argument related to evidence
    falling within the co-conspirators exception. Watt J.A. wrote that the onus is
    on the party wishing to invoke the rare case exception to demonstrate that the
    evidence does not meet the requirements of necessity and reliability: at para.
    75, see
Starr
, at para. 214. He concluded this was not a rare case:
    at paras. 93-94. He explained the interaction between the common law exceptions
    and the principled approach in the following passage, at para. 79:

It is difficult to conclude that evidence falling under the
Carter
rule would lack the indicia of necessity and reliability required for the
    admission of hearsay under the principled approach.
Apart from the most
    exceptional cases, the argument is exhausted where the traditional exception is
    found to be compliant with the principled approach
:
Mapara
, at para.
    34. [Emphasis added.]

[92]

Mapara
and
Kler
suggest that the basis for asserting a rare case must
    extend beyond the reliability concerns inherently captured in the hearsay
    exception itself. It must be unique to the case at hand. Further, the
    reliability concerns must be issues that go to threshold reliability, rather
    than weaknesses in the evidence that go to weight and can properly be assessed
    by the trier of fact in determining ultimate reliability.

[93]

In
    this case, neither common law exception was challenged on a categorical basis. Nor
    am I aware of any cases that cast doubt on the compliance of either exception
    with the principled approach. Consequently, Nurse stands in the same position
    as the appellants in
Mapara
and
Kler
 he seeks to engage the
    principled approach in the face of presumptive admissibility under valid common
    law hearsay exceptions. In fact, the incline is even steeper for Nurse because
two
valid exceptions are squarely engaged.

[94]

Realistically,
    the only thing that Nurse can point to as unique in this case is that the
    communication is conduct-based, not verbal. Although the two police officers
    gave slightly different versions of the sequence of events, this in itself is not
    exceptional. The real issue is not
whether
Mr. Kumar pointed at Nurse,
    but
why
. The only difference is that instead of actually saying Nurse
    did this to me or Nurse was part of this, Mr. Kumars gestures were capable
    of communicating the same information. Further, any concern as to whether the
    gestures were capable of conveying meaning, or conveying this meaning in
    particular, was addressed by the trial judges response to the issue of whether
    a gesture is capable of being a dying declaration: first ruling, at para. 36.
    Whether conduct or implied statements are capable of conveying meaning is
    addressed by the law governing assertions by conduct which recognizes that
    certain kinds of conduct may be assertive and thus capable of communicating a
    message.  Ultimately, it was for the jury to decide what Mr. Kumar was
    attempting to convey, just as the jury in
Andrews
was required to
    grapple with whether Mr. Morrow said Donald (which would have been
    inculpatory) or Donovan (which may have been exculpatory). In both cases, the
    juries were well-equipped to do so.

[95]

I
    would dismiss the appeal on this basis. The gestures were assertions by conduct
    that fit squarely within the dying declaration and spontaneous utterances
    exceptions to the hearsay rule. Both rules sufficiently address the reliability
    concerns raised by the circumstances of this case. In other words, this is not
    a rare case within the meaning of
Starr
,
Mapara
, and
Kler
that requires the application of the principled approach as a precondition to
    admissibility.

(iv)

Applying the Principled Approach

[96]

In
    the alternative, if it is necessary to evaluate this evidence under the
    principled approach, I would affirm the trial judges conclusions on this
    issue.

[97]

The
    question of whether Mr. Kumars gestures ought to have been admitted is a
    question of law. However, the factual findings that feed that determination are
    entitled to deference on appeal. Accordingly, absent an error in principle, the
    trial judges conclusions about threshold reliability are entitled to
    deference: see
R. v. Couture
, 2007 SCC 28, [2007] 2 S.C.R. 517, at
    para. 81;
Blackman
, at para. 36; and
Youvarajah
, at para. 31.

[98]

In
    his analysis, the trial judge relied heavily upon
Khelawon
. Roughly 4
    ½ years later, we are asked to review his conclusions through the lens of
Bradshaw
,
    which prescribes what is arguably a more exacting analysis of reliability.

[99]

Bradshaw
was concerned with the issue of when a trial judge may rely upon corroborative
    evidence to conclude that threshold reliability is established: at para. 3.
Bradshaw

was a murder case and the hearsay statement in issue was made by a former
    co-accused, Thielen, who refused to testify at Bradshaws trial. Applying the
    principled approach, the trial judge admitted part of the prior statement. He
    subsequently gave a warning under
Vetrovec v. The Queen
, [1982] 1
    S.C.R. 811 concerning this evidence.

[100]

Importantly, none of
    the traditional hearsay exceptions was operative in
Bradshaw
.
    Admissibility had to be established from the ground up, based solely on the
    principled approach. This case is different because Mr. Kumars gestures are
    admissible under two presumptively valid exceptions, both of which embody
    strict reliability safeguards.

[101]

In her discussion of
    threshold reliability, Karakatsanis J. in
Bradshaw

described
    the two ways in which threshold reliability may be approached, at para. 27:

The hearsay dangers can be overcome and threshold reliability
    can be established by showing that (1) there are adequate substitutes for
    testing truth and accuracy (procedural reliability) or (2) there are sufficient
    circumstantial or evidentiary guarantees that the statement is inherently
    trustworthy (substantive reliability) (
Khelawon
, at paras. 61-63;
Youvarajah
,
    at para. 30).

See also
R. v. M.G.T
.
, 2017 ONCA 736,
    357 C.C.C. (3d) 109, at paras. 117-118.

[102]

In this case, because
    Mr. Kumar is dead, procedural reliability (i.e., an oath, cross-examination,
    video recording, etc.) is not an option for establishing threshold reliability.
    The focus must be on substantive reliability. This is gauged by the
    circumstances in which the statement was made, and any evidence that
    corroborates or conflicts with the statement:
Bradshaw
, para. 30; and
Blackman
,
    at para. 55. As Karakatsanis J. said at para. 40 of
Bradshaw
: substantive
    reliability is concerned with whether the circumstances, and any corroborative
    evidence,
provide a rational basis to
reject
alternative
    explanations for the statement
, other than the declarants truthfulness or
    accuracy (italics in original; underlining added).

[103]

Bradshaw
also
    sharpened the focus of what may be relied upon as corroborative evidence: see paras.
    33-43. As Karakatsanis J. explained, at para. 44:

In my view, the rationale for the rule against hearsay and the
    jurisprudence of this Court make clear that not all evidence that corroborates
    the declarants credibility, the accuseds guilt, or one partys theory of the
    case, is of assistance in assessing threshold reliability.
A trial judge can
    only rely on corroborative evidence to establish threshold reliability if it
    shows, when considered as a whole and in the circumstances of the case, that
    the only likely explanation for the hearsay statement is the declarants
    truthfulness about, or the accuracy of, the material aspects of the statement.
If the hearsay danger relates to the declarants sincerity, truthfulness will
    be the issue.
If the hearsay danger is memory, narration, or perception,
    accuracy will be the issue.
[Emphasis added.]

See also
R. v. Mohamad
, 2018 ONCA 966, 369
    C.C.C. (3d) 211, at paras. 100-104. Hourigan J.A. noted in
R. v. Tsega
,
    2019 ONCA 111, at para. 26, that the standard set out in
Bradshaw
will not be met where the corroborative evidence is
equally
consistent
    with another explanation. The corroborative evidence must show on a balance of
    probabilities that the only likely explanation for the statement is the truth
    or accuracy of the material aspects of the statement (emphasis added).

[104]

In
Bradshaw
,
    at para. 57, Karakatsanis J. set out a four step framework to determine whether
    corroborative evidence is of assistance in the substantive reliability inquiry:

1.   identify
    the material aspects of the hearsay statement that are tendered for their
    truth;

2.   identify
    the specific hearsay dangers raised by those aspects of the statement in the
    particular circumstances of the case;

3.   based on
    the circumstances and these dangers, consider alternative, even speculative,
    explanations for the statement; and

4.   determine
    whether, given the circumstances of the case, the corroborative evidence led at
    the
voir dire
rules out these alternative explanations such that the
    only remaining likely explanation for the statement is the declarants
    truthfulness about, or the accuracy of, the material aspects of the statement.

[105]

Beginning with the
    first part of the framework, as discussed above the material part of the
    gestures tendered for its truth was that in pointing to Nurse, Mr. Kumar was
    implicating him in the murder. Turning to the second part of the analysis, in
    her submissions on behalf of Nurse, Ms. Verner said that in this case narration
    is the hearsay danger, making accuracy the issue. She argued that there was no
    way for the jury to evince what Mr. Kumar meant from his gestures, which were
    equally consistent with Mr. Kumar reaching out to a friend in a very stressful
    situation. This leads to the third part of the framework. The
only
alternative explanation of the gestures offered by the defence at trial, and on
    appeal, was that, by pointing at Nurse, Mr. Kumar was reaching out to a friend.
    In my view, in the circumstances of the case, the corroborative evidence rules
    out this alternative explanation such that the only likely explanation for the
    gestures is the material aspects for which they were tendered by the Crown.

[106]

This case does not
    involve an incomplete utterance, as in
R. v. Ferris
, 1994 ABCA 20,
    149 A.R. 1, affd [1994] 3 S.C.R. 756, in which Conrad J.A. found, at para. 17,
    there exists no circumstances or context from which the true meaning of the
    words can be inferred. See also
Badgerow
, at paras. 143-150. Because
    the listener in
Ferris

did not hear what was said immediately
    before or after the utterance at issue, the lack of context rendered its
    meaning speculative and its probative value  tenuous:
Ferris
, SCC,
    at p. 756. Here, the full context in which Mr. Kumar made his gestures was
    available to assist in giving meaning to the gestures.

[107]

Two important events
    occurred just before Mr. Kumar made his gestures. First, and similar to
Andrews
,
    Mr. Kumar was asked by P.C. Mitchell who did this? Second, Nurse arrived on
    the scene and started talking. He said a number of things that were proven to
    be demonstrably false. For example, he initially said that Mr. Kumar had been
    dumped from a car by three men. He then said that he had actually witnessed Mr.
    Kumar being attacked by a black man with dreadlocks. Nurse told the officers
    that he was Mr. Kumars friend, but then asked P.C. Bucsis if he could leave, when
    it was obvious to everyone present that his friend Mr. Kumar was mortally
    wounded.

[108]

The theory that Mr.
    Kumar pointed to Nurse because he was reaching out to a friend was shattered by
    the surrounding evidence. The corroborative evidence relied upon by the Crown
    indisputably proved that Nurse and Mr. Kumar were not friends. The BBM
    correspondence between the appellants overwhelmingly illustrated Nurses hatred
    of Mr. Kumar. Similarly, there is no indication that Mr. Kumar regarded Nurse as
    a friend. Theirs was an unpleasant business relationship. Mr. Kumar had just threatened
    to evict Nurse from the house. His visit to the house that day was not a social
    call; he went there expecting to collect rent arrears, not knowing that Nurse
    had other plans. This corroborative evidence was not equally consistent with
    the alternative explanation that Mr. Kumar was reaching out to a friend. The corroborative
    evidence relied upon by the trial judge, summarized at para. 32 of the second
    ruling, meets the standard set out in
Bradshaw
and was capable of
    supporting the threshold reliability of the evidence.

[109]

I return to the important
    issue of context. As Watt J.A. observed in
M.G.T.
, at para. 57:
    Without proper context it may be difficult, sometimes impossible, to tease out
    the meaning of words allegedly spoken. In this case, the fact that the police officers
    initially believed that Mr. Kumar was pointing to his friend demonstrates the
    importance of context. Their belief was premised on a false reality,
    constructed on Nurses lies. When the trial judge was tasked with determining
    threshold reliability, his decision was fully informed by compelling
    corroborating evidence that realistically pointed to a single conclusion  the
    gestures were meant to implicate Nurse in the terrible events that led to Mr.
    Kumar bleeding out on the side of the road.

[110]

To the extent that it
    was necessary for the trial judge to resort to the principled approach, I
    conclude that he reached the right conclusion, even though he did not have the
    benefit of the Supreme Courts decision in
Bradshaw
. I also note, with
    respect, that the trial judges reasons on the principled approach fail to
    reflect that, in the rare case scenario, it is the party that resists the
    admission of hearsay evidence otherwise admissible under a traditional
    exception who bears the onus of showing that the evidence should nevertheless
    be excluded: see
Starr
, at para. 214;
Mapara
, at paras. 15,
    37; and
Kler
, at para. 75. This only serves to fortify my conclusion
    that the trial judge was right to admit the evidence.

(v)

The Application of the Curative Proviso

[111]

The Crown argued that,
    if the gestures of Mr. Kumar should not have been admitted, this court should
    apply the curative proviso in s. 686(1)(b)(iii) of the
Criminal Code
.

[112]

I agree with this
    submission and would be prepared to apply the proviso. The evidence against Nurse
    was overwhelming. As has been discussed above, Nurses central involvement in
    the murder was established by the BBM chats, the forensic evidence which proved
    that he literally had Mr. Kumars blood on his hands (and some articles of his clothing),
    his peculiar behaviour at the scene, and his parade of demonstrably false
    statements to the police. Without the gestures, the verdict would inevitably
    have been the same:
R. v. Jolivet
, 2000 SCC 29, [2000] 1 S.C.R. 751,
    at para 46;
R. v. Sarrazin
, 2011 SCC 54, [2011] 3 S.C.R. 505, at para.
    24; and
R. v. Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 57.

(7)

The Crowns Closing Address

[113]

Nurse submitted that, even
    if the evidence of Mr. Kumars gesture was admissible, the Crowns closing
    address was improper and invited the jury to misuse the evidence in a manner that
    was prejudicial. Counsel for Nurse pointed to passages from the Crowns closing
    in which he invited the jury to put themselves in the mind of Mr. Kumar as he
    was dying and suggested that they too would have wanted to point to their
    killer. Nurse also argued that the Crowns closing address invited to the jury
    to approach this evidence on the assumption that Nurse was guilty.

[114]

I would not give
    effect to either of these submissions. First, there was no objection to the
    Crowns jury address. These points were raised for the first time on appeal.

[115]

Second, the Crown did
    not invite the jury to consider the case based on prejudice or sympathy. The
    trial judge specifically warned the jury against deciding the case in this way,
    providing them with the standard instruction on the irrelevance of prejudice
    and sympathy: see David Watt,
Watts Manual of Criminal Jury Instructions
,
    2nd ed. (Toronto: Carswell, 2015), at p. 242.

[116]

Third, and most
    importantly, evaluating the authenticity of a dying declaration naturally invites
    consideration of what a person in such dire circumstances would be thinking at
    the time. The defence attempted to cast doubt on the meaning of Mr. Kumars
    purported utterances. The Crown was entitled to urge the jury to consider the
    situation from Mr. Kumars perspective. In doing so, the Crown did not cross
    the line and invite the jury to consider the evidence improperly.

[117]

Similarly, the Crown
    did not encourage the jury to reason back from a conclusion of guilt. All the
    Crown did was ask the jury to consider Mr. Kumars gestures in the context of
    all of the evidence at trial. There was nothing improper in this approach;
    indeed, it was mandatory that the jury do so.

[118]

I would dismiss this
    ground of appeal.

E.

the search of the blackberry devices

(1)

Introduction

[119]

On the day that the
    appellants were arrested, November 10, 2011, the police seized a BlackBerry
    Curve from Nurse and a BlackBerry Torch from Plummer. BBM chats between the two
    men were eventually extracted from these devices and formed a crucial part of
    the Crowns case. The appellants allege that this data was seized unlawfully
    and should have been excluded from evidence, pursuant to ss. 8 and 24(2) of the
Charter
. The trial judge disagreed.

[120]

At trial, the
    appellants challenged the validity of the warrant authorizing the seizure and
    search of the devices, and the conduct of the police in examining the devices.
    These arguments were rejected by the trial judge:
R. v. Nurse and Plummer
,
    2014 ONSC 1779 (original reasons).
[3]

[121]

On appeal, the
    appellants pursue only one argument. When the police originally analyzed the
    data on the appellants devices, the software that was used only revealed BBM
    chats showing some interaction between the appellants. However, about a year
    later, the software had been updated. The police analyzed the data again, this
    time successfully retrieving BBM chats that revealed a plan to kill Mr. Kumar.
    The appellants argue that this second inspection or analysis was a fresh search,
    not authorized by the first warrant. In other words, a new warrant was
    required.

[122]

The trial judge
    rejected these arguments, holding that the police conduct in 2012 was properly
    characterized as a second analysis of data that had already been reproduced, not
    a further search. He concluded that the police did not need another warrant to
    conduct the second analysis and s. 8 of the
Charter
was not violated:
    see original reasons, at paras. 65-66, 73; and
R. v. Nurse and Plummer
,
    2014 ONSC 5989, 322 C.R.R. (2d) 262, at para. 7 (further reasons). For the
    reasons set out below, I agree with the trial judges conclusion.

(2)

The Relevant Facts and the Trial Judges Ruling

[123]

The appellants
    acknowledge that their BlackBerry devices were properly seized incident to
    their respective arrests. The phones were secured in an Ontario Provincial
    Police (OPP) vault and were not analyzed until the police obtained a warrant
    on November 16, 2011. The warrant authorized the police to re-seize the phones
    and to create images of the data on the phones for the purposes of forensic
    analysis. On its face, the warrant gave the police a 15 hour window to execute
    the warrant. Before the trial judge, the appellants argued that the analysis of
    the data on the devices had to be completed within this timeframe. The trial
    judge rejected this interpretation, holding that the timeframe on the warrant related
    to the seizure of the devices, not the time within which the police had to
    analyze the data on the phones, post seizure: original reasons, at paras. 45,
    52.

[124]

After obtaining the
    warrant, the devices were taken to the E-Crimes section of the OPP. Because the
    devices were password protected, the E-Crimes section was unable to extract any
    data. On November 23, 2011, the OPP sent the devices to the RCMP Technological
    Crime Unit (TCU) as it was the only police force that had the expertise to
    retrieve data from password locked Blackberry devices.

[125]

The TCU made forensic
    copies of the memories of the phones by a process known as physical extraction.
    This was done on Nurses device on November 25, 2011, and Plummers device on December
    8, 2011. The memories of each phone were imaged and a BIN file was created
    for each device. These files contained the raw data. This data was then
    analyzed by software developed by a company called Cellebrite, which
    transformed the data into a readable form, revealing active and deleted
    content, including but not limited to BBM messages. The RCMP sent the raw data
    (i.e., the BIN files) and the results of the Cellebrite analysis back to the
    OPP. All of this data was stored on an OPP server. However, the results of the
    first Cellebrite analysis were quite limited.

[126]

Between 2011 and 2012,
    there were major improvements to the Cellebrite software. In November 2012, the
    OPP re-analyzed the contents extracted from the devices that were stored on its
    server. They were able to recover previously deleted BBM messages exchanged
    between the appellants that were highly incriminatory. The messages revealed a
    plan between Nurse and Plummer to kill Mr. Kumar.

[127]

The trial judge found
    that the second analysis of the extracted data did not violate the appellants
    rights under s. 8 of the
Charter
.

[128]

During argument before
    the trial judge, defence counsel for Plummer (who did not appear as counsel on
    this appeal) attempted to draw an analogy between the actions of the police in
    this case and a situation where the police search a home with an ultraviolet
    light. She argued that, if the police came into possession of a more powerful
    light after the initial search, they would not be permitted to return to the
    home without further judicial authorization.

[129]

The trial judge
    rejected this argument, which is premised on the characterization of a phone as
    a place. He found, at paras. 65-67 of his original reasons, that the process
    of using the 2012 Cellebrite software on the BIN files was properly
    characterized as a second analysis of data that had already been reproduced,
    not a further search into the contents of the phones:

Ms. Bojanowska's submissions are attractive. However, after
    reviewing the record before me,
I do not regard the conduct of the OPP in
    November of 2012 as a further search of a place.
The phone had been
    lawfully seized and the police were given access to the contents of the phone
    and made a copy of the contents by creating a binary file which was a download
    of raw data. As Cromwell J. in
R. v. Vu
[,2013 SCC 60, [2013] 3 S.C.R. 657]
    points out (at para.48) that once a warrant to search a computer is obtained,
    the police have the benefit of s. 487(2.1) and (2.2) of the
Code
, which
    allows the police to search,
reproduce
, and print data that they find.

In this case, once the data was reproduced or imaged, they
    analyzed the data.
I think it is more appropriate to characterize what the
    police did in 2012 as a second analysis of data that had been reproduced and
    not a more extensive and deeper search into the contents of the phone
.

The agreed statement of facts points out that the program that
    was used to examine the binary file Cellebrite was updated in 2012. As a result
    of the update the program was capable of
interpreting
more data. [Italics
    in original; underlining added.]

[130]

The trial judge
    concluded that the police did not require a further warrant to re-analyze the
    data in 2012: at para. 73. The second analysis of the data did not infringe s.
    8 of the
Charter
.

(3)

Analysis

[131]

The appellants
    argument on appeal is quite narrow. They do not challenge that: (1) their
    devices were lawfully seized upon searches incident to their arrests; (2) the
    police obtained a valid search warrant authorizing an analysis of the data on
    their devices; (3) the warrant permitted the police to create images of the
    data on the devices for the purpose of analysis; (4) the analysis of the data
    on the devices did not need to take place within any particular time frame, and
    certainly not within time range set out for the execution of the warrant; and (5)
    the images were lawfully analyzed by the initial use of the Cellebrite
    software. Their sole argument on appeal is that the second analysis was a
    search and therefore required a further warrant.

[132]

I agree with the trial
    judges analysis that the actions of the police in interpreting the data on a
    second occasion, using updated software, did not amount to a new search that
    required fresh authorization. Instead, it was another interpretation, inspection,
    or analysis of materials already lawfully seized. It involved no additional or
    further invasion of the appellants privacy interests.

[133]

In analyzing this
    issue, it is important to consider the essential nature of computers and other
    digital devices. They challenge traditional definitions of a building,
    receptacle or place within the meaning of s. 487 of the
Criminal Code
.
    In
R. v. Marakah
, 2017 SCC 59, [2017] 2 S.C.R. 698, McLachlin C.J.
    said, at para. 27: The factor of place was largely developed in the context
    of territorial privacy interests, and digital subject matter, such as an
    electronic conversation, does not fit easily within the strictures set out by
    the jurisprudence. See also
R. v. Jones
, 2011 ONCA 632, 107 O.R. (3d)
    241, at paras. 45-52. Similarly, in
R. v. Vu
, 2013 SCC 60, [2013] 3
    S.C.R. 657, Cromwell J. said, at para. 39: computers are not like other
    receptacles that may be found in a place of search. The particular nature of
    computers calls for a specific assessment of whether the intrusion of a
    computer search is justified, which in turn requires prior authorization.

[134]

Because of these
    conceptual differences, arguments by analogy to traditional (i.e., non-digital)
    search scenarios will not always be helpful. For example, the trial judge was
    right to reject the ultraviolet light testing scenario advanced by trial
    counsel. It does not work in this context because the second ultraviolet light analysis
    would require re-entry into the premises resulting in a separate invasion of
    privacy.

[135]

The re-inspection or
    re-interpretation of the raw data harvested from the appellants devices did
    not involve a further invasion of privacy. It is not necessary in this case to
    identify precisely when the appellants privacy rights were defeated in favour
    of law enforcement. Nevertheless, their privacy rights were implicated when
    their devices were seized upon arrest. In
R. v. Reeves
, 2018 SCC 56, 427
    D.L.R. (4th) 579, Karakatsanis J. held at para. 30: When police seize a
    computer, they not only deprive individuals of
control
over intimate
    data in which they have a reasonable expectation of privacy, they also ensure
    that such data remains
preserved
and thus subject to potential future
    state inspection (emphasis in original). The same would hold true for the
    seizure of a cellphone or BlackBerry device.

[136]

Beyond the privacy
    implications triggered by the seizure of the devices, the appellants privacy
    interests in the data on their devices were subjugated to law enforcement
    interests upon the issuance and execution of the warrant to search the data on
    these phones: see
Vu
, at paras. 3, 49; and
Reeves
, at para.
    30.

[137]

The appellants do not
    contend that it was improper for the police to image the data on their devices.
    Once this was done, there was no restriction, on the face of the warrant or at
    law, as to when or how often the police were permitted to examine or inspect
    this lawfully seized and copied data.

[138]

It might be said that
    what occurred in this case was akin to a fraud investigation in which the
    police seize documents and make copies. There is nothing wrong with the police
    looking at these documents over and over again, attempting to discern patterns,
    schemes, or whatever might be relevant to the investigation. Similarly, I see
    nothing objectionable in having properly seized documents analyzed by forensic
    accountants, or even obtaining a second (or third, etc.) opinion by different
    forensic accountants.

[139]

Similarly, with
    respect to blood-stained articles of clothing seized pursuant to a warrant, it
    would not be improper for the police to re-submit these items for further DNA
    testing to benefit from evolving scientific advances or improved forensic
    techniques.

[140]

Leaving analogies
    aside and returning to the facts of this case, there was nothing in the search
    warrant that restricted the police to conducting forensic analysis in any
    particular manner, or a finite number of times. These types of restrictions or
    directions, known as search protocols, were addressed by the Supreme Court in
Vu
.
    At para. 25, Cromwell J. said: While such conditions may be appropriate in
    some cases, they are not, as a general rule, constitutionally required.
    Cromwell J. made the following observations about search protocols, at para. 54:

I am not convinced that s. 8 of the
Charter
requires,
    in addition, that the manner of searching a computer must always be spelled out
    in advance. That would be a considerable extension of the prior authorization
    requirement and one that in my view will not, in every case, be necessary to
    properly strike the balance between privacy and effective law enforcement.

[141]

In this case, the
    right balance was struck. Conducting a second interpretation of the data files did
    not
further
defeat the appellants privacy interests. This was complete
    at the time the search warrant was issued and the police retrieved the phones
    from the police locker.  It may not always be the case that a re-analysis or
    re-inspection of lawfully obtained evidence will not constitute a new search.
    The inquiry must consider the specific circumstances in which the analysis is
    conducted. In this case, the second analysis was conducted in the course of an
    ongoing police investigation, the substance of which had not changed between
    the first analysis and the second analysis. The data was extracted from the
    devices at a fixed point in time, and remained frozen in time at this fixed
    point. That is, the second analysis was conducted on the very same BIN files
    that the police had already examined. Finally, there were no search protocols
    imposed by the warrant. In such circumstances, even if the appellants had a
    subjective expectation of privacy in relation to the BBM chats, it was
    objectively reasonable for the police to conduct the second analysis.

[142]

Similarly, the timing
    of the second inspection had no impact on the appellants privacy interests. Indeed,
    I consider the timing issue to be a distraction. Had the police commenced
    running the data but were interrupted, they would not have needed to obtain a
    new warrant to commence the analysis again. If the updated version of
    Cellebrite became available a month after the first analysis, instead of a year
    later, there could be no complaint. During the oral hearing, counsel for Plummer
    acknowledged as much. I fail to see how
Charter

protection is
    engaged because of the extended length of time. It had no impact on privacy
    rights in the context of this case. Consequently, this variable is not
    constructive in analyzing the lawfulness of using the Cellebrite software on a
    second occasion.

[143]

The trial judge did not
    err in finding that the appellants rights under s. 8 of the
Charter
were not infringed by the second analysis of the data extracted from their
    devices.

[144]

In the circumstances,
    it is not necessary to engage in a detailed analysis of s. 24(2) of the
Charter
.
    Appellants counsel did not do so on this appeal. However, I would observe
    that, the application of all three factors under
R. v. Grant
, 2009 SCC
    32, [2009] 2 S.C.R. 353 strongly favour admission of the evidence.

[145]

If the second analysis
    did amount to an infringement of s. 8, it was not a serious one. There was no
    hint of bad faith in the second analysis of the raw data. This is demonstrated
    by the fact that, at a time when the law had not yet been clarified by the
    Supreme Court in
Vu
, the police nevertheless obtained a warrant to
    search the appellants devices, even though the devices had already been
    lawfully seized.

[146]

As already discussed,
    the impact on the appellants privacy rights was negligible in the
    circumstances. The devices were seized under the common law power of search
    incident to arrest. They were re-seized and analyzed under the authority of a
    search warrant. Had a further warrant been required to conduct the second
    analysis, it would have been issued in a heartbeat. In these circumstances, the
    appellants would have been in the exact same position:
R. v. Tsekouras
,
    2017 ONCA 290, 353 C.C.C. (3d) 349, at para. 112.

[147]

Lastly, the balancing
    required at the third stage of
Grant
tilts strongly in favour of
    admission. The BBM communications provided highly reliable evidence of the plan
    to kill Mr. Kumar. They formed the cornerstone of the Crowns case on first
    degree murder.

[148]

I would dismiss this
    ground of appeal.

F.

Conclusion and disposition

[149]

As explained above,
    the appeals were dismissed at the conclusion of the oral hearing.

Released: DD APR 2 2019

Gary Trotter J.A.

I agree. Doherty J.A.

I agree. David Brown J.A.





[1]

In separate reasons, MacLaren J.A. adopted similar
    formulations at p. 8, as did Meredith J.A. in his own reasons, at p. 11.



[2]

The trial judge referred to this as the
res gestae
exception. With respect, I prefer the more modern expression  spontaneous utterance.



[3]
The appellants also argued that the reports of the data on the devices
    generated by the police were overbroad as the police failed to limit the
    reporting to correspondence and communication. The trial judge accepted this
    argument and determined that the reporting should have been limited to BBM
    chats, texts, emails, notes, and call logs. He found that the overbroad
    reporting violated s. 8 of the
Charter
and the appropriate remedy under
    s. 24(2) was an exclusion of data outside of the scope of correspondence and
    communication. See:
R. v. Nurse and Plummer
, 2014 ONSC 5989, 322 C.R.R.
    (2d) 262.


