



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boutros, 2018 ONCA 375

DATE: 20180419

DOCKET: C62190

Doherty, Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Philip Boutros

Appellant

Scott C. Hutchison and Ben Rogers, for the appellant

R.W. Hubbard, for the respondent

Heard:  March 19, 2018

On appeal from the convictions entered by Justice Steven Rogin
    of the Superior Court of Justice, dated January 25, 2016.

Doherty J.A.:


I



overview

[1]

The appellant was convicted of several offences arising out of a home
    invasion robbery in Leamington, Ontario. He appeals his convictions only.

[2]

The Crown alleged that the appellant was the getaway driver in the
    robbery. The Crown relied on the evidence of:

·

Jason Raffoul, who had pleaded guilty to the robbery and
    testified for the Crown;

·

Joseph Rezkalla, a friend of the appellants who testified about
    certain statements made by the appellant after the robbery implicating the
    appellant in the robbery; and

·

text messages between the appellant and others alleged to be
    involved in the robbery. The communications took place before and after the
    robbery.

[3]

The appellant did not testify.

[4]

On appeal, the appellant argues that the trial judge erred in admitting
    the text messages. He claims that they were obtained in a manner that infringed
    his
Charter
rights and should have been excluded under s. 24(2) of the
Charter
.

[5]

The appellant also argues that the trial judge erred in relying on small
    pieces of Mr. Rezkallas evidence that incriminated the appellant. The
    appellant contends that the trial judge provided no explanation for accepting
    those parts of his testimony in the face of the trial judges very strong
    finding that Rezkalla was a liar whose statement to the police and testimony
    could not be believed. The appellant submits that the trial judges comments
    about Rezkallas credibility caused counsel to refrain from any further
    cross-examination of Rezkalla.

[6]

I would dismiss the appeal. Although I agree that the trial judge failed
    to conduct a proper s. 24(2) analysis of the admissibility of the text
    messages, I am satisfied that on a proper analysis, the evidence was
    admissible. I am also satisfied that the trial judge was entitled to accept
    those parts of Mr. Rezkallas evidence that implicated the appellant and use
    that evidence to support the evidence of the accomplice, Jason Raffoul. He made
    no reversible error in doing so.


II



should the text messages have been excluded?

(i)

The Trial Rulings

[7]

The trial judge made two
Charter
rulings. In the first, he
    held, relying on
Telus Communications Company v. The Queen
, 2013 SCC
    16, [2013] 2 S.C.R. 3, that the police could not lawfully obtain copies of text
    messages from the service provider, using a production order issued under s.
    487.014(1) of the
Criminal Code
. The trial judge concluded that to
    obtain the texts the police were required to obtain an authorization to
    intercept private communications under Part VI of the
Criminal Code
.
    He further held, that in the absence of a proper judicial order, the seizure of
    the text messages violated the appellants s. 8 rights. The trial judge went
    on, however, to hold that the evidence should be admitted under s. 24(2).

[8]

Subsequent to the trial, the Supreme Court of Canada, in
R. v. Jones
,
    2017 SCC 60, [2017] 2 S.C.R. 696, at paras. 56-81, held that text messages
    stored by a service provider, like those in issue in this case, could be
    obtained under the authority of a production order. The appellant no longer
    argues that the police violated his rights under s. 8 of the
Charte
r
    by using a production order to obtain copies of the texts. The appellant also
    accepts, for the purposes of the appeal, that the information sworn by the
    officer (ITO) to obtain the production order contained sufficient grounds
    upon which the order could be granted.

[9]

The trial judges second
Charter
ruling came about as a result
    of the release of the decision in
R. v. Spencer
, 2014 SCC 43, [2014] 2
    S.C.R. 212, during the trial. Prior to
Spencer
, it was broadly
    accepted that police officers could obtain subscriber information (name and
    address) from service providers without judicial authorization: e.g. see
R.
    v. Hutchings
(1996), 111 C.C.C. (3d) 215, [1996] B.C.J. No. 3060, at para.
    25, (C.A.), leave to appeal to SCC refused, [1997] S.C.C.A. No. 21, 44 C.R.R.
    (2d) 188. In this case, the police had obtained subscriber information pertaining
    to a cellphone seized from the appellant without judicial authorization. The
    appellant had not challenged that conduct in his initial
Charter
application.
Spencer
held, however, that judicial authorization was
    needed
at least as far as subscriber information in respect of IP
    addresses was concerned. In light of that development, the appellant argued
    that the police had violated his rights when they obtained subscriber
    information pertaining to the cellphone without first obtaining judicial
    authorization.

[10]

In
    his second ruling (2015 ONSC 6570), the trial judge held that
Spencer
applied
    to the subscriber information sought by the police. He concluded that the
    police had breached the appellants s. 8 rights when they obtained subscriber
    information for the cellphone seized from the appellant from the service
    provider, Telus Communications Company (Telus) without judicial authorization.
    That information showed the subscriber to be a numbered company. Further police
    investigation revealed that the appellants sister owned the numbered company.

[11]

In the course of his second ruling, the trial judge also
    dealt with other
Charter
-related
    issues
. The Crown had initially sought to introduce a statement
    made by the appellant after his arrest. During the
voir dire
, it
    became evident that the police had violated the appellants s. 10(b) rights
    when they continued to
question him without
    giving him an opportunity to speak to his lawyer and when they failed to
    facilitate contact with his lawyer upon arrival at the police station. Presumably,
    in light of these breaches, the Crown abandoned any attempt to adduce the
    appellants statements.

[12]

In his second ruling,
    the trial judge found that the arresting officers had fallen woefully short of
    their obligations to the appellant under s. 10(b) of the
Charter
. He also found the arresting officers evidence less
    than forthright.

[13]

In his second ruling, the
    trial judge also found that a police officer entered
the
    appellants cell several hours after his arrest
and demanded the appellants password for the cellphone the police had
    seized from him. The officer did not advise the appellant of his right to
    counsel, or give the appellant an opportunity to consult with counsel before
    complying with the demand for the password.

[14]

The trial judge
    concluded that the failure to advise the appellant that he was entitled to
    speak with his lawyer before deciding whether to provide his password, breached
    the appellants right under s. 10(b) of the
Charter
. It would appear that the trial judge further held
    that the officer breached the appellants s. 8 rights when he used the password
    to access the phone and look at the call logs.

[15]

Despite finding
Charter
violations, first, when the appellant was arrested,
    second, when he arrived at the police station, third, when he was in the cell and
    fourth, when Telus provided subscriber information relating to the cellphone,
    the trial judge said, at para. 53:

As I have found no
Charter
breach with respect to the
    issuance of the production orders, I need not enter into a s. 24(2) analysis.

[16]

As I understand the
    trial judges ruling, he was satisfied that the production order was properly
    granted, in the sense that there were ample grounds to make the order, apart
    entirely from any constitutionally tainted evidence. As the production order
    was lawfully granted, and the execution of the production order led directly to
    the police obtaining the text messages, any prior
Charter
breaches did not engage s. 24(2) of the
Charter
.

(ii)

Was Section 24(2) of the
Charter
Engaged?

[17]

Section 24(2) governs the admissibility of evidence
    obtained in a manner that infringed or denied any rights or freedoms
    guaranteed by the
Charter
. The
    appellant submits that the trial judge unduly restricted s. 24(2) by
    considering only the constitutionality of the judicial order that led directly
    to the police obtaining the text messages. Counsel submits that the authorities
    require a much broader approach to the reach of s. 24(2). Evidence is obtained
    in a manner that infringed or denied a constitutional right if there is a
    connection between the breach and the impugned evidence. The connection may be
    temporal, contextual, causal or some combination of the three: see
R.
    v. Pino
, 2016 ONCA 389, 130 O.R. (3d)
    561, at paras. 50-56;
R. v. Wittwer
, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21.
    Counsel argues that all of the
Charter
breaches outlined above were sufficiently connected
    temporally, contextually, or causally to the obtaining of the text messages to
    trigger the exclusionary rule in s. 24(2).

[18]

The
    appellant further contends that because of the narrow view the trial judge took
    of the application of s. 24(2), he never considered the cumulative effect of
    the breaches in deciding whether the admission of the text messages would bring
    the administration of justice into disrepute: see
R. v. Chaisson
, 2006
    SCC 11, [2006] 1 S.C.R. 415.

[19]

I
    agree with the appellant that evidence obtained pursuant to a lawful production
    order, or search warrant, may still be obtained in a manner that infringed a
Charter
right.

[20]

R.
    v. Grant
, [1993] 3 S.C.R. 223 is directly on point. In
Grant
, the
    police conducted two perimeter searches of the accuseds property. They
    subsequently obtained and executed a search warrant for the property. The court
    determined that the perimeter searches were unconstitutional, but the search
    made under the authority of the warrant was valid as there were adequate
    grounds to justify the issuing of the warrant, apart from the information
    acquired during the unconstitutional perimeter searches. The court then turned
    to whether the unconstitutional perimeter searches were sufficient to trigger
    s. 24(2) of the
Charter
, even
    though the evidence had been seized pursuant to a valid search warrant. The
    court said
, at p. 254:

However, this does not eliminate the possibility that the
    entire search process was tainted by the warrantless perimeter searches which
    violated s. 8, so the possibility of excluding that evidence under s. 24(2) of
    the
Charter
must be considered.

[21]

In holding that the
    unconstitutional prior perimeter searches did result in the evidence being
    obtained in a manner which infringed the
Charter
, despite the valid warrant, the court said, at p.
    255:

In the case at bar, there
    is a sufficient temporal connection between the warrantless perimeter searches
    and the evidence ultimately offered at trial by the Crown to require a
    determination as to whether the evidence should be excluded.
The
    warrantless searches, while perhaps not causally linked to the evidence tendered,
    were nevertheless an integral component in a series of investigative tactics
    which led to the unearthing of the evidence in question.
It is unrealistic to view the perimeter searches as
    severable from the total investigatory process which culminated in discovery of
    the impugned evidence. [Emphasis added.]

[22]

In keeping with
Grant
, and other authorities, e.g.
R. v.
    Plant
, [1993] 3 S.C.R. 281, at p. 296;
R. v. Cȏ
té
,
    2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 78-79, the trial judge should have
    determined whether any of the
Charter
breaches that occurred before the police obtained
    the text messages under the authority of the lawful production order were integral
    to the investigative process that ultimately led to the acquisition of the text
    messages by the police.

[23]

The police knew that the
    robbery involved more than one perpetrator. They appreciated that access to the
    contents of the appellants cellphone could connect them to others involved in
    the robbery. The efforts to access the contents of the cellphone began when the
    police lawfully seized the cellphone when they arrested the appellant and
    continued when the police officer demanded that the appellant provide his
    password. Those efforts culminated in the obtaining of the text messages
    pursuant to the production order. In my view, any constitutional violations
    that occurred in the course of the police efforts to unearth the text
    messages trigger the application of s. 24(2) to the admissibility of those text
    messages.

[24]

Applying the language
    from
Grant
, I see
    nothing to connect the s. 10(b) violations that occurred when the appellant was
    arrested and when he arrived at the police station to any investigative steps
    that eventually led to the production of the text messages.

[25]

The appellants arrest
    occurred three or four days before the police applied for the production order
    and obtained the text messages. The officers involved in the s. 10(b)
    violations at the time of the appellants arrest and arrival at the police station
    had nothing to do with the steps taken to obtain the production order. There is
    no evidence that the officer who applied for the production order was even
    aware of anything the appellant may have said at the time of his arrest. The
    ITO contains no hint that the officer relied on anything the appellant may have
    said, or any evidence obtained as a result of something he said, in applying
    for the production order. The obtaining of the text messages under the
    authority of the production order was unrelated to those s. 10(b) breaches.
    Those breaches could not precipitate an inquiry under s. 24(2) into the
    admissibility of the text messages. It is not enough that the s. 10(b) breaches
    occurred during the same investigation that yielded the text messages.

[26]

In holding that the
    initial s. 10(b) breaches did not trigger s. 24(2), I do not suggest that those
    breaches are irrelevant to the admissibility of evidence found to be have been
    obtained in a manner that violated a
Charter
right. If s. 24(2) is engaged, the conduct of the
    police throughout their investigation and even throughout the prosecution,
    including the initial s. 10(b) violations, are germane to the admissibility
    inquiry required under s. 24(2): see
R. v. Harrison
, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 26.

[27]

Although I would hold
    that the s. 10(b) breaches that occurred at the time of arrest and when the
    appellant arrived at the police station did not engage s. 24(2), I come to the
    opposite conclusion in respect of the police demand that the appellant provide
    his password for the cellphone. The police were obligated to give the appellant
    an opportunity to speak to counsel before deciding whether to give the police
    his password. The failure to give the appellant that opportunity resulted in a
    breach of s. 10(b):
R. v. Sinclair
, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 50. That
    breach was integral to police efforts to obtain the contents of the text
    messages, which were eventually produced under the production order. This s.
    10(b) breach is sufficiently connected to the text messages to trigger s.
    24(2).

[28]

I move next to the
    breach of s. 8 flowing from the obtaining of the subscriber information from
    Telus without judicial authorization. The trial judge held that
Spencer
applied to the subscriber information in issue in
    this case. It is, however, an open question whether
Spence
r should apply to the obtaining of subscriber
    information in respect of cellphones. Some trial decisions in Ontario have held
    that
Spencer
does not
    necessarily apply to cellphone subscriber information: see
R.
    v. Lattif
, 2015 ONSC 1580, at paras.
    6-10;
R. v. Khan
, 2014
    ONSC 5664, at paras. 24-25, 27;
R. v. Morrison
, 2014 ONCJ 774, at paras. 23-26.

[29]

This court did not hear detailed argument on the
    applicability of
Spencer
.
    Counsel for the appellant argues that
Spencers
applicability to cellphone subscriber information
    ultimately depends on the kind of information that can be sought and obtained
    from the service provider using that subscriber information.
I
    think it would be unwise for this court to pronounce on the applicability of
Spencer
to subscriber information pertaining to cellphones without a more detailed
    evidentiary record and fuller argument on the point.

[30]

As
    I am satisfied that the evidence is admissible, even if the obtaining of the
    subscriber information constituted a breach of s. 8, I need not determine the applicability
    of
Spencer
to decide the outcome
    of this case. I will assume, for the purposes of these reasons, that the police
    breached the appellants s. 8 rights when they obtained the
cellphone
    subscriber information from Telus. That breach was also integral to the
    investigation that ultimately led to the text messages. The breach made s.
    24(2) applicable to the admissibility of the text messages.

(iii)

Should the Text Messages Have Been Excluded Under Section 24(2)?

[31]

As
    the trial judge did not engage in a s. 24(2) analysis, it is necessary for this
    court to perform that task:
R. v. Harris
, 2007 ONCA 574, 87 O.R. (3d)
    214, at para. 50. In doing so, the court accepts the trial judges credibility
    assessments, and his factual findings, except to the extent that those findings
    are unreasonable or tainted by clear and palpable error.

[32]

The
    analytical approach to s. 24(2) is set down in
R. v. Grant
, 2009 SCC
    32, [2009] 2 S.C.R. 353 (
Grant

(
2009
)
)
. The
    court must consider the seriousness of the
Charter
-infringing state
    conduct, the impact of the breaches on the
Charter
-protected interests
    of the appellant, and societys interest in the adjudication of the case on its
    merits:
Grant

(2009)
,
at para. 71. The court must also consider the cumulative effect of the
    breaches.

[33]

In
    considering the seriousness of the police misconduct as it relates to the failure
    to advise the appellant of his right to speak to counsel before providing his
    cellphone password, I accept that the obligation of the police to provide that
    opportunity to the appellant is well-established by authorities like
Sinclair
. The police should have understood this obligation
.
    I also consider this s. 10(b) breach in the context of the earlier serious
    breaches of s. 10(b). At the time of the appellants arrest and in the hours
    following his arrest, the officers exhibited little, if any, concern or respect
    for the appellants s. 10(b) rights. The police breach of the appellants s.
    10(b) rights when they demanded that he provide his password falls toward the more
    serious end of the spectrum of police misconduct and tends to favour exclusion
    of the text messages.

[34]

The
    characterization of the police misconduct as it relates to their accessing of
    the contents of the cellphone is more difficult. As observed in
R. v.

Fearon
,
    2014 SCC 73, [2014] 3 S.C.R. 621, at paras. 1-2, the power of the police to examine
    the contents of a cellphone in the possession of a person at the time of a
    lawful arrest was the subject of widely-differing judicial opinions prior to
Fearon
.
    This arrest occurred well before
Fearon
. It is also unclear on this
    record exactly what the officer looked at on the cellphone. It would appear
    that he examined call logs for some unspecified time period.

[35]

In
    light of the legal uncertainty existing at the time, I do not characterize the
    police accessing of the contents of the cellphone to examine the call logs as
    serious misconduct. Nor can it be characterized as significantly intrusive.

[36]

Moving
    to the 
Spencer
 breach, I am satisfied that the police acted
    reasonably in requesting the information from Telus without first obtaining a
    judicial authorization. On the law as it stood, the police were entitled to
    proceed on the basis that the information could be made available directly from
    Telus:
Spencer
, at para. 77. Indeed, even now, I think there is a
    legitimate question as to whether judicial authorization is required. The
    officer who requested the information from Telus acted in good faith and on a
    reasonable view of the law as it stood. The police conduct in respect of the s.
    8 breaches does not support exclusion.

[37]

Turning
    from the police conduct to the impact of the breaches on the appellants
    constitutional rights, the appellant argues that the breaches led to the
    wholesale capture of intimate details of his life. Presumably, the appellant
    is referring to the contents of the text messages. He argues that the very
    significant impact on his privacy rights strongly favours the exclusion of the
    evidence.

[38]

I
    disagree that the breaches which triggered s. 24(2) led to the acquisition of
    the text messages. On the trial judges unchallenged finding, the text messages
    were produced pursuant to a production order that was properly issued on the
    information contained in the ITO. That information supported issuing the
    production order, even after the constitutionally-tainted information was
    removed. While causation is not a prerequisite to a determination that evidence
    was obtained by a violation of a
Charter
right for the purposes of
s. 24(2), in cases involving s.
    8 infringements, the interference with an accuseds privacy rights will
    necessarily diminish if the immediate cause of the state intrusion into that
    privacy is a lawfully issued warrant or production order:
Plant
, at pp.
    300-301.

[39]

The police would have lawfully acquired the text messages
    had none of the breaches occurred. The author of the ITO had no connection to
    the breaches, and was unaware that the appellant had been required to produce
    his password. The police had lawfully seized the cellphone from the appellant
    and they knew the name of the service provider, which appeared on the phone.
    The police had a phone number for the appellant. They could have readily
    connected that phone number to the cellphone without any information from the
    appellant. There was also enough evidence, apart from the password or anything
    the officer might have seen on the appellants cellphone, to justify the
    issuance of the production order. The appellants privacy rights were
    significantly, albeit lawfully, affected by the production order. The negative impact
    on the appellants privacy rights was not meaningfully increased by virtue of
    the
Charter
breaches:
Fearon
, at para. 96.

[40]

The assessment of the impact of the
Charter
breaches on the appellants
Charter
-protected
    interests is mixed. The breaches had little, if any, effect on the appellants
    privacy interests. They did, however, have a negative impact on the right
    protected by s. 10(b). By failing to give the appellant a proper s. 10(b)
    caution, the police effectively denied him the right to make an informed
    decision as to whether to provide his password and effectively compelled him to
    cooperate with them. The denial of this right is important, particularly in the
    context of a fast-flowing investigation. The negative impact in this case is,
    however, somewhat mitigated by the very limited nature of the demand made by
    the police officer. He requested only the password, something which in the end
    had no real effect on the course of the investigation.

[41]

I would describe the net impact of the
Charter
breaches on the appellants
Charter
-protected rights as relatively minor. This
    consideration weighs, although not heavily, in favour of excluding the
    evidence.

[42]


The third factor identified in
Grant
    (2009)
, societys interest in an adjudication of the charges on their merits,
    always favours admission to some extent. The force of that factor will vary
    depending on the circumstances. If the impugned evidence is very reliable and
    central to the Crowns case, societys interest in an adjudication on the
    merits will often strongly favour admissibility:
Grant

(2009)
, at paras. 82, 83;
R.
    v. McGuffie
, 2015 ONCA 365, 131 O.R. (3d) 643, at para. 62.

[43]

The
    text messages are clearly reliable evidence. They are also important to the
    Crowns case for two reasons. First, their content is potentially significant
    and incriminatory. Second, the text messages provide direct and reliable
    evidence of conversations between the appellant and the accomplice. Without the
    text messages, the trier of fact would be left to assess the case solely on the
    accomplices recollection of the relevant communications. There were serious
    concerns about the accomplices credibility. The admission of the text
    messages, an undeniably accurate account of the communications, was much more
    likely to serve the proper administration of justice, than would the
    accomplices evidence standing on its own:
R. v. Fliss
, [2002] 1
    S.C.R. 535, at para. 86. In my view, societys interest in an adjudication of
    the charges on the merits pushes strongly in favour of admitting the evidence.

[44]

In
    summary, I would characterize the police misconduct in failing to give the
    appellant an opportunity to speak to his lawyer before providing his password
    as a serious breach of s. 10(b) aggravated by the police disregard for the
    appellants s. 10(b) rights earlier in the process. I would characterize the
    police misconduct in examining some of the contents of the phone and obtaining
    the subscriber information as not serious and understandable, given the state
    of the law as it existed at the time. The police breaches of s. 8 cannot be
    described as wilful or even negligent.

[45]

In my view, the breach of the appellants s. 10(b) right
    when the police required him to provide his password had a meaningful negative
    impact on the appellants right to choose whether to cooperate with the police
    and his right to the assistance of counsel. The breaches of s. 8 had virtually no
    meaningful effect on the appellants privacy rights in the circumstances of
    this case.

[46]

Bearing in mind that
    societys interest in a trial on the merits strongly favours admission in this
    case, I am satisfied that the sum effect of the seriousness of the police
Charter
-infringing conduct, and the negative impact of the
    breaches on the appellants
Charter
-protected interests do not sufficiently favour exclusion
    of the evidence to overcome societys interest in a trial on the merits:
McGuffie
, at paras. 62-63. In my view, having considered the
    three inquiries dictated by
Grant (2009)
, and bearing in mind that the effect of those
    inquiries must be balanced and considered as a whole, I am not satisfied that
    the appellant has demonstrated that the admission of the text messages would
    bring the administration of justice into disrepute:
Grant

(2009)
, paras. 67-71.


III



the trial judges treatment of the evidence of Mr. Rezkalla

[47]

Mr.
    Rezkalla is a good friend of the appellants. The police knew from reviewing
    the text messages produced by Telus that the appellant and Mr. Rezkalla had
    been in communication after the robbery. The police interviewed Mr. Rezkalla.
    In his statement, he indicated that the appellant admitted he was involved in
    the robbery as the driver.

[48]

Mr.
    Rezkalla was called for the Crown at trial. He recanted his statement, denying
    that he could remember what the appellant may have told him. The trial judge
    allowed the Crown to cross-examine Mr. Rezkalla. Mr. Rezkalla remained firm in
    his recantation, although in cross-examination by the Crown he did acknowledge
    that the appellant made certain comments which implicated the appellant in the
    robbery at least indirectly. The details of those comments are unimportant for
    the purposes of these reasons.

[49]

After
    the Crown had cross-examined Mr. Rezkalla, the Crown moved to have his
    statement to the police admitted at trial for the truth of its contents under
    the principled exception to the hearsay rule. The trial judge declined to admit
    the statement, holding that it did not satisfy the threshold reliability
    requirement for admissibility.

[50]

In
    the course of the ruling, the trial judge observed that Mr. Rezkalla was lying
    throughout the interview with the police and saying anything he felt would
    keep him from being charged or further his motive for assisting Mr. Boutros.
    In his reasons for finding Mr. Rezkallas statement unreliable, the trial judge
    expressly indicated that Mr. Rezkallas desire to help the appellant was a powerful
    motive for Rezkalla to lie.

[51]

In
    his reasons for judgment, the trial judge repeated his view that Mr. Rezkalla
    was a liar who had lied to the police in his statement and who had lied at
    trial in his evidence. According to the trial judge:

He [Rezkalla] lied to the police and lied at the trial to
    exculpate himself first, and once he was not charged, attempted to exculpate Mr.
    Boutros.

[52]

The
    trial judge went on in his reasons to indicate that Mr. Rezkalla did give
    evidence, when pressed by the Crown on cross-examination, of statements made to
    him by the appellant. Some of these statements connected the appellant to the
    proceeds of the robbery and one amounted to an admission of involvement in the
    robbery. The trial judge accepted these parts of Mr. Rezkallas evidence as
    truthful. He found the statements to be confirmatory of the evidence given by the
    accomplice, Mr. Raffoul.

[53]

The
    appellant submits that the trial judge offers no explanation for choosing to
    accept these few answers given by Mr. Rezkalla in what was otherwise, according
    to the trial judge, a litany of lies told by Mr. Rezkalla. I think it is crystal
    clear why the trial judge believed these very few parts of Mr. Rezkallas evidence.
    Given that Mr. Rezkalla was doing all he could in his evidence to exculpate the
    appellant, anything he said that incriminated the appellant could reasonably be
    viewed by the trier as truthful.

[54]

Nor,
    in my view, could the trial judges comments when he refused to admit Mr.
    Rezkallas statement for the truth of its contents be seen as misleading
    counsel for the appellant into the belief that nothing said by Mr. Rezkalla
    would carry any weight with the trial judge. The trial judge made it clear in
    refusing to admit the statement that Mr. Rezkallas dishonesty was motivated,
    in part, by a strong desire to protect the appellant. His reasons lay bare the
    very line of reasoning ultimately used by the trial judge in assessing what
    parts, if any, of Mr. Rezkallas evidence he could accept. The approach taken
    to Mr. Rezkallas evidence by the trial judge in his reasons was presaged by the
    trial judges reasons for refusing to admit Mr. Rezkallas statement for the
    truth of its contents.

[55]

The
    trial judges acceptance of parts of Mr. Rezkallas evidence was neither
    illogical, nor inconsistent with his finding that Mr. Rezkalla had lied
    throughout his evidence. The distinction drawn by the trial judge flowed
    logically from the motive he identified for Mr. Rezkallas dishonest statements
    to the police and his dishonest testimony at trial. I would not interfere with the
    trial judges assessment of Mr. Rezkallas evidence.


IV



conclusion

[56]

I
    would dismiss the appeal and affirm the convictions.

Released: DD  APR 19 2018

Doherty J.A.

I agree Paul Rouleau J.A.

I agree B.W. Miller J.A.


