COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Badgerow, 2014 ONCA 272 DATE: 20140408 DOCKET: C56067 Hoy A.C.J.O., Gillese and Strathy JJ.A. BETWEEN Her Majesty the Queen Appellant and Robert Badgerow Respondent Randy Schwartz, for the appellant Frank Addario and Matthew Gourlay, for the respondent Heard: December 18, 2013 On appeal from the stay of proceedings by Justice Gerald Taylor of the Superior Court of Justice, dated September 6, 2012, with reasons reported at 2012 ONSC 4829. Strathy J.A.:

[1] The Crown wants to try the respondent, Robert Badgerow, a fourth time for first degree murder of Diane Werendowicz in 1981. His first trial, 20 years after

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the killing, resulted in a conviction. It was overturned by this court and a new trial was ordered. His second trial, in 2010, ended in a mistrial when the jury was unable to reach a verdict. His third trial, in 2011, ended the same way. [2] When the Crown indicated it intended to try the respondent a fourth time, he applied for a stay of the proceedings. The application judge, who had presided at both the second and the third trials, found a fourth trial would be a breach of his right to life, liberty and security of the person under s. 7 of the Charter and an abuse of process. He ordered the stay under s. 24(1) of the Charter. The Crown appeals that order, pursuant to s. 676(1)(c) of the Criminal Code. [3] For the reasons that follow, I would set aside the stay and order a new trial. The respondents DNA was found in the victim. He testified he had consensual intercourse with her on the night of the killing. The jury did not, however, hear relevant and highly probative evidence that was excluded at all three trials evidence from which they could have concluded that a 911 call, giving details of the crime that only the killer was likely to have known, had been traced to a payphone at the respondents workplace. The exclusion of this evidence means there has never been a trial of the respondent at which all the properly admissible evidence has been placed before the jury for its consideration. The public interest in such a trial outweighs any unfairness in trying the respondent a fourth time.

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I.

BACKGROUND

A. The Facts The Murder of Diane Werendowicz [4] Ms. Werendowicz was murdered in the early morning of Saturday, June 20, 1981. After working all day Friday as a nursing assistant at McMaster University Medical Centre, she and a female friend went to a bar in Stoney Creek, where they had a few beers. She left the bar alone around midnight to walk to her home, 10 to 15 minutes away. [5] On her way, she was dragged into a ravine, sexually assaulted, strangled, dumped in a creek and drowned. Her body was found later that day. A tire covered her head and shoulders. She was wearing a blouse, jeans, a brassiere and socks. The zipper of her jeans was partly undone and her blouse was unbuttoned. Her shoes, underpants and wallet were found nearby, on the bank of the creek. When the tire was lifted and her body removed, it was discovered that she had been strangled, with the strap of her purse wound around her neck. Subsequent tests showed the presence of semen on her jeans and in her vagina and anus. The 911 Call [6] Two days later, a man, who refused to identify himself, called 911 in Hamilton, claiming to have information about the killing. He reported the victim had been

Page: 4 raped before she was killed and she was strangled with her purse. He also reported she was found face down in the crick [sic] with a tire on top of her shoulders and head. He accurately described the victim and her clothing. Some of the information he disclosed had not been publicly released by the police. [7] The respondent conceded, in this court and before the application judge, that it would be open to a jury to find the 911 caller was the killer. [8] The police asked Bell Canada to trace the call. Shortly after receiving a response, police were dispatched to a payphone booth at Gate #6 of the Dofasco steel plant in Hamilton. The booth was empty. A man, who did not resemble the respondent, had been seen using the phone around the time of the call, but he was not found in a search of the area. [9] Although the police did not know it at the time, the respondent was working about 100 feet from the phone booth when the 911 call was made. Nor could they have known that the respondents DNA matched the samples taken from the victims body and jeans. [10] Evidence of Bell Canadas trace of the 911 call, and the dispatch of police

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

Page: 5 The Ravine Task Force and the Respondents DNA [11] [12] No charges were laid in connection with the killing for many years. In May 1997, the Hamilton Police established the Ravine Task Force to

investigate a number of sexual assaults in the area of this crime, between 1980 and 1997. [13] The respondent was identified as a suspect. He had been arrested in 1981

in connection with a brutal assault of a young woman in the same area, seven weeks after the Werendowicz killing. She had gone to school with the respondent and identified him as her assailant. He was released, however, after police believed they had confirmed his alibi. [14] During its investigation, the task force surreptitiously obtained a sample of

the respondents DNA. It matched the profile from semen obtained from Ms. Werendowiczs jeans and from post-mortem vaginal and anal swabs. The respondents DNA was not found on the victims underpants. [15] On December 1, 1998, the respondent was arrested for Ms.

Werendowiczs murder. He was also charged for the attempted murder and indecent assault of the other woman.1

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

Page: 6 The Respondents Statement to the Police [16] Shortly after his arrest, before he knew the police had a DNA match, the

respondent gave a videotaped statement denying any contact with the victim on the night she was killed. When the police disclosed the DNA evidence, he said he was unable to explain it, and they should speak to his lawyer. The Respondents Explanation for his DNA [17] At his trials, the respondent claimed he met Ms. Werendowicz, whom he

did not know, in the parking lot of the bar where she had been drinking with friends. He said they smoked marijuana and had consensual intercourse in the back of his truck. She left alone, to walk home. [18] According to the respondents theory, Ms. Werendowicz was attacked and

killed by someone else on her way home. He explained the absence of his DNA on her underpants by the theory that she had not put them on after their sexual encounter and had carried them with her, dropping them when she was attacked in the ravine. He suggested no other persons DNA was found because the assailant had groped the victim but did not have forcible intercourse with her. B. The Trials The First Trial [19] The first trial took place before Lofchik J. and a jury in Hamilton beginning

in January, 2001. The jury heard evidence of the respondents statement to the

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police. He was cross-examined on the inconsistencies between this statement and his evidence of a consensual sexual encounter with the victim. [20] The defence led evidence of a third-party suspect. This man, who lived in

the same apartment building as Ms. Werendowicz, had a record for numerous sexual assaults in the mid-1980s. He was called as a defence witness and denied sexually assaulting or murdering Ms. Werendowicz. There was no forensic evidence linking him to the crime and his DNA excluded him as a source of the semen samples. [21] In April 2001, after eight days of deliberation, the jury found the respondent

guilty of first degree murder. Lofchik J. imposed the mandatory sentence of life imprisonment without parole eligibility for 25 years. [22] The respondent appealed his conviction. It took a number of years to

perfect his appeal, and it was not until September 2008 that this court ordered a new trial, on the ground that his statement to the police should have been excluded due to a breach of s. 10(b) of the Charter: R. v. Badgerow, 2008 ONCA 605, 237 C.C.C. (3d) 107, leave to appeal to S.C.C. refused, [2008] S.C.C.A. No. 483. The Second Trial [23] The second trial took place in Hamilton, commencing in February, 2010,

before the application judge and a jury. The trial lasted almost four months, with

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51 Crown witnesses and 19 defence witnesses, including the respondent. On June 14, 2010, after seven days of deliberation, the jury was unable to reach a unanimous verdict and was discharged. [24] There was no reference to the respondents police statement at either the

second or third trials. Nor was there evidence of the dispatch of police to Dofasco after the 911 call. The only evidence admitted concerning the 911 call trace was that the call originated from one of three broad sectors of Hamilton the east end which included the Dofasco plant. The Third Trial [25] The third trial was moved to Kitchener due to extensive pre-trial publicity in

the Hamilton area. The application judge again presided over the trial. It began on September 12, 2011 and ended on December 9, 2011, when the jury was discharged after five days of deliberation, again unable to reach a verdict. [26] An audio recording of the 911 call was introduced in evidence at the trial

and ten people who knew the respondent testified they recognized his voice. Ten defence witnesses testified it was not the respondents voice. Two other witnesses testified they recognized the voice as that of the alternative suspect. Both the respondent and the alternative suspect denied they had made the call. [27] I will summarize the 911-trace evidence and the judges reasons for its

exclusion.

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C. The 911 Call and the Telephone Trace [28] A 911 system had been implemented in Hamilton in 1979, two years

before the killing. All 911 calls were routed though the Hamilton Police Communication Centre. A single room housed call-takers (who received incoming calls), dispatchers, and a supervising sergeant. Incoming 911 calls were recorded. As well, most communications into and from the Communication Centre were recorded, but calls on the sergeants telephone extension were not. An audio disc of the communications was introduced in evidence on the voir dires concerning the admissibility of the 911-trace evidence. [29] One of the features of the 911 system was that the call-taker could lock

the line so it would remain connected to the originating phone even after the caller hung up. This allowed emergency personnel to ring back a 911 caller, if for some reason the call disconnected. By keeping the line open, it was also possible to trace the call. The lock feature and the ability to trace calls were obviously important to emergency responders when, for example, callers became unable to continue their calls, or where third parties interrupted or ended them before the callers had an opportunity to identify their addresses or locations. [30] When a 911 call was received, the call-takers console automatically

displayed the trunk information for the call. In the Hamilton area in 1981, there were 65 911-trunk lines, and the trunk information identified the geographic

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sector in Hamilton from which the call originated and permitted the call to be traced. The same information was provided on the sergeants console. When a trace was required, the call-taker would give the trunk information to the sergeant or request a trace himself. The sergeant or call-taker would telephone the Bell Canada repair office and provide the trunk information to request a trace. [31] Gary Davis, a Hamilton police constable, was the call-taker who received

the 911 call at 12:18 p.m. on June 22, 1981. The dialogue was as follows: Davis: Caller: Davis: Emergency Bureau. Is this the police? Yes.

Caller: Uh, I got information on how that girl was killed on Barton and Lake. Davis: Caller: Davis: Whats your name? Uh, thats not important. Okay, whats the information?

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

[Caller hangs up, then picks up again.] Caller: And she was strangled with her purse.

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[Caller hangs up; Davis rings back.] Caller: Hello? Davis: Yeah, its the police again. Can you give us any more? Caller: No, I dont want to get involved. Davis: Well, why did you bother calling then? [Caller hangs up.] [Emphasis added.] [32] Constable Davis locked the line on which the 911 call was received,

keeping it open even after the caller hung up twice. Keeping the line open permitted Bell Canada to trace the call. [33] As indicated in the transcript of the call, on the first occasion, the caller

himself picked up the phone and briefly continued their conversation. The second time Constable Davis used the ring back feature, the caller picked up the receiver and they had another brief exchange. [34] Constable Davis immediately realized the significance of the call and

contacted the detectives in charge of the Werendowicz homicide investigation. He confirmed he had the 911 line on hold and asked the detectives to come to the radio room. These communications were recorded. [35] One of the detectives testified that on becoming aware of the call, he

immediately went to the radio room and requested a trace. Although he did not specifically remember the call, he said that, based on his experience, he would

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have asked that the line be locked and the call traced, following which he would have sent police officers to the location of the call to seal it off. [36] In accordance with the standard operating procedure, Constable Davis

also gave his sergeant, Sergeant Jachymek, the particulars of the trunk line on which the call had been received. The sergeant would then be able to give Bell Canada the information necessary to trace it. [37] By the time of the trials, Sergeant Jachymek had no recollection of the

specific 911 call. However, on the recording of the activity in the Communication Centre after the 911 call, there is a page for Sergeant Jachymek, followed by Constable Davis providing someone with details of the trunk line on which the 911 call had been received. [38] At 12:45 p.m., approximately 10 minutes after Constable Davis relayed the

trunk information, the Communication Centre recorded an incoming call from a person identifying himself as the telephone tester and requesting the sergeants extension. The communication between the telephone tester and the person at the sergeants extension was not recorded. [39] Three minutes later, at 12:48 p.m., a police cadet in the Communication

Centre called Dofasco security to ask whether there was a payphone booth at Gate #6. He testified he believed his sergeant (Jachymek) instructed him to make the call. After receiving an affirmative reply, he instructed Dofasco that no

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one be allowed to enter the booth until police arrived. This conversation was recorded. [40] At 12:49 p.m., one of the homicide detectives assigned to the

Werendowicz investigation contacted the identification services department of the Hamilton police, requesting the dispatch of an identification officer to Dofasco Gate #6 to take fingerprints from the payphone near the gate. This call was recorded. [41] At 12:50 p.m. the police dispatcher at the Communications Centre asked a

patrol car to go to Gate #6 at Dofasco, on Ottawa Street North, and to stand by the phone booth and not allow anyone to enter it. This call was also recorded. [42] There was evidence that a patrol car immediately attended at Gate #6,

arriving at 12:53 p.m. The report of its arrival was recorded. The officers found no one in the phone booth. They removed the telephone handset. It was later tested for fingerprints, and the respondents prints were not found on the receiver. Nor were his prints found elsewhere in the phone booth. [43] Phillip Johnston, a Bell Canada employee, was qualified on the voir dire at

the second trial as an expert in the operation of the 911 system, including the method of tracing the origin of 911 calls. He explained that to initiate a trace, police called the Bell Canada repair office and provided information about the trunk line on which the 911 call had been received. Depending on the type of

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switching equipment on the telephone line on which the 911 call was placed, the person at Bell Canada might have to enlist the assistance of one or more other Bell Canada employees in order to trace its location. When the trace was completed, a Bell Canada call-tester would inform the police of the location of the caller. In his opinion, the fact that the call-tester called the Communication Centre meant the trace had been completed successfully and that Bell Canada had also verified its accuracy. His testimony supported the finding that Bell Canadas switching systems were incapable of generating an inaccurate or uncertain call trace. [44] Johnston testified there were two different switching systems in place in

1981. One permitted the originating telephone number to be located by computer. The other required a manual trace by a Bell Canada technician. No witness was able to state which system applied to the payphone at Dofasco Gate #6. Johnston testified that, regardless of which system it was, once the originating telephone had been identified, the accuracy of the trace would be confirmed by shorting the line in question which would generate a unique sound confirming that the line was still connected to the police Communication Centre. [45] Once the telephone number was identified, the street address of the

telephone could be ascertained from Bell Canadas records.

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[46]

Johnston testified that the 911 tracing system in June 1981 was 99.9%

accurate. This did not mean that 0.1% of traces were inaccurate; rather, it meant there was only a 0.1% chance the system would fail to trace the call. Johnston also testified that records were kept of all traces requested by the police and these records were retained for some period of time. [47] Sergeant Jachymek testified that when a trace of a telephone number was

requested, the police generated a report that contained all of the information about the trace including the person or persons spoken to at Bell Canada. [48] In his ruling excluding the 911-trace evidence at the second trial, the

application judge noted that neither the records referred to by Johnston nor the report referred to by Sergeant Jachymek were produced on the voir dire: 2010 ONSC 946, [2010] O.J. No. 1028, at para. 13. He concluded that due to the passage of time, these documents could not be located or they had been lost or destroyed. [49] The Crown asserts that, although there is no direct evidence of the content

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

Page: 16 a man called 911 in Hamilton and reported details of the crime known only to the killer and the police; Constable Davis, the call-taker at the Hamilton Police Communication Centre, understood the importance of the 911 call; Constable Davis took the proper steps to request a trace, including locking the line on which the 911 call had been placed, in order to keep the line open so as to permit a trace, and providing the trunk information to Sergeant Jachymek; Sergeant Jachymek called Bell Canada and requested a trace of the 911 call; minutes later, Bell Canada called the Communication Centre; Bell Canadas report of the call trace would not have been inaccurate or uncertain; moments after Bell Canada called the Communication Centre, police called Dofasco about the payphone at Gate #6, and in doing so described the payphone in a manner consistent with the way Bell Canada would have relayed the location to them; moments after that, the police were dispatched to Dofasco Gate #6 to investigate and secure the payphone; and the police cut the handset from the telephone and took it for fingerprinting. [50] The Crown also proposed to adduce employment records showing the

respondent was employed by Dofasco and on the day of the 911 call, June 22, 1981, was working a 7 a.m. to 3 p.m. shift in the coiler section at the No. 1 Hot Mill Building, located on Ottawa Street North. The payphone booth was within 100 feet of that location and could have been accessed in 60 to 90 seconds. At the time the call was placed, 12:18 p.m., the respondent would have been on his

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lunch break. There was also evidence that security personnel at the gate would not necessarily have observed someone using the payphone. [51] The Crown submits that, taken together, the 911-trace evidence supports

the conclusion that Bell Canada traced the 911 call to Dofasco Gate #6. The inferences flowing from this evidence should have been left with the jury, but the application judge failed to consider them. Instead he applied a hearsay analysis to the admissibility of this evidence and wrongly concluded that it was inadmissible. Alternatively, the Crown submits that on a proper hearsay analysis, the evidence should have been admitted. D. Exclusion of the 911-Trace Evidence [52] The 911-trace evidence was excluded at all three of the respondents

trials, although different evidence was presented on the voir dire at each trial. I will briefly outline the reasons. First Trial [53] Lofchik J. refused to permit the Crown to adduce the 911-trace evidence:

R. v. Badgerow (2000), 154 C.C.C. (3d) 280 (Ont. S.C.). He found, at para. 5, that while the evidence met the necessity requirement in R. v. Khan, [1990] 2 S.C.R. 531, it fell far short of meeting the reliability test. He explained: There are substantial gaps in the continuity of the evidence in the sense of what was said by whom to whom at what point in time and there is no direct

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evidence as to what information was conveyed to Bell Canada in initiating the trace, what information was conveyed by the individuals within Bell Canada to each other and what information was ultimately conveyed to the police. We are asked to infer that the call was traced to the phone booth at Dofasco because that is where the cruiser was dispatched. [54] He noted there was no evidence before him of the reliability of the tracing

of 911 lines in 1981. He also found there was no non-hearsay use that could be made of the evidence (at paras. 10-12). [55] The Crown subsequently requested that Lofchik J. reconsider his ruling,

pointing to extrinsic evidence confirming the reliability of the hearsay statement. He declined to do so: R. v. Badgerow, [2000] O.J. No. 5445. He referred to R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, and R. v. Merz (1999), 46 O.R. (3d) 161 (C.A.), leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 240, for the proposition that the presence of corroborating or conflicting evidence should not be considered when deciding threshold reliability. Second Trial [56] By the time of the re-trial, which did not occur until 2010, the Supreme

Court had released its decision in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. The Crown argued that as a result of that decision, it was appropriate to consider extrinsic evidence confirming the reliability of the hearsay evidence sought to be adduced. Specifically, the Crown relied on evidence that:

Page: 19 several witnesses had identified the respondents voice on a recording of the 911 call; police officers attended at the payphone booth outside Dofasco Gate #6 within minutes of the call from the call-tester to the Communication Centre; the respondent worked at Dofasco in proximity to the payphone booth outside Gate #6; and the respondents DNA was located on the vaginal and anal swabs obtained from victims body. [57] The application judge was not prepared to admit the 911-trace evidence:

R. v. Badgerow, 2010 ONSC 946, [2010] O.J. No. 1028. His principal concern was his inability to assess the reliability of the statement by the Bell Canada calltester to the police without knowing its contents. [58] At para. 17, he described the Crowns reliance on the police dispatching a

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

Page: 20 He also described as circular the Crowns reliance on evidence

[59]

corroborating the reliability of the 911-trace evidence, at paras. 18-19: Similarly, it seems to me to be circular reasoning to argue that several people have identified Robert Badgerows voice as the 911 caller as extrinsic evidence that the location of the call was the payphone outside Dofasco Gate 6 when the reason for wanting to introduce that evidence is to prove the other [sic] Robert Badgerow was the person [who placed] the 911 call. Likewise, I find it to be circular reasoning to say the fact that Robert Badgerow worked at Dofasco in proximity to the phone booth outside Gate 6 is extrinsic evidence that the call was placed from that payphone in order to prove the Robert Badgerow was the 911 caller. Counsel advised me that they were unable to find any decided cases in which a hearsay statement was found to be admissible on a principled basis when neither the maker nor the recipient of the statement were known and the content of the statement had to be inferred. I am not prepared to do so in this case. [60] Significantly, however, the application judge found, at para. 20, that the

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

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identify the content of the communication, he would not admit the 911-trace evidence. Third Trial [61] The application judge considered that, as a result of s. 653(1) of the Code,

and consistent with R. v. Wu (2002), 170 C.C.C. (3d) 225 (Ont. C.A.), his evidentiary rulings made at the second trial would apply to the third trial, subject to his ability to revisit the rulings, if so advised. [62] Seizing on his comments about missing records in his earlier ruling, the

Crown sought to prove the content of a lost document on which Bell Canada would have recorded the origin of the 911 call. As expressed by the application judge, [t]he Crown argues that I should re-create the content of this lost document and then admit the content of that lost document as proof of the truth of its content, namely that the 911 call in question originated from the phone booth [outside Dofasco Gate #6]. [63] At the voir dire, the Crown adduced evidence of the accuracy of Bell

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

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[64]

The application judge said that, in the absence of authority, he was not

prepared to make up what the Bell Canada employee would have said or written and then decide that it was sufficiently reliable to be admitted as an exception to the hearsay rule. He noted that there were two methods used by the police to check the accuracy of the traces when a 911 call was made, neither of which had been employed in this case. One method was to use the lock-in feature, which the police officer receiving the 911 call at the Communication Centre could use to keep the line open, even if the caller hung up. The officer dispatched to the scene could pick up the phone and confirm with the officer at the Communication Centre that the phone was indeed the source of the call. The second method, to avoid handling of the receiver at the point of origin, was for the Communication Centre to ring back the open line, which the officer on the scene would hear. He found that the only reasonable conclusion is that the reason for utilizing one of these procedures was to avoid the possibility of a mistake as to the location of the source of the 911 call. [65] [66] II. [67] He therefore declined to reconsider his ruling. I now turn to the application judges ruling on the stay application. THE STAY RULING The application judge began his analysis by reviewing the history of the

proceedings and summarizing the evidence at the two trials at which he had

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presided. He then outlined the new evidence the Crown proposed to adduce at a fourth trial a report by a McMaster University mathematics professor, which indicated the probability the payphone booth located at Gate #6 was not the place of origin of the 911 call was less than 1 in 150 million. The Crown argued that, with this new evidence, its case would be stronger than at the previous trials.2 [68] The application judge found, at para. 33, it was unlikely this new evidence

would be admitted, because the author of the report had assumed that a Bell Canada employee reported to police that the 911 call was made from the payphone at Gate 6 Dofasco in Hamilton. He said he had twice ruled he was not prepared to first make up the words that were spoken by the Bell Canada employee and then rule that such words were admissible. [69] The application judge then reviewed a number of authorities in which the

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

The Crown did not rely on this report on this appeal.

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[70]

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

a very rare case: As result of these decisions I conclude that it is possible for there to be an abuse of process and hence a violation of section 7 of the Charter arising solely out of the number of trials that an accused is required to face. Prosecutorial misconduct is not a prerequisite. A third trial stretches but it does not exceed the limits of the communitys sense of fair play. It is only a very rare case where putting an accused in jeopardy with respect to a serious charge for the fourth time would not constitute a breach of section 7 of the Charter sufficient to warrant a stay of proceedings. An appropriate consideration in determining whether a stay of proceedings is appropriate is the length of time an accused has spent in custody. It is proposed that Robert Badgerow be tried for a fourth time on the charge that he committed first-degree murder in the death of Diane Werendowicz. Therefore, I must decide if this is one of the very rare cases where it is justified to require him to proceed with a fourth trial. [71] He then referred to R. v. McKenzie, [2004] O.J. No. 3430 (S.C.), in which

Abbey J. had considered a number of questions bearing on the issue whether proceedings should be stayed due to multiple trials, as proposed by Bayda C.J.S. in his dissenting judgment in R. v. Keyowski (1986), 28 C.C.C. (3d) 553 (Sask. C.A.), affd [1988] S.C.J. No. 28, [1988] 1 S.C.R. 657. The factors considered by the application judge, and his conclusions, are set out below. (a) How many previous opportunities has the Crown had to present its case to a jury on the charge in issue?

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[72]

The application judge observed the Crown had had three trials of the

respondent. It was likely that the evidence at the fourth trial would be substantially the same as the evidence at the second and third trials, except that additional testimony from the previous trials would have to be read to the jury due to the unavailability of witnesses caused by the passage of time. The only significant difference from the first trial was that the jury would not hear the respondents statement to the police. [73] Due to pre-trial publicity, a fourth trial would not likely be held in Hamilton,

with the result that many witnesses, who had previously testified at three trials, would be required to travel some distance in order to testify. While some of these were police and forensic witnesses (some of whom were retired), many were civilians for whom travelling to testify would be a significant inconvenience. (b) How serious is the charge in terms of loss of life, injury, loss of property? Is the mental element of the charge one of intent or recklessness? [74] The charge was the most serious in the Criminal Code, but the fact that the

charge was for first degree murder did not, of itself, make this one of those rare cases in which it would not be an abuse of process to require the accused to stand trial for a fourth time. (c) How strong is the Crowns case? Are the chances reasonably good that a fresh jury will reach a verdict? Has the Crown overcharged?

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[75]

The application judge said it was possible a differently constituted jury

would be able to reach a verdict, but it was equally possible a fourth trial would again result in a deadlocked jury. (d) Would the failure to proceed with the trial before a fresh jury create a danger to the public by reason of the accuseds character and background? How strong is the possibility of a repetition of the offence by the accused? [76] The application judge was of the view that the failure to proceed with a

fourth trial would not place the community in danger. (e) What punishment in terms of incarceration, emotional stress, pangs of conscience, loss of dignity and self-respect, loss of income, legal costs and the like, has the accused undergone to this point? (f) What is the physical and mental health of the accused and what is his ability to withstand another trial? (g) Has the prosecution generally shown fairness and competence in handling the proceedings? [77] The application judge considered the factors dealing with the conduct of

the prosecution, the effect on the respondents health as a result of the proceedings to date and his ability to withstand the stress of a fourth trial to be neutral. (h) What length of time has elapsed since the proceedings were first instituted? [78] The application judge noted it had been 31 years since the murder of Ms.

Werendowicz and 14 years had elapsed since the police first arrested the respondent. Of those 14 years, the respondent had spent almost 11 years in jail and the rest subject to house arrest.

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[79]

The application judge was not in a position to attribute the delay in

perfecting the first appeal to either the respondent or the Crown. (i) What are the views of the complainant? [80] [81] The victims family wanted a fourth trial. The application judge found, at para. 82, that a consideration of the

remaining factors leads to a conclusion that requiring Robert Badgerow to be tried for a fourth time on this charge would stretch the communitys sense of fair play and decency beyond the breaking point and hence constitute an abuse of process. The application judge was particularly concerned that the respondent, who was presumed innocent, had spent almost 11 years in jail and had been subject to very restrictive bail terms for approximately three years. He summarized the factors, at para. 83: The strength of the Crowns case, at its highest, will not improve at a fourth trial. More likely, as result of the death or unavailability of other witnesses, the Crowns case will not be as strong as at the previous three trials. The community will not be in danger if Robert Badgerow does not face a fourth trial. Finally the cost to the community, including further inconvenience to witnesses, in proceeding with a fourth trial will be significant. [82] The application judge therefore concluded, at para. 84, that this was not

one of those very rare cases in which requiring the respondent to stand trial a fourth time would not constitute a breach of s. 7 of the Charter and an abuse of

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process sufficient to warrant a stay of proceedings pursuant to s. 24(1). Accordingly, he granted the stay. III. [83] THE ISSUES I will return to the application judges stay decision later in these reasons.

To put what follows in context, however, it is essential to understand how the exclusion of the 911-trace evidence impacted the application judges decision on the stay. [84] The significance of the 911-trace evidence is obvious. The content of the

911 call, the respondents physical proximity to the payphone from which the call was made, and the presence of his semen in the victim, could permit the jury to infer that he made the call and that he was the killer. [85] With this evidence excluded, however, the respondent was able to suggest

that the call could have been made by the alternative suspect, who was working in another area of the city. At the third trial, defence counsel told the jury that it was highly unlikely that the respondent had made the call. [86] As noted above, in considering whether a stay should be granted, the

application judge addressed the questions Bayda C.J.S. identified in his dissent in Keyowski, at pp. 557-58. The first question was How many previous opportunities has the Crown had to present its case to a jury on the charge in issue? It is noteworthy that in answering that question in the case before him, at

Page: 29 pp. 558-59, Bayda C.J.S. ascribed particular importance to the Crowns previous full and unfettered opportunities to present its case: The most critical factors are contained in the first question. At the first trial, the Crown was given a full opportunity to prove its case to a trier of fact. There is nothing to indicate that the Crown was constrained by time, by a choice of the counsel it wished to retain, or a choice of the witnesses it wished to call, or by any other circumstance that would deprive it of a full and complete opportunity to prove its case. It failed to do so. So the law gave the Crown a second opportunity. Again the opportunity was full and complete. Again the Crown failed to prove its case. It now asks for a third such opportunity. The Crown contends that the third opportunity should be allowed as a matter of course. Its position is simply that the Crown should not be blamed for the two abortive proceedings. The accused is entitled to take the same position. But should that sameness in position necessarily result in a draw? I think not. The law gives to the Crown full control of the proceedings. The Crown chooses the charge to be laid and thus in a real sense chooses its own burden of proof. The Crown chooses which witnesses to call; which not to call; the order in which they will be called, and the questions they will be asked. The Crown decides when it has amassed sufficient evidence to proceed with the trial. There really is no aspect of the proceedings over which the Crown does not have control, short of the rules of practice and evidence. Thus, of the two blameless sides, fair play dictates that it is the Crown side, not the accuseds side, which should suffer, if anyone should, by reason of the abortive result of the first two trials. [87] While Bayda C.J.S. was writing in dissent in Keyowski, and while the

majority decision to direct a new trial was affirmed by the Supreme Court of

Page: 30 Canada for slightly different reasons, nothing in the Supreme Courts reasons detracts from the above observations. [88] Here, the application judge concluded that the Crown had had full

opportunities at the second and third trials to convince the juries of the respondents guilt, but had failed to do so. He also concluded it was likely that the evidence at a fourth trial would be substantially the same as at the second and third trials. [89] The Crown submits it never had a fair trial of the respondent because the

application judge excluded the 911-trace evidence. I would put it slightly differently in light of Bayda C.J.S.s reasoning. In my view, the Crown has not had a full and complete opportunity to prove its case due to the exclusion of the 911-trace evidence, a factor entirely outside its control. [90] Had it been given that opportunity, with a full evidentiary record, the

Crowns case would have been markedly stronger. The exclusion of the evidence is also relevant to the third factor in Keyowski the strength of the Crowns case and the likelihood that a jury would be able to reach a verdict. See also Hunter, at para. 29. [91] Moreover, the exclusion of relevant and admissible evidence at the earlier

trials would impact the analysis of the potential prejudice of a retrial to the integrity of the justice system and the balancing of this factor against the interests

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in a final decision on the merits, under the analysis mandated by R. v. Babos, 2014 SCC 16, discussed below. [92] For these reasons, the admissibility of the 911-trace evidence is the critical

issue in the analysis of the application judges decision to grant a stay. If that evidence was properly excluded, there is no basis on which to interfere with the application judges exercise of his discretion to stay the proceedings. If, on the other hand, the evidence should have been admitted, its exclusion was an error of law and we are required to review the exercise of this discretion, taking the availability of that evidence into account. A. The Hearsay Issue Introduction [93] In its factum, the Crown submitted that the application judge erred in

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

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[94]

For the reasons that follow, I conclude that the 911-trace evidence

required a hearsay analysis under the principled approach established by the Supreme Court of Canada in Khan. The Crown sought to introduce that evidence to prove the Bell Canada call-tester told Hamilton police, We have traced the call to a payphone at Dofasco Gate #6. Tendered for the truth of this assertion, the evidence raised hearsay dangers. The application judge was required to determine its necessity and its threshold reliability. He was also required to determine whether the respondent would have a fair opportunity to test the evidence at trial and whether its prejudicial effect outweighed its probative value. Had this analysis been undertaken, as I respectfully suggest it should have been, the evidence ought to have been admitted, based on the evidentiary record on the voir dire. [95] I will begin by reviewing the reasons for the hearsay rule and the modern

approach to hearsay in Canada. The Principled Approach to Hearsay [96] Although a universal definition of hearsay is elusive, hearsay is often

identified by its characteristics: (a) it is adduced for the truth of its contents; and (b) there is an absence of a contemporaneous opportunity to cross-examine the declarant in court and under oath: R. v. Baldree, 2013 SCC 35, 298 C.C.C. (3d) 425, at para. 30; Khelawon, at paras. 35-41.

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[97]

The rule against hearsay, and the principled approach to hearsay, have

been topics of many recent decisions of the Supreme Court of Canada. The starting point of any evidentiary analysis is that all relevant evidence is admissible: Khelawon at para. 34. Hearsay, however, is presumptively inadmissible because it is unreliable: it is not subject to contemporaneous crossexamination; it is not given under oath; and the trier of fact is not able to observe the declarant: R. v. U. (F.J.), [1995] 3 S.C.R. 764; Baldree, at paras. 31-32; Starr, at para. 159. Trial fairness is compromised by the admission of hearsay, because the party against whom it is introduced has no means of testing the reliability of the evidence and there is a real risk the jury will give it more weight than it deserves: Starr, at paras. 159, 199; Khelawon, at para. 47. [98] The Supreme Court noted in Baldree, at para. 44, that the courts have

identified a variety of concerns about hearsay, referred to as the core hearsay dangers of perception, memory, narration, and sincerity. At para. 32, Fish J. explained: First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionally misleading manner; and finally, the declarant may have knowingly made a false assertion. The opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to crossexamination. [Emphasis in original.]

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[99]

These concerns have informed the principled approach. That approach,

developed in a line of decisions of the Supreme Court of Canada, beginning with Khan, recognizes that a rigid application of the exclusionary rule would result in the unwarranted loss of much valuable evidence: Khelawon, at para. 42. It permits hearsay evidence not falling within a traditional exception to be admitted, provided its admission is necessary and it has sufficient indicia of reliability or there are sufficient means to test the evidence to compensate for the inability to cross-examine: see Khelawon, at paras. 62-63, 105; Khan; and R. v. Smith, [1992] 2 S.C.R. 915. [100] Even if the evidence meets these requirements, the trial judge retains discretion to exclude it for reasons of trial fairness if its prejudicial effect outweighs its probative value: Khelawon, at paras. 3, 49. [101] In Khelawon, at para. 2, Charron J. summarized the approach: When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trial judge acts as a gate-keeper in making this preliminary assessment of the threshold reliability of the hearsay statement and leaves the ultimate determination of its worth to the fact finder.

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[102] At para. 3 of Khelawon, she described the different roles of the judge and jury in the determining the threshold reliability and the ultimate reliability of the statement and the responsibility of the judge in determining admissibility: The distinction between threshold and ultimate reliability reflects the important difference between admission and reliance. Admissibility is determined by the trial judge based on the governing rules of evidence. Whether the evidence is relied upon to decide the issues in the case is a matter reserved for the ultimate trier of fact to decide in the context of the entirety of the evidence. The failure to respect this distinction would not only result in the undue prolongation of admissibility hearings, it would distort the fact-finding process. In determining the question of threshold reliability, the trial judge must be mindful that hearsay evidence is presumptively inadmissible. The trial judges function is to guard against the admission of hearsay evidence which is unnecessary in the context of the issue to be decided, or the reliability of which is neither readily apparent from the trustworthiness of its contents, nor capable of being meaningfully tested by the ultimate trier of fact. In the context of a criminal case, the accuseds inability to test the evidence may impact on the fairness of the trial, thereby giving the rule a constitutional dimension. Concerns over trial fairness not only permeate the decision on admissibility, but also inform the residual discretion of the trial judge to exclude the evidence even if necessity and reliability can be shown. As in all cases, the trial judge has the discretion to exclude admissible evidence where its prejudicial effect is out of proportion to its probative value. [Emphasis in original.] Admissibility of the 911-Trace Evidence [103] I now turn to the admissibility of the 911-trace evidence under the principled approach.

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Is the evidence relevant? [104] The evidence sought to be adduced to support the inference the police were dispatched to Dofasco Gate #6 because Bell Canada traced the 911 call to a payphone at that location is irrelevant on its own. It would become relevant, however, if the jury made two other findings available on the evidence: (1) the caller had some information known only to the police and the killer; and (2) at the time the 911 call was made, the respondent was working in a building adjacent to the payphone. [105] Given the availability of these findings, and the undisputed DNA evidence linking the respondent to the victim, the 911-trace evidence is highly relevant to the issue whether the respondent was the killer. Is the evidence hearsay? [106] Hearsay typically consists of spoken words. It can, however, consist of conduct. Such conduct can be of two kinds assertive conduct and nonassertive conduct. This appeal concerns the latter, but I will briefly discuss both types. [107] Assertive conduct refers to non-verbal conduct that is intended as an assertion. Some examples include: nodding the head (indicating yes Chandrasekera v. The King, [1937] A.C. 220 (P.C.)); pointing to someone (hes the one who did it - R. v. Underwood, 2002 ABCA 310, 130 C.C.C. (3d) 500);

Page: 37 pointing at something (thats it - R. v. Perciballi (2001), 54 O.R. (3d) 346 (C.A.)); shrugging the shoulders (I dont know); or showing something to someone, without accompanying words (R. v. MacKinnon, 2002 BCCA 249, 165 C.C.C. (3d) 73). In these cases, the conduct is tendered in evidence to prove the truth of an assertion. The trier of fact must determine the meaning of words the declarant intended to convey by the conduct. [108] A hearsay analysis is clearly required and can readily be applied to assertive conduct. Thus, under Rule 801(a) of the Federal Rules of Evidence in the United States, hearsay is defined as including not only oral and written assertions, but also nonverbal conduct, if the person intended it as an assertion. [109] We are faced here with the more challenging issue whether non-assertive conduct is hearsay. This term describes conduct, whether by words or deeds or both, from which the trier is asked to infer a statement based on the declarants belief. As McCormick put the question, does apparent belief translated into action stand in any better case as respects the hearsay rule than apparent belief translated into statements? (emphasis omitted): Charles T. McCormick, The Borderland of Hearsay (1930) 39 Yale L. J. 489, at p. 491. [110] In Baldree, the Supreme Court addressed part of this issue the question of implied assertions or the unintended implications of speech. These

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expressions refer to statements made by a declarant that are sometimes treated as circumstantial evidence of the declarants belief. [111] The circumstances of Baldree were not unusual. In the course of investigating a break-in at Baldrees apartment, police discovered a quantity of marijuana and cocaine, which they seized, along with a cell phone and cash. Baldree was arrested and charged with possession of the drugs for the purpose of trafficking. After he had been taken to a police station, his cell phone rang and one of the officers answered it. The caller asked to speak to Baldree, whom he identified by name. He said he wanted an ounce of weed. The officer asked how much Baldree charged him, and the caller said $150. The officer said he would deliver the drugs. He did not in fact have any further contact with the caller. [112] The trial judge permitted this evidence to be adduced, concluding it was circumstantial evidence Baldree was engaged in trafficking. [113] This court, Watt J.A. dissenting, allowed an appeal and ordered a new trial: 2012 ONCA 138, 109 O.R. (3d) 721. Feldman J.A. found a hearsay analysis should apply to both express and implied assertions: see R. v. Kearley, [1992] 2 A.C. 228 (H.L.); and R. v. Wilson (1996), 29 O.R. (3d) 97 (C.A.). She concluded the telephone call was hearsay, was inadmissible under the principled approach and its prejudicial effect outweighed its probative value. Blair J.A. concurred in

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the result. However, he did not decide whether the evidence was hearsay. He held that, whether or not the evidence was hearsay, it required a necessity/reliability analysis and an assessment of its prejudicial effect against its probative value. In his view, applying those tests, the evidence was inadmissible. Watt J.A. agreed with the trial judge that the evidence was not hearsay and a principled analysis was unnecessary. The evidence was not adduced to prove the truth of its contents, but as circumstantial evidence to show Baldree was engaged in trafficking. The prejudicial effect of the evidence did not outweigh its probative value. [114] In the Supreme Court, the evidence was viewed by the majority as an implied assertion that Mr. Baldree sells drugs. The majority held an implied assertion, tendered for the truth of its contents, stands on the same footing as an express assertion to the same effect. The majority rejected a formalistic analysis in favour of the courts purposive approach to the hearsay rule (at para. 42), holding that the need for a functional approach to implied assertions is readily apparent, bearing in mind the core hearsay dangers of perception, memory, narration, and sincerity (at para. 44). [115] The majority noted, at para. 45, the hearsay danger of insincerity may be reduced in the case of implied assertions, because the declarant has no intention of making an assertion:

Page: 40

It has been argued that the danger of lack of sincerity is sometimes diminished for implied assertions. This is because [i]f a declarant possesses no intention of asserting anything, it would seem to follow that he also possesses no intention of misrepresenting anything: P. R. Rice, Should Unintended Implications of Speech be Considered Nonhearsay? The Assertive/Nonassertive Distinction Under Rule 801(a) of the Federal Rules of Evidence (1992), 65 Temp. L. Rev. 529, at p. 531. [116] However, it noted the other hearsay dangers misperception, memory and ambiguity or narration remain, and may actually increase in the case of implied hearsay. Moreover, the danger of insincerity may be present if the declarant intentionally conveys a false message. [117] The majority in Baldree concluded, at para. 48, that there was no reason not to treat express and implied assertions in the same way: Accordingly, there is no principled reason, in determining their admissibility, to distinguish between express and implied assertions adduced for the truth of their contents. Both function in precisely the same way. And the benefits of cross-examining the declarant are not appreciably different when dealing with one form of testimony than the other. If an out-of-court statement implicates the traditional hearsay dangers, it constitutes hearsay and must be dealt with accordingly. [118] Ultimately, applying the principled approach, the majority held the necessity requirement had not been met, because the police made no attempt to procure the evidence of the declarant the would-be drug purchaser who made the telephone call. Moreover, without cross-examination, it could not be said that the belief expressed in a single telephone call was sufficiently reliable.

Page: 41

[119] Moldaver J. wrote separate concurring reasons. Although he agreed a principled hearsay analysis was required, and the evidence was inadmissible under that analysis, he considered that the majority reasons placed too much emphasis on the necessity requirement. He concluded on this point, at para. 109: At bottom, the point is that the necessity criterion is not meant to stifle the admission of reliable evidence. Rather, it is founded on societys interest in getting at the truth (Khelawon, at para. 49). Necessity should be viewed as a servant of the truth, not its master. For that reason, in cases such as this one -- where the prospect of locating, identifying, and receiving accurate information from a forthcoming and cooperative caller is remote -- if the evidence is reliable, it should be admitted because its reception into evidence will be necessary in order to get closer to the truth. If the evidence is not reliable, it should be excluded. Either way, in my view, the focus should be reliability. [120] In Baldree, the Supreme Court of Canada expressly left for future consideration the issue whether the hearsay rule applies to assertions implied through non-verbal conduct, sometimes referred to as inferred assertions or non-verbal unintended assertions. The majority stated, at para. 63: The issue of the applicability of the hearsay rule to inferences that can be drawn from non-verbal conduct is best left for another day. For present purposes, I find it sufficient to say that one can engage in conduct without ever intending to communicate anything to anyone, [but t]he same is not true of speech or a combination of speech and conduct (for example, placing a bet) because the sole purpose of speech is communication: Rice, at p. 536. [Emphasis in original.]

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[121] This case raises that issue. The 911-trace evidence was tendered as an implied assertion that the police believed the 911 call had been traced to the payphone at Dofasco Gate #6 and that the belief was true. [122] The subject has been much discussed in the academic literature, but less so in the case law. One classic example, among several mentioned in the speech of Baron Parke in Wright v. Doe d. Tatham (1837), 7 Ad. & E. 313, 112 E.R. 488 (Exch. Ch.), at p. 526, is the conduct of a deceased captain, on a question of seaworthiness, who, after examining every part of the vessel, embarked on it with his family. Clearly, the captains statement I think this ship is seaworthy would be hearsay if adduced to prove the truth of his belief. Is proof of his conduct, as circumstantial evidence of his belief in the ships seaworthiness, inadmissible on the same ground? [123] Another example comes from the facts of Wright v. Doe itself. The issue was testamentary capacity. It was sought to introduce in evidence letters written to the testator by several people, some of whom were deceased, who wrote in terms indicating they considered him capable of understanding ordinary business affairs. The evidence might have been regarded as circumstantial evidence that the testator was sane, because others who knew him treated him as being of sound mind. However, the evidence was excluded as hearsay.

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[124] In the United States, the Advisory Committee on the Federal Rules of Evidence3 noted in 1972 that some hearsay dangers exist when evidence of nonverbal conduct is tendered to show the actors belief as a basis to infer the truth of the that belief: It can scarcely be doubted that an assertion made in words is intended by the declarant to be an assertion. Hence verbal assertions readily fall into the category of statement. Whether nonverbal conduct should be regarded as a statement for purposes of defining hearsay requires further consideration. Some nonverbal conduct, such as the act of pointing to identify a suspect in a lineup, is clearly the equivalent of words, assertive in nature, and to be regarded as a statement. Other nonverbal conduct, however, may be offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved, from which belief the existence of the condition may be inferred. This sequence is, arguably, in effect an assertion of the existence of the condition and hence properly includable within the hearsay concept. See Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv. L. Rev. 177, 214, 217 (1948), and the elaboration in Finman, Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence, 14 Stan.L.Rev. 682 (1962). [125] The Committee decided, however, that the hearsay danger of sincerity is reduced in the case of non-verbal conduct, because the actor does not generally intend to deceive an observer. It confirmed: Admittedly evidence of this character is untested with respect to the perception, memory, and narration (or

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

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their equivalents) of the actor, but the Advisory Committee is of the view that these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds. No class of evidence is free of the possibility of fabrication, but the likelihood is less with nonverbal than with assertive verbal conduct. The situations giving rise to the nonverbal conduct are such as virtually to eliminate questions of sincerity. Motivation, the nature of the conduct, and the presence or absence of reliance will bear heavily upon the weight to be given the evidence. Falknor, The Hear-Say Rule as a See-Do Rule: Evidence of Conduct, 33 Rocky Mt. L. Rev. 133 (1961). Similar considerations govern nonassertive verbal conduct and verbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted This assumption has been criticized by some authors: see, e.g., Rices article cited in Baldree. [126] McCormick foresaw the issue, and advocated a principled approach, in his 1930 Borderland of Hearsay article. He criticised the rigidity of the hearsay rule and its exceptions and proposed a simple rule: Hearsay is inadmissible except where the judge in his discretion finds it needed and trustworthy. He suggested , at p. 504, that the principled approach should be applied to conduct adduced to show the actors belief and thus the truth of the fact believed: It would seem sensible to conclude that conduct (other than assertions) when offered to show the actors beliefs and hence the truth of the facts so believed, being merely analogous to and not identical with typical hearsay, ought to be admissible whenever the trial judge in his discretion finds that the action so vouched

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for the belief as to give reasonable assurance of trustworthiness. [127] In the most recent edition of McCormick on Evidence, Seventh Ed. by Kenneth S. Broun (Thomson Reuters, 2013), at 250, it is suggested that McCormicks earlier opinion was a transitional one and that non-assertive conduct can be excluded from the operation of the hearsay rule, with issues such as perception, memory and reliance going to weight, rather than admissibility. The authors suggest that because there is usually no intent to communicate by such conduct, there is minimal risk of intent to deceive and the inability to crossexamine on matters of perception and memory can go to weight. [128] To the extent the issue has been considered in Canada, the cases have tended to regard non-assertive conduct as outside the scope of the hearsay rule. The cases are summarized in Professor Hamish Stewart, Halsburys Laws of Canada: Evidence, First Ed. (Markham: LexisNexis, 2010), at para. HEV-83: Hearsay by conduct. Conduct, to the extent that it is premised on a belief about the truth of a fact, might be seen as hearsay if offered to prove that fact. However, Canadian courts have been reluctant to accept this line of reasoning. The Ontario Court of Appeal has restricted the concept of hearsay by conduct to actions or behaviour which are themselves means of expression, such as shrugs, headshakes or other gestures that are a substitute for or supplement to oral communication [R. v. McKinnon (1989), 33 O.A.C. 114 (C.A.), at para. 17]. The British Columbia Court of Appeal has held that hearsay may include conduct which conveys meaning, but held that a womans taking a gram of marijuana from her purse and handing it to a police officer was not

Page: 46

equivalent to a statement that she had obtained it from the accused a few minutes earlier [MacKinnon, at paras. 33, 39]. In a similar vein, Canadian courts have generally rejected the argument that behaviours by a complainant in a sexual assault case that are said to indicate sexual abuse should be construed as hearsay; instead, such evidence is circumstantial evidence tending to confirm the Crowns allegation that the complainant was assaulted. [R. v. D. (G.N.) (1993), 81 C.C.C. (3d) 65 (Ont. C.A.), leave to appeal to S.C.C. refused, [1993] S.C.C.A. No. 257; and R. v. C.(F.) (1996), 104 C.C.C. (3d) 461 (Ont. C.A.).] [129] In the decision of this court in McKinnon, a murder victim had been found buried in a remote area in Northern Ontario. There was evidence that the police officers who discovered the body were accompanied by the appellants wife. There was no evidence of communications between the police and the wife, but the accused argued that the evidence should not have been admitted because the jury might have inferred that the wife had led the police to the location of the grave and that she, in turn, must have learned the location from her husband. Not unlike this case, the evidence could have been relied upon as an implied assertion by the wife, This is where the body is buried, or by the police, We believe the body is buried here because the accuseds wife told us it was. [130] The trial judge had ruled the wife could not testify at the instance of the Crown and could not testify as to what, if anything, she had said to the police. [131] The Crown said it wanted to adduce the evidence of the wifes presence to negative the suggestion that police had obtained information concerning the

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location of the grave from an intended accomplice whom the defence suggested was the killer. [132] This court held the evidence was not hearsay. In so doing, Finlayson J.A. appears to have limited this aspect of the hearsay rule to assertive non-verbal conduct, at para. 17: In the first place, her presence was a fact and was part of the police officers testimony as to the search and discovery, which search and discovery surely was a relevant fact in the light of the Crown's theory of the plan to kill and hide the body. In the second place, her presence in the manner described cannot be characterized as hearsay by conduct. It has always been my understanding that such hearsay usually amounted to a description of actions or behaviour which are themselves means of expression, such as shrugs, headshakes, or other gestures that are a substitute for or supplement to oral communication. Evidence of such conduct is tendered as evidence of an assertion by the person who performed the action. As such, it is inadmissible hearsay. On the facts of this appeal I see nothing in the evidence about the wifes accompanying the police officers to the gravesite which amounts to an assertion or a statement that she received information about its location from her husband, from her husband alone, and from no other source. The evidence is not tendered as evidence of an assertion by the wife. [I]t is not hearsay. For a fuller discussion, see McCormick on Evidence, 3rd ed. (1984), at pp. 736-742. [133] Other cases, including the decision of the British Columbia Court of Appeal in MacKinnon, referred to by Professor Stewart, and the decision of this court in Mota, while considering the possibility of a hearsay analysis, have treated evidence of conduct as circumstantial evidence as opposed to hearsay. Similarly,

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in the two sexual assault cases referred to by Professor Stewart, the unusual conduct of a child victim after the alleged assault was treated not as hearsay but as evidence confirming the child had been exposed to sexual behaviour of an adult: see D. (G.N.); and C. (F.), at para. 45, per Weiler J.A. [134] For the purposes of this case, it is unnecessary to state a general principle as to whether inferences from non-verbal conduct should be treated as hearsay. I suggest, however, that a principled case-by-case approach may be appropriate, depending on the nature of the conduct, the presence or absence of hearsay dangers and concerns with respect to trial fairness due to the inability to crossexamine the declarant or other witnesses. See Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuerst, Sopinka, Lederman & Bryant, The Law of Evidence in Canada, Third Ed. (Markham: LexisNexis, 2009), at para. 6.55; and Khelawon, at para. 93. [135] In this case, I would apply the principled approach. It focuses the analysis on whether the inferences to be drawn from the conduct, or the implied assertions, are sufficiently reliable to be left with the jury and whether there are sufficient means to test the evidence to ensure the process is fair to the respondent.

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Is the evidence necessary? [136] The necessity requirement is based on the societal interest in getting at the truth: Khelawon, at para. 49. Hearsay is admitted, despite the inability to crossexamine the maker, because it is the only way in which the evidence can be obtained. [137] The Crown submits the 911-trace evidence is necessary due to the inability to locate some witnesses and the inability of other witnesses to recall material events. The Bell Canada call-tester could not be located, in spite of considerable effort. Due to the passage of time, Sergeant Jachymek could not recall what, if anything, the call-tester told him. Although some witnesses are available and have recollections, and the recording of the 911 calls and conversations in the Communication Centre is available, there are gaps in the chain of communication. These gaps can to some extent be filled by evidence of the practices followed by police and Bell Canada in tracing 911 calls in 1981, but there is no direct evidence of some of the communications leading to the dispatch of the police to Dofasco Gate #6. [138] The necessity of the evidence was conceded by the respondent before the application judge and in this court. As the application judge noted, both Bell Canadas written record of the trace and the police report of the request for the

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trace were unavailable. He found that due to the passage of time the documents could not be located or they had been lost or destroyed. [139] In view of the time elapsed between the killing and the trial, the unavailability of contemporaneous records, and the concession of counsel, I am satisfied that the 911-trace evidence meets the necessity requirement. Moreover, as was noted in Baldree, at para. 72, the criteria of necessity and reliability work in tandem: if the reliability of the evidence is sufficiently established, the necessity requirement can be relaxed. See also Khelawon, at paras. 46, 83; R. v. B. (K.G.), [1993] 1 S.C.R. 740; and U. (F.J.). [140] As a consequence, the key issue is the reliability of the 911-trace evidence. Is the evidence reliable? [141] The application judge made two significant findings of fact concerning Bell Canadas tracing process:4 the 911 system in place in Hamilton in 1981 was designed and implemented to accurately trace the source of incoming 911 calls to the Hamilton Police Communication Cent[re]; and Bell Canada employees involved in the tracing of 911 calls, in all likelihood, performed their responsibilities accurately. As noted, however, he was not prepared to draw the conclusion that the calltester told the police the call had been traced to Dofasco Gate #6.
4

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

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[142] The respondent concedes there is no evidence that mechanical or computer error could have compromised the process for tracing the 911 call. His core submission is that the process used to trace the call required human input at various stages and the implied assertion by Bell Canada, We have traced the call to a payphone at Dofasco Gate #6, could have been the product of any number of human errors in Bell Canadas tracing process. Narration and Ambiguity [143] The application judges fundamental concern about the admissibility of the 911-trace evidence was the narration danger the danger of ambiguity in the statement to be implied from the conduct. He thought the Bell Canada call-tester might have only identified the phone booth outside Dofasco Gate 6 as a possible but not a definite location of the origin of the 911 call (at para. 17). [144] The respondent does not really dispute that a jury could infer from the 911trace evidence that Bell Canada traced the phone call to the payphone at Dofasco Gate #6. Like the application judge, however, he suggests that Bell Canadas statement to the police could have been qualified such as, it could have been a payphone at Dofasco or any one of a number of payphones in the area; you should check it out.

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[145] The danger of ambiguity is not unique to assertions implied from nonverbal conduct. It can arise in the case of assertive conduct, implied assertions (Baldree) and indeed ordinary hearsay. [146] Before admitting evidence of a hearsay statement, the judge must be satisfied that it can be sufficiently proven to enable the jury to determine the content of the declaration. The issue is illustrated by incomplete utterances: R. v. Ferris, [1994] 3 S.C.R. 756, affg (1994), 149 A.R. 1 (C.A.). In Ferris, the accused was overheard saying I killed David. However, the listener did not hear what was said immediately before or immediately after the utterance. The declarant might have said, for example, there are people saying I killed David, but I swear on my mothers grave I didnt. Sopinka J., in a brief oral judgment, said that [the statements] meaning was so speculative and its probative value so tenuous that the trial judge ought to have excluded it on the ground its prejudicial effect overbore its probative value. [147] The decision of this court in R. v. Esrabian, 2013 ONCA 761, 313 O.A.C. 273, provides an example of the exclusion of an implied assertion due to the danger of ambiguity. In that case, it was alleged that the accused and one Yegin had been recruited by a cocaine dealer, Saleh, to murder another dealer. According to the Crowns case, Yegin had taken the victim to a remote location, where he was shot by either the accused or Saleh. Yegin refused to testify at the

Page: 53 accuseds trial and the Crown relied on various statements he had made, as well as his evidence at the preliminary inquiries of the accused and Saleh. [148] In some of the statements, which were admitted at trial under the principled exception to the hearsay rule, Yegin had said that two or three months after the murder, Saleh had told him he wanted to move the victims body because he did not trust the accused. Yegin also said that Saleh had asked him to kill the accused. The accused sought a jury instruction that these statements implied he was not a party to the killing. [149] This court held, at paras. 44-46, that neither necessity nor reliability had been established with regard to this inference from Salehs statements. The evidence of an implied assertion was not reliable because it was capable of more than one meaning: To the extent that the appellant offers the statements as implied assertions by Saleh that the appellant was not a participant in the plan to murder Hassan, those statements are now classified as hearsay and were admissible only if the necessity and reliability criteria were met: [Baldree, at paras. 44-54]. Neither criterion is met. The defence did not attempt to call Saleh or offer any explanation for an inability to call Saleh. Necessity is not demonstrated. Nor is the evidence sufficiently reliable as an implied assertion that the appellant was not involved in the plan to execute the deceased to justify its admission into evidence. Reading an implied assertion into Salehs comments to the effect that the appellant was not

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involved in the killing is no more tenable a reading of those statements than one implying that the appellant was involved, but could no longer be trusted. The nature of the statements simply does not allow any reliable conclusion as to the implied assertion, if any, contained in the statements. Any determination as to what, if anything, Saleh implied about the appellants involvement in the murder in his statements to Yegin would be entirely unreliable absent any opportunity to question Saleh under oath. [150] In contrast to these cases, in my respectful view, the inability of the application judge to determine the precise content of the statement made by the call-tester to the police should not have foreclosed a reliability analysis in this case. [151] There was expert evidence that Bell Canadas tracing procedure was not capable of identifying a possible location or multiple locations it either identified a location or it did not. As well, the application judge had found, in his ruling on the 911-trace evidence at the second trial, that the Bell Canada employees involved in tracing the 911 call had, in all likelihood, performed their responsibilities properly. Moreover, the conduct of the police did not suggest any ambiguity about Bell Canadas response. There was evidence that following the call from Bell Canada, a call was immediately placed to Dofasco asking for confirmation there was a payphone at Gate #6 and asking that no one be permitted to use it until police arrived. There was no evidence that inquiries were made about other phones in the area or anywhere else. A police car was

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dispatched only to Dofasco Gate #6 and not to any other location. When police arrived at Gate #6 they acted with deliberation. Wire cutters were used to sever the cord of the telephone handset for forensic analysis. Police officers searched the adjacent building for the caller. These actions were consistent with the belief that the 911 call was made from the payphone and inconsistent with a belief that it was made from some other place. [152] In my view, in concluding that the Bell Canada call-tester may have reported a possible but not definite location, the application judge engaged in speculation that had no support in the evidence. [153] Thus, there was evidence from which a jury could properly conclude: the 911 call was traced to the payphone at Dofasco Gate #6; it could not have been a possible trace; and there was no potential uncertainty or ambiguity in the report of the call. As I will explain, there were also circumstantial guarantees of the reliability of the 911-trace evidence and other evidence corroborative of its reliability. Perception, Memory and Sincerity [154] Concerns about the declarants perception and memory are not engaged here. Nor is sincerity a concern, because there is no possibility that the conduct in question was intended to mislead those who observed it.

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Circumstantial Guarantees of Reliability [155] There are, as well, significant circumstantial guarantees of the

trustworthiness of the 911-trace evidence. The 911 call, its tracing and the police response were part of a routine process that had been established for the very purpose of accurately tracing a 911 call to the correct address in order to locate and respond to the emergency. A 911 call is sometimes perhaps frequently a life and death situation and emergency responders have to be able to find the source of the call if the caller is unable to provide it or the call is interrupted. Those involved would have been highly motivated to ensure that the trace and the communication of its results were accurate. The response in this case was typical. Because neither the police nor Bell Canada had any knowledge of the respondents connection to the victim, there would have been no reason to distort the results to implicate him, even subconsciously. [156] Not unlike some of the traditional hearsay exceptions, therefore, the circumstances surrounding the conduct in question, culminating in the dispatch of a police cruiser to Gate #6, provide a measure of confidence in the reliability of the inference to be drawn from that conduct. Corroboration [157] At the second trial, the application judge rejected the Crowns argument, founded on Khelawon, that the 911-trace evidence was reliable because it was

Page: 57 corroborated by the respondents proximity to the payphone. He described this as circular reasoning. With respect, I disagree. [158] In Khan, the hearsay evidence was a 3-year-old childs spontaneous report of sexual assault, shortly after a visit to the doctors office. In finding the statement admissible under the principled approach, McLachlin J. said it was necessary (the trial judge having found the child was not competent to testify under oath nor could she give unsworn evidence) and reliable, because, among other things, it was corroborated by real evidence, at p. 548: I conclude that the mothers statement in the case at bar should have been received. It was necessary, the childs viva voce evidence having been rejected. It was also reliable. The child had no motive to falsify her story, which emerged naturally and without prompting. Moreover, the fact that she could not be expected to have knowledge of such sexual acts imbues her statement with its own peculiar stamp of reliability. Finally, her statement was corroborated by real evidence. [Emphasis added.] [159] The evidence was a wet spot on the childs clothing, observed by her mother immediately after the child had been left alone with the doctor for a few minutes. Subsequent testing revealed the presence of semen and saliva. This evidence was, quite obviously, corroborative of the childs statement. [160] In Smith, decided two years after Khan, however, Lamer C.J. observed, at p. 933, that notwithstanding the comments in Khan, the reliability analysis was entirely a function of the circumstances under which the statement in question

Page: 58 was made. Despite the evolution of an exception to this principle in the case of prior inconsistent statements (see U. (F.J.)), the majority in Starr confirmed that while corroboration was something for the trier of fact to consider in determining the ultimate reliability of the evidence, it should not enter into the determination of threshold reliability. [161] However, in Khelawon the Supreme Court of Canada revisited its observations in Starr concerning the use of corroborating or conflicting evidence in assessing the threshold reliability of hearsay. [162] In that case, five elderly residents of a retirement home had made statements claiming they had been assaulted by the manager of the home. By the time of trial, four complainants had died of natural causes and the fifth was no longer competent to testify. All five complainants had given videotaped statements to the police, but only one had testified at the preliminary hearing. The trial judge had admitted all of the statements, finding they were reliable, largely on the basis of striking similarities between them, and ultimately convicted the accused on charges relating to two complainants. [163] The majority in this court ruled the statements should have been excluded and acquitted him. Blair J.A., dissenting, would have upheld the conviction in relation to one complainant. The Crowns appeal was with respect to only that complainant.

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[164] Charron J., giving the unanimous judgment of the seven-member panel of the Supreme Court, stated that corroborative evidence could be considered in the reliability analysis, effectively overruling previous authority to the contrary (at para. 4): As I will explain, I have concluded that the factors to be considered on the admissibility inquiry cannot be categorized in terms of threshold and ultimate reliability. Comments to the contrary in previous decisions of this Court should no longer be followed. Rather, all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence. In each case, the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility. [Emphasis added.] [165] On the facts, she held the statement should not have been admitted, because the circumstances in which it came about did not provide assurances of its inherent reliability. Moreover, the unavailability of the declarant for crossexamination posed significant limitations on the accuseds ability to test the evidence and, in turn, on the trier of facts ability to properly assess its worth (para. 7). [166] At para. 52, Charron J. observed that while the judge determining the admissibility of the statement does not determine whether a trier of fact will ultimately rely upon the statement as true, it is not so clear that in every case threshold reliability is not concerned with whether the statement is true or not (emphasis in original). .

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[167] She continued, at para. 54, noting that in Khan the semen stain was a piece of evidence that went to the threshold reliability of the childs statement: Much of the confusion in this area of the law has arisen from this attempt to categorically label some factors as going only to ultimate reliability. The bar against considering corroborating or conflicting evidence, because it is only relevant to the question of ultimate reliability, is a further example. Quite clearly, the corroborative nature of the semen stain in Khan played an important part in establishing the threshold reliability of the child's hearsay statement in that case. [168] Later in her reasons, Charron J. returned to the observations in Starr concerning the use of corroborating evidence in the threshold reliability inquiry. She observed, at para. 93, that it was not appropriate to categorize relevant factors in terms of threshold and ultimate reliability: As I trust it has become apparent from the preceding discussion, whether certain factors will go only to ultimate reliability will depend on the context. Hence, some of the comments at paras. 215 and 217 in Starr should no longer be followed. Relevant factors should not be categorized in terms of threshold and ultimate reliability. Rather, the court should adopt a more functional approach as discussed above and focus on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers. In addition, the trial judge must remain mindful of the limited role that he or she plays in determining admissibility - it is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire.

Page: 61 [169] Justice Charron preferred the views expressed in Justice Kennedys dissent in the United States Supreme Courts decision in Idaho v. Wright, 497 U.S. 805 (1990), concerning the use of corroboration to support the trustworthiness of a statement.5 Justice Kennedy had stated, at pp. 828-29: I see no constitutional justification for this decision to prescind corroborating evidence from consideration of the question whether a childs statements are reliable. It is a matter of common sense for most people that one of the best ways to determine whether what someone says is trustworthy is to see if it is corroborated by other evidence. In the context of child abuse, for example, if part of the childs hearsay statement is that the assailant tied her wrists or had a scar on his lower abdomen, and there is physical evidence or testimony to corroborate the childs statement, evidence which the child could not have fabricated, we are more likely to believe that what the child says is true. Conversely, one can imagine a situation in which a child makes a statement which is spontaneous or is otherwise made under circumstances indicating that it is reliable, but which also contains undisputed factual inaccuracies so great that the credibility of the childs statements is substantially undermined. Under the [majoritys] analysis, the statement would satisfy the requirements of the Confrontation Clause despite substantial doubt about its reliability. [170] Charron J. added, at para. 100: In my view, the opinion of Kennedy J. better reflects the Canadian experience on this question. It has proven difficult and at times counterintuitive to limit the inquiry to the circumstances surrounding the making of the statement. This Court itself has not always followed this

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

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restrictive approach. Further, I do not find the majority [of the United States Supreme Courts] concern over the bootstrapping nature of corroborating evidence convincing. On this point, I agree with Professor Paciocco who commented on the reasoning of the majority in Idaho v. Wright as follows (at p. 36):6 The final rationale offered is that it would involve bootstrapping to admit evidence simply because it is shown by other evidence to be reliable. In fact, the bootstrapping label is usually reserved to circular arguments in which a questionable piece of evidence picks itself up by its own bootstraps to fit within an exception. For example, a party claims it can rely on a hearsay statement because the statement was made under such pressure or involvement that the prospect of concoction can fairly be disregarded, but then relies on the contents of the hearsay statement to prove the existence of that pressure or involvement: [Ratten v. R, [1972] A.C. 378 (P.C.)]. Or, a party claims it can rely on the truth of the contents of a statement because it was a statement made by an opposing party litigant, but then relies on the contents of the statement to prove it was made by an opposing party litigant: see R. v. Evans, [1991] 1 S.C.R. 869. Looking to other evidence to confirm the reliability of evidence, the thing Idaho v. Wright purports to prevent, is the very antithesis of bootstrapping. [Emphasis in original.] [171] In R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, Charron J., writing for the majority, found the trial judge had erred in finding the declarants similar

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

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statements to others corroborated certain hearsay statements. She observed, at para. 83, that [i]ndependent evidence that supports the truth of an assertion is corroborative. Repeating the same statement to different people is not corroborative of the truth of the statement. Hence the rule against admission of prior consistent statements: R. v. D.B., 2013 ONCA 578, 31 O.A.C. 294, at para. 31. [172] However, in the following paragraph, Charron J. explained that corroboration could be found in evidence that substantiates the trustworthiness of the statement. She gave an example that has some resonance in this case, at para. 84: This Court clarified in Khelawon that corroboration can be considered in assessing the threshold reliability of a statement. Indeed, corroboration can be powerful to substantiate the trustworthiness of a statement. Recall the semen stain in [Khan]. For example here, [the declarant] told the police that [the accused] had admitted to sexually assaulting both victims after their death. There was no forensic evidence of this nature on the voir dire or at trial. However, assuming that there had been evidence that the victims had indeed been sexually assaulted, and that this evidence was not likely to have been known by anyone other than the investigators and the perpetrator at the time of the statement, this corroborative evidence would lend much cogency to the statement. However here, the evidence erroneously relied upon by the trial judge as corroborative is of no assistance in assessing the inherent trustworthiness of [the declarants] statements.

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[173] In R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, Charron J. had more to say on the comments in Khelawon and the need to avoid pre-empting the issue of ultimate reliability on the admissibility inquiry. At paras. 53-57, she again emphasized the distinction between threshold and ultimate reliability: Before concluding, I would like to say a few words in response to counsels submissions at the hearing on the question of corroboration. Both counsel argued that the analysis of threshold reliability may well have been different at trial with the benefit of Khelawons clarification of the proper use to be made of corroborating or conflicting evidence on the admissibility voir dire. It is important to emphasize that Khelawon did not broaden the scope of the admissibility inquiry; it merely refocused it. This Court held that the relevant factors to be considered on the admissibility inquiry should no longer be categorized as going either to threshold or ultimate reliability. Rather, the Court stated that a functional approach should be adopted Hence, the Court clarified that in appropriate circumstances, a corroborative item of evidence can be considered in assessing the threshold reliability of a statement. Consider, on the one hand, the hearsay statement of a complainant who asserts that she was repeatedly stabbed but has no injury to show in support. The lack of corroborative evidence would seriously undermine the trustworthiness of the statement and, indeed, would likely be fatal to its admissibility. On the other hand, an item of corroborative evidence can also substantiate the trustworthiness of a statement. Recall the semen stain in [Khan]. Where an item of evidence goes to the trustworthiness of the statement, Khelawon tells us that it should no longer be excluded simply on the basis that it is corroborative in nature.

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However, the Court in Khelawon also emphasized the important differences between threshold and ultimate reliability and the principle bears repeating. Trial judges must be aware of the limited role they play in determining admissibility. It is essential to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire: see Khelawon, at para. 93. For example, Crown counsel in this case submitted that it would be a shocking coincidence for Mr. Ellison to have falsely implicated Mr. Blackmans brother in the strip club shooting and then for Mr. Keene to identify Mr. Blackman as the man who killed the deceased. The Crown offers as further corroboration the fact that the same gun was used in both the February and April incidents. These items of evidence may indeed be supportive of the Crowns theory that Mr. Blackman is the person who killed Mr. Ellison and that he did so in retaliation for the stabbing. However, the items of evidence can only take on this corroborative character when they are considered in the context of the evidence as a whole. This kind of inquiry goes far beyond the trial judges role in determining whether Mr. Ellisons statements to his mother that the shooter outside the strip club was the brother of the person he stabbed are sufficiently reliable to warrant admission. The admissibility voir dire must remain focused on the hearsay evidence in question. It is not intended, and cannot be allowed by trial judges, to become a full trial on the merits. [174] It is apparent in Khelawon that Charron J. was not restricting her observations on the use of corroborating evidence to cases involving sexual abuse of children. Nor has it been interpreted in that fashion by this court: see R. v. Singh, 2010 ONCA 808, 266 C.C.C. (3d) 466, at para. 34, leave to appeal to

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S.C.C. refused, [2011] S.C.C.A. No. 48; and R. v. Carroll, 2014 ONCA 2, at paras. 87, 103, 112. [175] In this case, corroborative evidence provides an assurance of the threshold reliability of the trace and of the accurate communication of the results to police. The 911 call resulted in the dispatch of police to a location within 100 feet of the workplace of a man whose DNA was later discovered in and on the victim. That man subsequently admitted to intercourse with the victim on the night she was killed. Independent triangulation of the DNA evidence and the 911trace evidence located someone with unique and intimate knowledge of the victim on the night she died. This was powerful corroboration of the reliability of the evidence, because the possibility of coincidence is highly unlikely: see U. (F.J.), at paras. 40, 42. We can also exclude the possibility of collusion or tainting because the respondent was not a suspect at the time, his identity was unknown, and neither the police nor Bell Canada had any idea of his connection to Ms. Werendowicz. [176] The respondents connection to the victim and his presence at Gate #6 is, in and of itself, corroborative of the reliability of the 911-trace evidence. Unlike the evidence relied upon by the Crown in Blackman, its corroborative character does not require an analysis of the evidence as a whole, nor does it predetermine the ultimate reliability of the evidence. As I will explain, the respondent

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would have an opportunity at trial to challenge both the 911-trace evidence and the evidence relied upon as corroborative. Trial Fairness [177] I return to the issue of trial fairness, most particularly whether there would be an adequate opportunity for the respondent to test the reliability of the evidence at trial. As Charron J. noted in Khelawon, at para. 3, trial fairness impacts not only the admissibility of the evidence but also the final question whether, in spite of its reliability, the evidence should be excluded because its prejudicial effect outweighs its probative value. [178] I consider the trial fairness issue separately, however, because if the respondent cannot fairly test the evidence, or point out potential weaknesses, there is a risk the jury would give it undue weight, particularly when coupled with the corroborative evidence. [179] It would be open to the respondent at trial to challenge both the reliability of the 911-trace evidence and the evidence of his presence in proximity to Gate #6, relied on by the Crown to corroborate that evidence. He would be able to cross-examine the experts concerning the reliability of the 911 system, and the police officers who responded to the 911 call on June 22, 1981, both of which he did on the voir dire. He would also be entitled, if he chose, to adduce evidence himself. This might include evidence from those who knew him to establish that it

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was not his voice on the 911 call. He might choose to testify that he did not make the call, as he did at his previous trials. [180] The respondent would therefore have a real opportunity to test the reliability of the 911-trace evidence at trial. I would not exclude the evidence on the basis of trial fairness. Probative Value and Prejudicial Effect [181] The final question is whether the evidence should be excluded because its probative value is outweighed by its prejudicial effect. [182] The evidence is highly probative. The jury could conclude the call was made by the killer and that the connection between the source of the call and the respondents workplace was not coincidental. The concern is not that the evidence could undermine the respondents defence. It is that in the face of this probative evidence, and the corroborative evidence, the jury would rush to judgment. [183] As I have noted, the issue intersects with trial fairness. The impact of the evidence can be addressed by cross-examination. It can also be addressed by appropriate instructions to the jury on the uses that may and may not be made of the evidence and the findings the jury must make before using the evidence.

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[184] In my view, in light of the opportunities for testing the evidence and the instructions the jury would receive in relation to the evidence, the prejudicial effect of the evidence would not outweigh its probative value. Conclusion on Hearsay [185] In summary, the application judge never subjected the 911-trace evidence to a principled analysis. His concerns about its potential ambiguity were speculative. His dismissal of the corroborative evidence of the respondents presence at Gate #6 as circular reasoning was, respectfully, in error. The narration/ambiguity danger was not sufficient to foreclose the reliability analysis and the remaining hearsay dangers were minimal. The circumstances in which the tracing occurred, the expert evidence concerning the reliability of the tracing process, and the corroborative evidence linking the respondent to the source of the call and to the victim, all served to confirm the reliability of the evidence. The respondent would have a fair opportunity to challenge its reliability in the presence of the jury. The prejudicial effect of the evidence did not outweigh its probative value. Under a principled analysis, the 911-trace evidence met the test for threshold reliability and was admissible. [186] I turn now to the application judges decision to stay the proceedings in light of this conclusion.

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B. The stay issue [187] A high degree of deference is owed to a judges discretionary decision to stay proceedings under s. 24(1) of the Charter: R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509. In the absence of an error of law, a reviewable error of fact, or a decision that is so clearly wrong as to amount to an injustice, an appellate court should not interfere: Babos, at para. 48; Bellusci, at paras. 17-19; R. v. M.T., 2013 ONCA 476, 299 C.C.C. (3d) 1, at para. 64. [188] Deference is particularly appropriate where, as here, the application judge had great familiarity with the case, having presided over two lengthy jury trials, and attendant pre-trial motions. He was uniquely positioned to undertake the requisite balancing exercise. [189] In seeking to set aside the stay, the Crown contends that the exclusion of the 911-trace evidence denied it a trial on the merits: R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 102. In answer, the respondent points to the Crowns failure to challenge the correctness of the 911-trace evidence exclusion ruling in the respondents appeal of his conviction to this court in 2008. He points out that in defence of the conviction, the Crown was entitled to raise errors of law that inured to his benefit, either in support of the decision below or on its position as to the appropriate remedy: R. v. Harvey (2001), 57 O.R. (3d) 295 (C.A.), at para. 34, affirmed 2002 SCC 80, [2002] 4 S.C.R. 311, referring to

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R. v. Keegstra, [1995] 2 S.C.R. 381, at para. 23. He submits that if, on that appeal, this court had agreed with the Crowns position that the 911-trace evidence was compelling evidence of the respondents guilt, it could have dismissed his appeal under the overwhelming evidence branch of the curative proviso in s. 686(1)(b)(iii) of the Code. [190] Accordingly, the respondent submits the Crown was obliged to raise any potentially dispositive issue on that appeal, so as to avoid an unnecessary new trial or to avoid re-litigating contentious issues at the re-trial. He also submits the Crowns failure to raise the issue belies the significance it now places on the evidence. [191] The Crown responds to this submission by reference to R. v. James, 2011 ONCA 839, 283 C.C.C. (3d) 212. In that case, James appealed his convictions for robbery and manslaughter on the ground the trial judge erred in admitting certain hearsay evidence and gave an erroneous instruction to the jury on identification. In response, the Crown attempted to invoke the proviso and in so doing made what Doherty J.A. referred to as a novel argument (at para. 55). The Crown submitted the trial judges evidentiary ruling on hearsay had excluded important evidence that was admissible and would have supported its case. If that evidence was added to the evidentiary mix, the Crown argued its case would have been overwhelming and the proviso should apply.

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[192] In rejecting this submission, Doherty J.A. stated, at paras. 56-57: The application of the proviso must be considered in the context of the evidence heard by the jury, not the evidence it might have heard had the trial judge made different rulings. To consider excluded evidence, even wrongly excluded evidence, in deciding whether the proviso should be applied, is to apply the proviso to a different case than the one heard by the jury. Because the evidence was excluded at trial, the appeal court has no way of knowing how the defence would have met that evidence and, consequently, no way of knowing how strong that evidence might have been. An appellant who has demonstrated an error in law and is otherwise entitled to a new trial should not be deprived of that new trial based on assumptions about the probative force of evidence he was never called upon to answer at trial. The excluded evidence can play no role in determining the application of the curative proviso to the legal errors made at trial. Where, however, the issue is not the application of the curative proviso, but whether a successful appellant is entitled to an acquittal or a new trial, the Crown may argue that probative evidence was improperly excluded in support of a submission that the court should direct a new trial and not enter an acquittal. Counsel for the appellant, quite properly, does not suggest that an acquittal would be an appropriate remedy here. The Crown can re-litigate the admissibility rulings made by the trial judge at the new trial: see R. v. Duhamel, [1984] 2 S.C.R. 555. [193] Although this courts decision in James came after the respondents 2008 appeal, in my view, the Crowns failure to raise the issue in response does not diminish the significance of the 911-trace evidence. Nor does it prevent the issue from being raised here. It is not suggested that the Crown has had any

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opportunity to challenge the exclusion of this evidence in the context of the two previous mistrials. [194] The Crown submits the application judge reversed the burden, which should have been on the respondent in applying for a stay, by requiring the Crown to demonstrate this was one of the very rare cases in which a fourth trial should be permitted. This language was a reference to the decision of the Manitoba Court of Appeal in Jack, in which Scott C.J.M. stated, at para. 11: In my opinion it would be a very rare case indeed where putting an accused in jeopardy with respect to a serious charge for the fourth time would not constitute a breach of s. 7 of the Charter, and an abuse of process sufficient to warrant a judicial stay of proceedings under s. 24(1) of the Charter. In a brief oral endorsement, the Supreme Court of Canada expressed full agreement with his reasons. [195] The respondent contends that in expressing its agreement, the Supreme Court endorsed the proposition that a fourth trial for a serious offence will generally be an abuse of process. He refers to decisions of this court in which the passage in Jack has been approved or applied: Hunter; R. v. Van, 2008 ONCA 383, 92 O.R. (3d) 462, revd on other grounds, 2009 SCC 22, [2009] 1 S.C.R. 716. See also L. (A.). [196] I do not find it necessary to resolve this issue, because highly probative and admissible evidence was excluded at the previous trials. As a result, the

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Crown did not have a full opportunity to put its case before the jury at any of the previous trials. Moreover, the application judges assumption that the evidence will be not be stronger at a fourth trial cannot stand. [197] In Babos, at para. 30, Moldaver J., writing for the majority, described a stay of proceedings as the most drastic remedy a criminal court can order. He added that in granting a stay, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court. [198] Here, a stay was sought, and granted, on the basis that the respondent had already been tried three times and a fourth trial would be an abuse of process. [199] This case falls, therefore, within the residual category, referred to in Babos, in which a stay is sought because the state conduct offends societys notions of fair play and decency and where it is alleged that proceeding with a trial in the face of that conduct would harm the integrity of the justice system (at para. 35). Moldaver J. described [r]epeatedly prosecuting an accused for the same offence after successive juries have been unable to reach a verdict as an example of a case in which the integrity of the justice system is implicated in the absence of state misconduct (at para. 37).

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[200] The test whether a stay should be granted, as stated in Babos, at para. 32, is: (1) There must be prejudice to the accuseds right to a fair trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; (2) There must be no alternative remedy capable of redressing the prejudice; and (3) Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest that society has in having a final decision on the merits. [Citations omitted.] [201] The Supreme Court confirmed in Babos that a stay of proceedings for abuse of process will only be granted in the clearest of cases (at paras. 31, 44). Moldaver J. noted that this requirement, coupled with the balancing of societal interests, will present an accused seeking a stay with an onerous burden ( at para. 44). The result, he said, is that cases in the residual category warranting a stay of proceedings will be exceptional and very rare (at para. 44, referring to Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at para. 91). [202] The comments in Jack that a fourth trial of a serious charge would be very rare can, in my view, be reconciled with these observations. Proceeding with a

Page: 76 fourth trial for murder may, in some cases perhaps many cases fall within the exceptional and very rare cases in which a stay is warranted. [203] In my view, however, this is not such a case. The decisive factors are the application judges conclusions that the Crown had full opportunities to convince the juries of the respondents guilt at the earlier trials and that the evidence at a fourth trial would not be materially different from the evidence at those trials. These fed his further conclusion that the Crowns case at a fourth trial would not be as strong as it was at the previous trials, due to inevitable attrition of witnesses and their memories. [204] These conclusions were premised on the assumption that the 911-trace evidence, excluded at the earlier trials, would not be admissible on a fourth trial. As I have found that evidence should have been admitted, the application judges decision on the stay was the product of an error of law. [205] Applying the Babos test, there is a risk of undermining the integrity of the justice system by prosecuting the respondent a fourth time and there is no alternative remedy to redress the prejudice to him. The question becomes one of balancing the interests in favour of granting a stay, including preserving the integrity of the justice system, against the societal interest in a final decision on the merits.

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[206] The result of the exclusion of the 911-trace evidence is that the Crown has never had an opportunity to try the respondent based on all the legally admissible evidence. Had the evidence been admitted, the Crowns case at trial would have been stronger. Not only would the evidence point towards the respondent as the 911 caller, it would point more powerfully away from the alternative suspect, who was working at another location when the call was made.7 [207] The communitys sense of fair play works both ways. As Watt J.A. observed in Spackman, at para. 102: Trial fairness is not the exclusive preserve of those charged with crime. A fair trial is a trial that appears fair, not only from the perspective of the accused, the person on trial, but also from the perspective of the community A fair trial is a trial that satisfies the public interest i n getting at the truth, but at the same time preserves basic procedural fairness for the accused. [Referring to R. v. Harrer, [1995] 3 S.C.R. 562, at para. 45, per McLachlin J.; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 22.] [208] Notwithstanding the challenges associated with conducting a trial after the passage of almost 35 years, there is a strong public interest in a trial on all the legally admissible evidence and this swings the balance against a stay. [209] Having regard to the other findings made by the application judge on the factors he identified, it is my view that the circumstances require that the stay be

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

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set aside and a fourth trial be held. If, at that trial, the record with respect to the 911-trace evidence is not materially different, that evidence will be admissible. If the evidentiary record is materially different, it will be up to the trial judge to determine its admissibility, in accordance with the principles set forth above. IV. DISPOSITION

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

Released: April 8, 2014 (A.H.) G.R. Strathy J.A. I agree Alexandra Hoy A.C.J.O. I agree E.E. Gillese J.A.