2017ONCA0290

COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Tsekouras, 2017 ONCA 290

DATE: 20170411
DOCKET: C60103
Strathy C.J.O., Weiler and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
John Tsekouras
Appellant
Joseph S. Wilkinson, for the appellant
Stephen Dawson, for the Crown
Heard: September 6-7, 2016
On appeal from the conviction entered on March 5, 2015 by Justice John deP.
Wright of the Superior Court of Justice, sitting without a jury, with reasons
reported at 2015 ONSC 1470.
Watt J.A.:
[1] Project Dolphin was in its final few days. But some unfinished business
remained. Searches. Seizures. Arrests. The dismantling of a drug trafficking
enterprise.
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[2] On takedown day investigators coordinated their activities. Searches,
seizures and arrests were to take place simultaneously.
[3] For some time, police had suspected John Tsekouras was the person in
charge of this organization. But their suspicions fell short of what was required to
arrest Tsekouras. So investigators watched John Tsekouras. Very closely. What
he did. Where he went. Whom he met. To whom he spoke.
[4] When John Tsekouras took some documents out of one vehicle and put
them into another, investigators changed their minds. No more surveillance. It
was time to make an arrest.
[5] John Tsekouras had his Blackberry in his hand. An officer approached
Tsekouras. Gun drawn, but pointed downward. Tsekouras took the battery out of
his Blackberry and threw the device when ordered to the ground by the officer.
[6] The reasons for the arrest are not entirely clear. Perhaps, it was for
attempting to obstruct justice. Or maybe it was for possession of the proceeds of
crime. What is clear is that John Tsekouras did not remain under arrest for long.
A senior officer arrived and directed that Tsekouras be released immediately and
unconditionally. And so John Tsekouras went on his way.
[7] Among the things taken from John Tsekouras incidental to his arrest were
two Blackberry devices. Neither the one he had thrown down, nor the other one
seized from his vehicle, were returned. Police told John Tsekouras that they
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wanted to search the Blackberry devices. And depending on what investigators
found during their search, they told Tsekouras, the charge on which he had been
arrested and released may be "revisited".
[8] A few months later, police did search the contents of the Blackberry
Tsekouras had thrown to the ground. What they found became a critical part of
the case against Tsekouras at his trial on several preliminary and substantive
drug offences. And the authority relied upon to harvest the contents of the
Blackberry became a central focus of the trial and the appeal to this court from
convictions that were entered at trial.
[9] These reasons explain why I would dismiss John Tsekouras' appeal
despite the investigative missteps made in the collection of this evidence
adduced at trial.
THE BACKGROUND FACTS
[10] The grounds of appeal advanced do not command protracted reference to
the evidence adduced at trial. However, what is required is a review of the
manner in which the evidentiary cornucopia located in the Blackberry was
collected by investigators.
Project Dolphin
[11] Project Dolphin was a joint forces investigation into drug trafficking in
Thunder Bay and elsewhere in Canada. The police services involved included
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the Royal Canadian Mounted Police (RCMP), the Ontario Provincial Police
(OPP), and the Thunder Bay Police Service (TBPS).
[12] The targets of Project Dolphin included John Tsekouras, Frank Muzzi and
Salvatore Larizza. The drugs involved were marijuana and cocaine. In the course
of the investigation, police also seized oxycodone. The RCMP was conducting a
joint proceeds of crime investigation.
[13] The principal transactions with which the investigators were concerned
were the planned purchase of two kilograms of cocaine by Tsekouras and Keith
Ritchie from a person known as "Penguin" and 18 pounds of marijuana and one
kilogram of cocaine left by Frank Muzzi in Salvatore Larizza's garage with
Larizza's agreement.
The Case for the Crown
[14] The case for the Crown at trial included evidence of:
i. messages found on Tsekouras' Blackberry seized incident to his
arrest and retained by police after his unconditional release
without formal charge;
ii. the hearsay statement of Salvatore Larizza admitted under the
principled exception to the hearsay rule after Larizza's death
prior to trial; and

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iii. the guilty plea and accompanying agreed statement of facts on
which it was based in the prosecution of Frank Muzzi.
Takedown Day
[15] The investigative plan for takedown day for Project Dolphin included the
execution of warranted searches, the seizures of controlled substances and
related paraphernalia and the arrests of some of the participants in the drug
trafficking enterprise.
[16] The investigative plan for takedown day for John Tsekouras consisted of
surveillance of Tsekouras and his family contemporaneously with searches of
several properties with which Tsekouras was associated. The simple fact was
that police lacked reasonable grounds to arrest Tsekouras, although they
suspected he was the head of the drug trafficking organization they were
investigating.
The Arrest of John Tsekouras
[17] When surveillance officers saw John Tsekouras remove a box of papers
from one parked vehicle and put it into another occupied by some of his family
members, they decided to stop him.
[18] A police officer approached Tsekouras on foot, his gun drawn but pointed
downward and at his side. Tsekouras had a Blackberry in his hand. As the officer
approached, he told Tsekouras to get down on the ground. Tsekouras took the
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battery out of his Blackberry and threw it on the ground. As the officer took
Tsekouras to the ground, Tsekouras threw his Blackberry on the ground.
[19] The officer arrested Tsekouras. Incidental to the arrest, officers seized the
Blackberry on the ground; a second Blackberry from Tsekouras' vehicle; and two
amounts of cash.
[20] A few moments later, one of the senior investigating officers arrived at the
scene of Tsekouras' arrest. He directed that Tsekouras be released
unconditionally. And this was done.
The Blackberry is Retained
[21] Despite Tsekouras' unconditional release, police kept the Blackberry
seized incident to his arrest. They also kept the second Blackberry seized on the
same basis from Tsekouras' vehicle.
[22] A police officer told Tsekouras that they (the police) would be keeping both
Blackberrys to examine them. If they found any evidence during their
examination, the officer told Tsekouras they (the police) would "revisit" the
obstruct justice charge.
The Initial Examination of the Blackberry
[23] An officer of the TBPS attempted to examine Tsekouras' Blackberry. The
device was locked and password protected. The officer lacked the capacity to
examine the Blackberry.

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[24] The Blackberry that was seized from Tsekouras vehicle was not password
protected. A review of the contents by TBPS revealed nothing relevant for the
purposes of the investigation. No further mention need be made of this phone.
The Request for Further Examination
[25] The password protected Blackberry seized from Tsekouras was one of
several electronic devices officers of TBPS had seized on takedown day. They
wanted these devices examined, their data harvested and an analysis
conducted. Since TBPS lacked the capacity to gain access to and analyze the
data on the locked devices, these devices were sent to the RCMP laboratory to
open the encryption and to recover the documents.
[26] The RCMP laboratory required completion of a form to accompany any
device sent to their lab for examination and analysis. Among other things, the
form required the submitting police agency to state the legal authority for the
examination and analysis sought. Search warrants accompanied every device
but one the Blackberry of John Tsekouras.
[27] The authority relied upon to permit the examination and analysis of
Tsekouras' Blackberry was a decision of a judge of the Superior Court of Justice.
This authority R. v. McTavish (8 December 2010), CR-09-00003591-00 (Ont.
S.C.J.) was said to permit examination and analysis of the contents of an
electronic device seized as incident to an arrest. On the Charter application to

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exclude the evidence, it was agreed that this decision did not authorize the
search.
[28] Over the next several months, the RCMP laboratory proceeded to decrypt
the device and harvest its contents as requested by TBPS.
The Larizza Defection
[29] Salvatore Larizza was in a tight spot. Project Dolphin investigators had
searched his garage. There, they found 18 pounds of marijuana and 1 kilogram
of cocaine. He was charged with several drug offences, but released from
custody. The conditions on which Larizza had been released included house
arrest, a term that chafed on him.
[30] Larizza along with his counsel approached Project Dolphin investigators.
Larizza had decided to cooperate with the investigators. About six months after
takedown day, he provided a KGB statement that implicated Muzzi in delivery of
the drugs found in his (Larizza's) garage. The delivery occurred the night before
takedown day.
[31] As a result of Larizza's statement, Frank Muzzi was arrested on several
charges arising out of the seizure made at Larizza's garage.
[32] The Crown consented to the variation Larizza requested in his release
terms after the KGB statement had been completed.

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The Data Return
[33] A month after Larizza's KGB statement, about seven months after
takedown day, TBPS received the data the RCMP had harvested from
Tsekouras' Blackberry. An officer, whose task it had been to prepare informations
to obtain (ITOs) for the search warrants for Project Dolphin, discovered that no
warrant had accompanied Tsekouras' Blackberry when it had been sent to the
RCMP lab.
[34] Analysis of the data sent to TBPS was suspended until a search warrant
could be obtained. The purpose of the warrant was to authorize a re-search of
the Blackberry and a second harvest of its data. But this could not be done
because of the effect of the first search on the Blackberry.
[35] TBPS continued their analysis of the original data from the Blackberry. Two
months later, they completed their task.
The Reports to a Justice
[36] About one month after the initial seizure of Tsekouras' Blackberry, an
officer from TBPS completed a Report to a Justice in Form 5.2 as required by s.
489.1 of the Criminal Code. In accordance with what was then the practice in
Thunder Bay, the officer put the report in the Court Services mail slot to be sent
to the offices of the justice of the peace for signature. About 90 days later, and
periodically thereafter, the officer sent applications for further detention as

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required by s. 490(2) of the Criminal Code. He forwarded these applications in
the same manner by leaving them in the Court Services mail slot for delivery to a
justice of the peace.
[37] The officer who completed the applications for further detention under s.
490(2) was unaware of the notice requirement in the section. No notice was
given to John Tsekouras on any of the three occasions on which the extensions
were sought. The officer was also unaware that a search warrant had been
issued later for Tsekouras' Blackberry.
[38] About 18 months later, investigators found out that 49 Reports to a Justice
required for Project Dolphin searches never reached a justice of the peace.
These reports were never signed.
The Arrest of John Tsekouras
[39] About ten months after takedown day, police arrested John Tsekouras on
several drug charges arising out of the Project Dolphin investigation.
Frank Muzzi Pleads Guilty
[40] Almost 18 months after takedown day, Frank Muzzi pleaded to four counts
on an indictment including conspiracy to traffic in cocaine and in marijuana. One
of the counts was in connection with the drugs he had left in Larizza's garage the
night before the takedown.
[41] The basis upon which Muzzi entered his guilty pleas included:
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i. an agreed statement of facts; and
ii. a portion of Larizza's KGB statement that Muzzi acknowledged
was correct.
[42] Frank Muzzi received an agreed-upon sentence. Charges against his
mother and sister were withdrawn. The Crown agreed Frank Muzzi would not be
called as a witness for the Crown at any co-conspirators' trial.
The Trial Proceedings
[43] At John Tsekouras' trial, the Crown proposed to tender evidence of the
results of the search of Tsekouras' Blackberry, of Larizza's KGB statement; and
of Muzzi's guilty plea and the statement of facts on which the guilty plea and
conviction were based. Each attracted objection from trial counsel (who is also
counsel on appeal) and was the subject of a pre-trial admissibility ruling.
[44] The trial judge made several rulings as each pre-trial application
concluded.
[45] He rejected the trial Crown's contention that Tsekouras had no reasonable
expectation of privacy in the contents of the Blackberry because he had thrown it
down, thus discarding it, immediately before or on arrest.
[46] The trial judge found the warrantless search of Tsekouras' Blackberry
infringed s. 8 of the Charter, but admitted the evidence obtained in the search
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under s. 24(2). He also admitted Larizza's KGB statement and Muzzi's guilty plea
and its factual underpinnings under the principled exception to the hearsay rule.
[47] John Tsekouras did not testify or call any defence evidence in response to
the case for the Crown.
THE GROUNDS OF APPEAL
[48] John Tsekouras ("the appellant") advances five grounds of appeal. Four
relate to evidentiary rulings made by the trial judge. The fifth challenges the
reasonableness of some of the convictions.
[49] The appellant says that the trial judge erred in admitting as evidence:
i. the contents extracted from the appellant's Blackberry seized
and examined without warrant;
ii. the hearsay statement of Sal Larizza;
iii. the statement of fact filed and relied upon in the guilty plea
proceedings of Frank Muzzi; and
iv. the hearsay statements of Larizza and Muzzi under the co-
conspirators' exception to the hearsay rule.
[50] The appellant also argues that the convictions entered on four counts of
preliminary and substantive crimes relating to cocaine are unreasonable.

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Ground #1: The Admissibility of the Blackberry Evidence
[51] For all practical purposes, this ground of appeal reduces to a claim that the
trial judge, having correctly found breaches of s. 8 of the Charter in the
warrantless search and wrongful detention of the appellant's Blackberry, erred in
failing to exclude the contents recovered from the Blackberry under s. 24(2).
[52] The circumstances in which the appellant's Blackberry was seized,
detained and its contents harvested have already been canvassed. No useful
purpose would be served by a further recital of them. However, to provide some
background for the arguments advanced, it is worthwhile to record the essential
features of the trial judge's s. 24(2) analysis before turning to the attacks
marshalled against them.
The Ruling of the Trial Judge
[53] The trial judge's analysis under s. 24(2) was premised on three discrete,
but related breaches of s. 8 of the Charter:
i. the warrantless search of the Blackberry;
ii. the unauthorized seizure of the contents of the Blackberry; and
iii. the unlawful detention of the Blackberry in breach of ss. 489.1
and 490 of the Criminal Code.

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[54] In his admissibility analysis under s. 24(2), the trial judge considered the
three lines of inquiry mandated by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R.
353. He characterized the first line of inquiry the seriousness of the breach as
a potential "tiebreaker in what is essentially a contest between [the second and
third lines of inquiry]".
[55] In his assessment of the seriousness of the Charter infringement, the trial
judge found that investigators did not ignore the necessity for warrants in this
major crime investigation. They made a mistake, however, in connection with the
appellant's Blackberry and, on realizing their mistake, immediately sought and
obtained a warrant. Similarly, the failure to obtain orders under ss. 489.1 and 490
was not the fault of Project Dolphin investigators, rather it was "ultimately the
fault of another branch of the justice system". The failure to obtain the orders
arose from carelessness, not bad faith or recklessness.
[56] The trial judge acknowledged that the impact of the breach on the Charter-
protected interests of the appellant was significant in light of the enhanced
privacy interest associated with such devices. That said, the trial judge concluded
that the impact of the breach on the Charter-protected interests of the appellant
was mitigated by several factors:
i. the uncertain state of the law about the need for a warrant to
search cellphones at the time the search was conducted;

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ii. the fact that the appellant was advised when released
unconditionally that his phone might be searched but took no
steps to retrieve it;
iii. the fact that a warrant was subsequently obtained, which
indicated not only that it would have been granted had it been
sought earlier, but also that it belied any deliberate, reckless or
negligent conduct on behalf of anyone to violate the Charter; and
iv. the fact that the officer who sent the Blackberry to the RCMP to
extract the data made reasonable inquiries about search
authority and was provided with a response that was wrong
through carelessness rather than unacceptable negligence or
recklessness.
[57] The trial judge concluded that the third line of inquiry under Grant favoured
admission of the evidence which consisted of the actual messages sent and
received on the appellant's Blackberry. This was real evidence of a high degree
of reliability, which was crucial to the case for the Crown.
[58] In the final analysis, the trial judge was satisfied that the Grant lines of
inquiry favoured admissibility of the messages recovered from the appellant's
Blackberry.
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The Arguments on Appeal
[59] The appellant takes no issue with the findings of constitutional infringement
made by the trial judge. A warrantless search of the Blackberry and seizure of its
data and the unlawful detention of the Blackberry, which amounted to a further
breach of s. 8. But, the appellant says, the trial judge erred in his section 24(2)
analysis. Properly conducted, that analysis would have resulted in exclusion of
the Blackberry evidence, the result which should follow here.
[60] The appellant says that the trial judge erred in his overall approach to s.
24(2). The first line of inquiry cannot be fairly described as a "tiebreaker", the role
assigned to it by the trial judge, between the second and third lines of inquiry.
The first two lines of inquiry favour exclusion; the third, admission of the
evidence. But all are of equal importance and are to be balanced together. What
is more, the trial judge failed to properly characterize the seriousness of the
Charter violation and considered factors relevant to the seriousness of the
Charter-infringing state conduct when assessing the impact of the breach on the
Charter-protected interests of the appellant.
[61] The appellant also alleges the trial judge made several specific errors in
his s. 24(2) analysis. He erred in characterizing the Blackberry evidence as
"crucial" for the Crown's case. The Crown had available to it viva voce evidence
from two co-conspirators, one awaiting trial in separate proceedings (Ritchie) and
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another (Muzzi) already convicted and sentenced on the basis of a joint
submission. In addition, the trial judge was wrong in minimizing the seriousness
of the Charter breach on the basis that the law on cellphone searches was in a
state of flux at the time the Blackberry was searched. Investigators knew that a
search warrant was required. A warrant accompanied every device except the
appellant's Blackberry. Their reliance on R. v. McTavish was unreasonable and
reflected bad faith in the face of obvious knowledge of the need for a warrant.
The trial judge committed a further error in finding comfort from the fact that there
were grounds to get a warrant. The existence of grounds while relevant to the
seriousness of the state conduct does not affect the significance of the invasion
of the appellants privacy rights.
[62] In connection with the reporting requirements of s. 489.1 and those of s.
490 concerning retention of seized items, the appellant says that the trial judge
made further errors:
i. in finding good faith in attempted compliance with ss. 489.1 and
490 by simply leaving the Reports to a Justice in a Court
Services mail slot and failing to follow up about receipt;
ii. in failing to find that non-compliance with the notice
requirements of s. 490(2) was based on plain ignorance of the

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statutory requirements, or at best, unacceptable negligence;
and
iii. in reversing the burden imposed by s. 490(2) by considering as
mitigation of the failure to give notice, the appellant's failure to
seek the return of his Blackberry.
[63] According to the appellant, a proper application of the lines of inquiry
mandated by Grant would yield a result contrary to the ruling admitting the
evidence made at trial.
[64] The violations were serious. The arrest was arbitrary, thus could not
ground a lawful seizure of the Blackberry incident to arrest, much less a
subsequent search, intentionally done without a warrant. The search could not
comply with the requirements set out by the Supreme Court of Canada for
searches of cell phones incident to arrest in R. v. Fearon, 2014 SCC 77, [2014] 3
S.C.R. 621.
[65] The appellant says the unconstitutional conduct of the authorities had a
significant impact on his Charter-protected interests. He had a high expectation
of privacy in the information contained in the Blackberry, an interest that
continued without proper judicial supervision for a period of 10 months. This
detention was the result of serious systemic failures on the part of TBPS
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investigators, failures that were not mitigated by the belated attempt to regularize
unconstitutional conduct by the subsequent issue of a search warrant.
[66] Exclusion of this evidence, the appellant continues, requires that acquittals
be substituted for the convictions entered at trial. Without the evidence provided
by search of the Blackberry, the convictions would be unreasonable. To order a
new trial would permit the Crown to reverse a tactical decision it made at the first
trial and to attempt to establish guilt on an evidentiary basis available but not
pursued at first instance. The prevailing jurisprudence does not permit the Crown
to do so.
[67] The respondent does not take issue with the findings of constitutional
infringement made by the trial judge, but resists any suggestion of legal error or
palpable or overriding errors of fact in the trial judge's s. 24(2) analysis, or in his
conclusion to admit the evidence harvested from the appellant's Blackberry.
[68] At the outset, the respondent reminds us that we must begin from a stance
of deference to the findings of fact made by the trial judge, absent palpable and
overriding error in connection with those findings. We should approach the
appellant's complaints with caution because, in the main, they are grounded on a
set of facts that the appellant wishes the trial judge had found, rather than those
that he did find.

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[69] The respondent says that the trial judge did not treat any single factor or
line of inquiry under Grant as a first among equals or as dispositive of the issue
of admissibility. What is more, no overarching rule mandates how to balance the
lines of inquiry or Grant factors. The trial judge's reference to the absence of an
automatic rule of exclusion upon proof of constitutional infringement reflects
existing jurisprudence and does not constitute error. His misplace of the
seriousness of police misconduct when considering the impact of that
misconduct on the Charter-protected interests of the appellant is at best a venial
error that would not affect the ultimate conclusion.
[70] According to the respondent, the trial judge's characterization of the law
relating to the search of cellphones as uncertain was accurate. At the time of
trial, neither this court nor the Supreme Court of Canada had issued any
definitive pronouncement describing the legal authority required to search a
cellphone or similar electronic device. It follows, the respondent continues, that
the failure to obtain a warrant could properly be attributed to legal uncertainty,
rather than an intentional, reckless or negligent disregard for the appellant's
Charter rights.
[71] The respondent submits that the existence of grounds to obtain a search
warrant, as demonstrated by the warrant subsequently issued, was properly
considered a factor that mitigated the seriousness of the police conduct in this
case.
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[72] As for the breaches of ss. 489.1 and 490, the respondent takes issue with
the appellant's submission that the trial judge imposed an obligation on the
appellant to apply for the return of his Blackberry. Fairly read, the reasons of the
trial judge do not support the appellant's claim. Rather, his reference to the
appellant not seeking the return of his Blackberry was just one factor in the
totality of the circumstances that the trial judge considered. The trial judge
properly characterized the nature of the breach and its impact on the admissibility
determination.
[73] The respondent contends that the trial judge properly described the
evidence from the Blackberry as "crucial" to the case for the Crown. It was not
rendered less crucial because of the existence of compellable co-conspirators.
The problems associated with calling such witnesses are notorious.
[74] In the end, the respondent says, the trial judge got it right. This evidence
was properly admitted at trial.
The Governing Principles
[75] Section 24(2) of the Charter is an admissibility rule. It determines whether
evidence obtained in a constitutionally impermissible manner will make its way
into a criminal trial for the use of the trier of fact or be denied entry. The section
not only recognizes that the admission of constitutionally tainted evidence and its
use to demonstrate guilt may bring the administration of justice into disrepute, but
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also that exclusion of the evidence can equally bring the administration of justice
into disrepute: R. v. McGuffie, 2016 ONCA 365, 336 C.C.C. (3d) 486, at para. 60.
[76] We determine the admissibility of constitutionally tainted evidence under s.
24(2) by considering all the circumstances and pursuing three lines of inquiry.
We examine:
the seriousness of the Charter-infringing state conduct;
the impact of the breach on the Charter-protected interests of the
accused; and
society's interest in an adjudication on the merits.
See, Grant, at paras. 71-86.
[77] In this case, the parties occupy common ground about the fact of
constitutional infringement and that evidence harvested from the appellant's
Blackberry was obtained in a constitutionally impermissible manner. But they part
company on the seriousness of the Charter-infringing state conduct; the impact
of that conduct on the appellant's Charter-protected interests; and on the result
that should follow from the pursuit of those lines of inquiry in this case.
[78] The three lines of inquiry to be followed under Grant entail not only findings
of fact, but also the weighing of various interests frequently at odds with one
another: McGuffie, at para. 64. The trial judge's role in the s. 24(2) application
made at trial was to balance the assessments under each of the three Grant lines
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of inquiry to determine whether, considering all the circumstances, admission of
the evidence would bring the administration of justice into disrepute: Grant, at
para. 71.
[79] The trial judge found two infringements of s. 8 of the Charter, one of which
yielded evidence that the Crown tendered for admission at trial. The
infringements were:
i. the non-warranted search of the appellant's Blackberry and
harvesting of its contents for use as evidence; and
ii. the detention of the Blackberry without the supervision required
under s. 489.1 and notice to the appellant under s. 490(2).
[80] Before turning to the principles that govern the Grant lines of inquiry and
the standard of review that we are to apply when invited to scrutinize a trial
judge's application of them, it is worthwhile to begin with a brief examination of
the authority to conduct a search of a Blackberry or similar electronic device and
the obligations of seizing authorities to ensure post-seizure supervision of
detained items.
The Authority to Search the Blackberry
[81] I discuss first, the authority to search a Blackberry or similar device seized
incident to arrest.
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[82] The appellant's initial arrest and the seizure of his Blackberry incident to
arrest took place in 2011.The subsequent extraction of its data took place in
2011 and 2012. The trial judge's s. 24(2) ruling was released on October 20,
2014, nearly two months before the Supreme Court of Canada released its
decision in Fearon about the availability of the power to search incident to arrest
as an authority to permit the search of cellphones and similar devices taken from
a suspect.
[83] Several points of significance to the trial judge's determination of the
seriousness of the Charter-infringing state conduct and its impact on the
appellant's Charter-protected interests emerge from the decision in Fearon.
[84] First, the Fearon court pointed out that in 2014 Canadian courts had not
provided a consistent response to the question of whether the power of search
incident to arrest permitted the search of cellphones and similar devices found on
the suspect. At least four approaches had emerged: Fearon, at para. 2. If the law
lacked consistency in 2014, it is a reasonable inference that it was equally
unsettled, if not more so, in 2011.
[85] Second, a cellphone may be searched incident to arrest, provided what is
searched and how the search is conducted are strictly incidental to the arrest and
the police keep detailed notes of what has been searched and why: Fearon, at
para. 4.
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[86] Third, the power to search incident to arrest is a focused power assigned
to police so that they can pursue their investigations promptly upon arrest. But
the authority is not without its limits. The search must be truly incidental to the
arrest, that is to say, exercised in the pursuit of a valid purpose related to the
proper administration of justice: Fearon, at paras. 16 and 21.
[87] Fourth, a search is properly incidental to arrest when the police attempt to
achieve some valid purpose connected to the arrest, such as protecting evidence
from destruction by the arrested person or others, or discovering evidence. If the
purpose of the search is the discovery of evidence, there must be some
reasonable prospect of finding evidence of the offence for which the accused is
being arrested: Fearon, at para. 22; R. v. Caslake, [1998] 1 S.C.R. 51, at paras.
19-25. What matters is that there be a link between the location and purpose of
the search and the grounds for the arrest: Fearon, at para. 25; R. v. Nolet, 2010
SCC 24, [2010] 1 S.C.R. 851, at para. 49.
[88] The Fearon court recognized that some modification of the common law
search incident to arrest power was necessary when the object to be searched
was a cellphone or similar device. After all, searches of these devices have the
potential to be a much more significant invasion of privacy than the typical search
incident to arrest of pockets, purses, briefcases and motor vehicles: Fearon, at
para. 58. Something more than the requirements of a lawful arrest and a search
that is at once truly incidental to the arrest and reasonably conducted is essential
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to further protect a suspect against the risk of wholesale invasion of privacy:
Fearon, at para. 58.
[89] The Fearon court made it clear that nothing short of strict adherence to the
requirement that a search incident to arrest be truly incidental to the arrest would
be tolerated where the object to be searched was a cellphone or similar device.
The searches must be done promptly to effectively serve their purpose, such as
the discovery of evidence: Fearon, at para. 75. To give effect to this approach,
the court modified the general rules applicable to searches incident to arrest in
three ways.
[90] First, the scope of the search. The scope of the search of a cellphone or
similar device incident to arrest must be tailored to the purpose for which it may
lawfully be conducted. Not only the nature, but also the extent of the search
performed on the cellphone or similar device must be truly incidental to the
particular arrest for the particular offence. And so it is, at least as a general rule,
that only recently sent or drafted emails, texts, photos and the call log may be
examined. The reason is simple: only those sorts of items will have the
necessary degree of connectedness to the purposes for which prompt
examination of the device is authorized: Fearon, at para. 76. Investigators must
be able to explain, within the limited purposes of search incident to arrest or with
reference to some other valid purpose, what they searched and why they did so:
Caslake, at para. 25.

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[91] From this modification of the general rule relating to searches incident to
arrest, it necessarily follows that this search authority is not a blank cheque for
investigators to forage in the device unbounded. For example, to search or
download its entire contents: Fearon, at para. 78.
[92] Second, searches to discover evidence. Cellphone searches incident to
arrest are not routinely permitted simply for the purpose of discovering additional
evidence. A cellphone or similar device search incident to arrest for the purpose
of discovering evidence is only a valid law enforcement objective when the
investigation will be stymied or significantly hampered without the ability to
search the device incident to arrest. Investigators must be able to explain why it
was not practical, in all the circumstances of the investigation, to postpone the
search until they could obtain a warrant: Fearon, at para. 80.
[93] Third, a record of the search. Officers executing the search must make
detailed notes of what they have examined on the device and how it was
searched. The applications searched, the extent and time of the search. Its
purpose and duration. See, Fearon, at para. 82.
[94] From Fearon we also learn that police are not entitled to navigate through
unsettled areas of the law by following the least burdensome route. As a general
rule, faced with genuine uncertainty, police should err on the side of caution by
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settling on a course of action that is more, rather than less respectful of the
accused's privacy rights: Fearon, at para. 94.
Post-Seizure Supervision
[95] Section 489.1(1) applies to seizures made by peace officers as a result of
searches incident to arrest: R. v. Backhouse (2005), 194 C.C.C. (3d) 1 (Ont.
C.A.), at paras. 112-113. Where the thing seized is not being returned to the
person lawfully entitled to possess it, s. 489.1(1)(b)(ii) requires the seizing officer,
as soon as it is practicable to do so, to report to a justice that she or he has
seized something and is detaining it to be dealt with by the justice under s.
490(1).
[96] The Report to a Justice must be in a statutory form Form 5.2. This form
must describe the authority under which the seizure was made; the thing that
was seized; and where, how or where applicable by whom it is being detained.
The officer who files the report must date and sign it.
[97] The reporting requirement of s. 489.1(1)(b)(ii) provides a link to s. 490(1)
and ensures long-term post-seizure supervision of the things seized by a judicial
officer: R. v. Garcia-Machado, 2015 ONCA 569, 327 C.C.C. (3d) 215, at paras.
15-16; Backhouse, at para. 112.
[98] Failure to file a Report to a Justice in Form 5.2 means that no post-seizure
supervision of the thing seized will take place: Garcia-Machado, at para. 16. But
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failure to file a Report to a Justice as soon as practicable after a thing has been
seized also has a constitutional dimension: the continued detention constitutes a
breach of s. 8 of the Charter: Garcia-Machado, at paras. 44-48.
[99] Neither section 489.1 nor Form 5.2 has anything to say about how the
report is to be provided to a justice. The Report requires the signature of the
peace officer who submits it, but does not require or provide space for a justice to
sign the report to acknowledge its receipt, endorse a disposition or advise the
submitting officer of either event.
[100] Section 490 governs extended detention of seized items. Section 490(2)
requires notice to the person from whom a thing has been seized if the thing has
been detained more than three months from the date of seizure. Neither the
section nor any other Code provision prescribes a form for the notice, although s.
490(2)(a) describes the procedure as a "summary application". But one thing is
clear: while the provision provides the opportunity, no obligation is imposed upon
the person from whom the thing was seized to take any steps for its recovery.
[101] In Garcia-Machado, this court left for another day whether any breach of s.
490, even one that had no real impact on the judicial oversight contemplated by
the provision, would amount to a breach of s. 8 of the Charter: Garcia-Machado,
at para. 55.
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The Grant Lines of Inquiry
[102] Section 24(2) of the Charter requires that the admissibility of
constitutionally-tainted evidence be determined on the basis of all the
circumstances. The test, broad and imprecise (Grant, at para. 60), requires a trial
judge to assess and balance the effect of admitting the evidence on societal
confidence in the justice system. The focus of s. 24(2) is long-term, prospective
and societal: Grant, at paras. 67-71.
[103] The admissibility determination under s. 24(2) involves a balancing of
assessments under each of the three lines of inquiry:
i. the seriousness of the Charter-infringing state conduct;
ii. the impact of the breach on the Charter-protected interests of the
accused; and
iii. society's interest in the adjudication of the case on its merits.
See, Grant, at para. 71.
[104] The first two inquiries operate in tandem. Both pull toward exclusion of
constitutionally-tainted evidence. When the state's Charter-infringing conduct
becomes more serious and the impact of it on the Charter-protected interests of
the accused becomes greater, the synergistic effect of their combination
strengthens the pull for and towards exclusion: McGuffie, at para. 62.
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[105] The third line of inquiry society's interest in the adjudication of the merits
is contraindicative pulls towards the inclusion or admission of the evidence.
This is a pull that reaches its zenith when the evidence tendered for admission is
at once reliable and crucial to the case for the Crown: McGuffie, at para. 62. See
also, R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34.
[106] These lines of inquiry under Grant involve fact-finding and the assignment
of weight to various interests often at odds with each other. There is no
overarching principle that mandates how this balance is to be achieved: Grant, at
para. 86; R. v. Patterson, 2017 SCC 15, at para. 54; R. v. Ct, 2011 SCC 46,
[2011] 3 S.C.R. 215, at para. 48; R. v. Manchulenko, 2013 ONCA 543, 301
C.C.C. (3d) 182, at paras. 89-93.
[107] A trial judge's decision to admit or exclude evidence obtained in a
constitutionally flawed manner is entitled to deference on appeal, absent an error
in principle, a palpable and overriding error of fact or a determination that is
unreasonable: McGuffie, at para. 64; Grant, at paras. 86, 127; R. v. Cole, 2012
SCC 53, [2012] 3 S.C.R. 34, at para. 82.
[108] The first line of inquiry under Grant requires a trial judge to evaluate the
seriousness of the Charter-infringing state conduct. This conduct will vary in its
seriousness, from inadvertent or minor, on the one hand, to wilful or reckless, on

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the other. The same may be said about the effect of admitting the evidence on
the repute of the administration of justice: Grant, at para. 74.
[109] Various factors may attenuate or exacerbate the seriousness of the
Charter-infringing state conduct. Extenuating factors, such as the need to prevent
the disappearance of evidence, or good faith on the part of investigators, may
attenuate the seriousness of police conduct that results in a Charter breach. On
the other hand, no rewards are given for ignorance of Charter standards.
Negligence or wilful blindness is not the equivalent of good faith: Grant, at para.
75. Nor can good faith be based on an unreasonable error or ignorance about
the officers scope of authority: R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631,
at para. 59; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 55. The more
deliberate the conduct of the police in breach of the Charter, the more likely this
line of inquiry will favour exclusion: Grant, at para. 75.
[110] The second line of inquiry requires an examination of the extent to which
the Charter breach actually interfered with or undermined the interests protected
by the right infringed. Again here there is a spectrum: fleeting and technical to
profoundly intrusive. The more serious the impact, the greater the risk that
admission of the evidence will bring the administration of justice into disrepute by
signalling to the public that the high-sounding nature of the rights is belied by
their feeble evidentiary impact in proceedings against the person whose rights
have been trampled: Grant, at para. 76.

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[111] To determine the seriousness of the infringement under this line of inquiry,
a court must look to the interests engaged by the right infringed and examine the
extent to which the violation actually impacted on those interests: Grant, at para.
77. An unreasonable search that intrudes upon an area in which an individual
reasonably enjoys a high expectation of privacy or that demeans a person's
dignity is more seriousness than one that does not: Grant, at para. 78.
[112] In assessing the actual impact of a breach on a Charter-protected interest
of an accused, discoverability retains a useful role. The more likely that the
evidence would have been obtained without the Charter-infringing state conduct,
the lesser may be the impact of that Charter-infringing conduct on the underlying
interests protected by the Charter right. The converse is also true: Grant, at para.
122. See also, Cole, at paras. 93 and 97. Of course discoverability is a double
edged sword. It may signal that the breach of the accuseds right was less
serious. But it also renders the state conduct more egregious as the evidence
was discoverable without breaching the accuseds Charter rights: R. v. Bains,
2014 BCCA 43, 306 C.C.C. (3d) 222, at para. 51; Ct, 2011 SCC 46, [2011]
S.C.R. 215, at paras. 70-72.
[113] A final point concerns the evidentiary underpinnings for circumstances said
to mitigate the seriousness of the Charter-infringing state conduct or its impact on
the Charter-protected interests of the accused. These factual findings of

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mitigation must be soundly grounded in the evidence, not based on speculation:
R. v. Pino, 2016 ONCA 389, 337 C.C.C. (3d) 402, at paras. 95-98.
The Principles Applied
[114] As I will explain, I would not give effect to this ground of appeal. In my
view, the trial judge did not err in his overall approach to the admissibility issue
under s. 24(2) or in connection with the specific flaws identified by the appellant.
[115] At the outset, it is essential to keep in mind that the admissibility inquiry in
which the trial judge engaged under s. 24(2) of the Charter includes not only
findings of fact, but also the weighing of various interests frequently at odds with
one another. These findings of fact, assessments of competing interests and
characterizations of the nature and extent of any breach are entitled to deference
absent palpable and overriding errors of fact, errors of law or principle or plainly
unreasonable conclusions.
[116] Second, while it was necessary for the trial judge to consider the three
lines of inquiry demanded by Grant, no overarching principle dictates the manner
or order in which these lines of inquiry are to be considered. Further, the trial
judge's ultimate assessment need not be mathematically precise. The
overarching principle is that the trial judge must take into account all the
circumstances. This trial judge did that.

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[117] Third, I do not read the trial judge's observation about the first line of
inquiry being a "tie breaker" as reflecting error in assigning that line of inquiry a
place of superordinance in the Grant analysis. Read in its appropriate context,
the trial judge was simply pointing out that when one factor favours exclusion
(line of inquiry #2) and another admission (line of inquiry #3), the outcome of the
remaining line of inquiry is apt (although not in every circumstance) to dictate the
ultimate result of an analysis of an issue that is to be decided on a basis of
probabilities.
[118] Fourth, the trial judge did not err in considering the uncertain state of the
law as a relevant factor in his s. 24(2) analysis. Recall that in 2014 the Supreme
Court of Canada described the inconsistencies among Canadian courts about
whether a search of a cellphone was permitted as part of a search incident to
arrest, or whether some further authority, like a search warrant, was required. In
such a state of uncertainty, it scarcely follows that it was unreasonable or
indicative of bad faith for investigators to rely on a judicial precedent said to
support such a search.
[119] Further, it was not error for the trial judge to conclude from the fact that a
search warrant was later obtained that had one been sought immediately after
seizure of the Blackberry, it would likely have been granted, the contents
harvested and evidence obtained. Discoverability has a place in the Grant

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analysis. That the evidence was discovered without a warrant was not the
product of deliberate Charter-infringing state conduct.
[120] The trial judge also found an infringement of s. 8 of the Charter because
police had failed to file any Report to a Justice in Form 5.2 and failed to notify the
appellant of their summary application under s. 490.
[121] In this case, unlike in Garcia-Machado, the police did complete on several
occasions a Report to a Justice. In accordance with what was then the practice,
they left the reports for delivery to a justice of the peace. Delivery never
happened, but not for dint of effort. This case is different from Garcia-Machado,
which was not available for the trial judge to consider.
Ground #2: The Hearsay Statement of Salvatore Larizza
[122] The second ground of appeal challenges the decision of the trial judge to
admit as evidence a sworn videotaped statement of Sal Larizza, a former
accused who had been separately charged but died before trial.
[123] A brief description of the background, the circumstances under which the
statement came to be taken and the ruling of the trial judge for admitting it as
evidence will serve as a useful framework for the discussion that follows.
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The Essential Background
[124] On takedown day, police executed a search warrant at Sal Larizza's home.
In a box in his garage, officers found 1 kilogram of cocaine and 18 pounds of
marijuana. Police suspected, but could not prove, that the drugs had been
stashed there by Muzzi and Ritchie. Larizza was arrested. Neither Muzzi nor
Ritchie were charged.
[125] Sal Larizza remained in custody for about a week after his arrest until he
was released on bail. The terms of his release required him to live at his sister's
home where he was to occupy a single room together with his young daughter.
He was also subject to house arrest.
[126] A few days after his arrest, Sal Larizza was interviewed by police. The
interview was audio and videotaped. Larizza denied knowing about how the
drugs came to be found in his garage at home. He said that his home was not a
stash house. He claimed not to know Muzzi well.
[127] There was no formal motion to admit Larizza's post-arrest statement on the
voir dire to determine the admissibility of his later KGB statement. In the interests
of trial fairness, the trial judge admitted the earlier statement. It was relevant to
both threshold and ultimate reliability.

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The KGB Statement
[128] About three months after his arrest, Sal Larizza asked the Crown to
consent to variations in his judicial interim release order. Larizza wanted a
deletion of the house arrest term and a change in the residence condition.
Discussions took place between Larizza, his lawyer and the lead investigator
about Larizza providing a statement explaining how the marijuana and cocaine
got into his garage where they were found on takedown day.
[129] Sal Larizza agreed to provide a statement to police.
[130] Larizza's statement was audio and video recorded. It was given under
oath. Larizza was warned about the consequences of making a false statement.
He was told that the statement would be disclosed to those facing trial. The
statement lasted 1 hour and 20 minutes.
[131] In his KGB statement, Sal Larizza admitted that he had provided a stash
house for Muzzi and another man. Both had a key to his (Larizza's) house and
could come and go as they pleased. Muzzi and another man showed up in
Muzzi's truck the evening before takedown day. They asked whether they could
store some marijuana in Larizza's garage overnight. Muzzi promised he would
remove the marijuana early the next morning.

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[132] Sal Larizza denied knowledge of any cocaine being part of the delivery the
night prior to takedown day. Police noticed indicia of a cocaine-cutting operation
in Larizza's home.
The Death of Sal Larizza
[133] Sal Larizza died prior to trial. Somebody killed him in his own home.
[134] The case for admissibility of Larizza's KGB statement was advanced under
the principled exception to the hearsay rule.
[135] Necessity was uncontroversial. Larizza was dead.
[136] The trial judge considered the cumulative effect of several factors in
concluding that threshold reliability had been established:
i. the statement was audio and video recorded;
ii. the statement was under oath;
iii. Larizza was warned about the consequences of providing false
information;
iv. the events described in the statement were within Larizza's direct
knowledge;
v. the narrative provided was in Larizza's own words, not in
response to leading or suggestive questioning;

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vi. the initiative for the statement originated with Larizza, not the
police or the Crown;
vii. Larizza had legal advice before making the statement;
viii. the statement was confirmed by real evidence in some of its
material aspects;
ix. the statement was strikingly similar in content to what Muzzi
admitted to be his involvement when he pleaded guilty to various
charges;
x. Larizza repeated crucial information a number of times; and
xi. What Larizza appeared to regard as his interest in co-operating
with the authorities.
[137] The trial judge also considered Larizzas previous statement to the police
as a prior inconsistent statement.
[138] The trial judge admitted Larizza's KGB statement. It does not appear that
he was asked to exclude it on the basis that its prejudicial effect exceeded its
probative value.1
1
While a trial judge is nevertheless obliged to balance whether the probative effect of the statement
outweighs its prejudicial value, here, it was obvious that he did.
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[139] The appellant contests the trial judge's admissibility ruling on two grounds.
He says that the trial judge did not provide adequate reasons for his decision,
thus rendering it impervious to appellate review. He also argues that what the
trial judge did say reveals that he considered irrelevant factors and failed to
consider relevant factors in concluding that the requirement of threshold reliability
had been met.
[140] On the inadequacy of reasons, the appellant says that the trial judge
devoted the majority of his reasons to a rote repetition of the governing legal
principles, but offered no real insight into why he found threshold reliability
established and the statement admissible. The most important consideration
here was the inability of the appellant to cross-examine the declarant. Yet the
trial judge failed to consider whether or how the circumstances in which the
statement was made could and did function as an adequate substitute or proxy
for the inability to cross-examine.
[141] The appellant submits that in reaching his conclusion on reliability, the trial
judge failed to consider that Larizza's motive in providing the statement was to
obtain a significant bail variation and that the KGB statement was fundamentally
at odds with his post-arrest statement given five months earlier in which he
claimed no knowledge of events he described in much detail later.

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[142] In addition to his failure to consider relevant factors, the appellant
continues, the trial judge assigned a place in his analysis to factors of which no
account should have been taken. That Larizza took the initiative, consulted a
lawyer and repeated crucial information several times. And that the statement
was strikingly similar to what Muzzi admitted on his guilty plea. The trial judge
also failed to recognize the double hearsay aspect of the statement when Larizza
repeated what he claimed Muzzi said when he (Muzzi) had asked to store the
drugs in Larizza's garage.
[143] The respondent supports the admissibility ruling of the trial judge. The trial
judge's reasons are adequate to permit meaningful appellate review. They reveal
no consideration of irrelevant factors or failure to consider relevant factors. The
case for admissibility was overwhelming.
[144] The respondent reminds us that in considering this alleged error, we are to
begin from a stance of deference, absent an error in principle or in law, a
palpable and overriding error of fact or a plainly unreasonable conclusion.
Deference should not be shunted aside here.
[145] The respondent says that the trial judge's ruling reflects governing
principles. Inability to cross-examine a hearsay declarant is not dispositive of an
application to admit a hearsay statement. This inability may be overcome by
circumstantial guarantees of trustworthiness arising out of the circumstances in

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which the statement came about. In this case, the trial judge took into account
relevant factors, including that essential parts of Larizza's narrative were
confirmed by other evidence, such as Muzzi's guilty plea. He did not consider
irrelevant factors, at least none that marred the essential features of his analysis
that provided an appropriate foundation for meaningful appellate review.
[146] At the outset, factual findings that underpin a finding of admissibility are
entitled to deference absent palpable and overriding error: R. v. Youvarajah,
2013 SCC 41, [2013] 2 S.C.R. 720, at para. 31; R. v. Chretien, 2014 ONCA 403,
309 C.C.C. (3d) 418, at para. 44.
[147] The central underlying concern with the admission of hearsay evidence is
the inability of the party opposite to cross-examine the declarant on the truth and
accuracy of the reported statement, to test his or her perception, memory,
narration and sincerity:, at paras. 18-19; R. v. Khelawon, 2006 SCC 57, [2006] 2
S.C.R. 787, at para. 2.
[148] When hearsay evidence is tendered for admission under the principled
exception to the hearsay rule and no issue arises about the necessity
requirement because of the death of the declarant, the task of the trial judge is to
determine whether the reliability requirement has been met. Reliability, the
current equivalent of Wigmore's circumstantial guarantee of trustworthiness" or

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probability of trustworthiness, operates as a substitute or surrogate for the more
traditional mechanism for testing reliability cross-examination. Reliability
intervenes to ensure that only hearsay statements worthy of consideration by a
trier of fact get before it.
[149] It is well established that the reliability requirement under the principled
exception to the hearsay rule refers to threshold, not ultimate reliability. After all,
the ultimate reliability of any piece of evidence received in a criminal trial is for
the trier of fact to determine in the context of all the evidence adduced at trial:
Khelowan, at paras. 2-3, 50; Youvarajah, at para. 23.
[150] Since the underlying concern when hearsay evidence is proposed for
admission is the opponent's ability to test it by traditional means, the reliability
requirement under the principled approach seeks to identify those cases in which
this difficulty is sufficiently expunged to justify receiving the evidence by
exception to the general exclusionary rule: Khelowan, at para. 61.
[151] A proponent who seeks the reception of hearsay evidence under the
principled exception usually tries to satisfy the reliability requirement in either of
two ways. One way is to show that no real concern exists about the truth of the
statement because of the circumstances in which the statement came about.
Another way of satisfying the reliability requirement is to demonstrate that no real
concern arises from the introduction of the statement in hearsay form because, in
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the circumstances, the opponent can sufficiently test its truth and accuracy:
Khelowan, at paras. 62-63. See also, R. v. Blackman, 2008 SCC 37, [2008] 2
S.C.R. 298, at para. 35.
[152] These two methods of satisfying the reliability requirement are not mutually
exclusive: Khelowan, at para. 65; Blackman, at para. 65; R. v. Devine, 2008 SCC
36, [2008] 2 S.C.R. 283, at paras. 22-23. That said, where the declarant is not
available for cross-examination, the focus of the reliability inquiry will necessarily
be on the circumstances in which the statement came about. The trial judge
should consider the cumulative effect of all the evidence relevant to the reliability
issue with his or her focus on the particular dangers presented by the evidence:
Khelowan, at para. 4.
[153] The factors to be considered on the inquiry into reliability cannot be
categorized in terms of threshold and ultimate reliability. Trial judges are to
undertake a more functional approach with their focus on the particular dangers
raised by the hearsay evidence tendered for admission. But the approach of the
trial judge to the reliability requirement and, more broadly, the issue of
admissibility, must respect the distinction in roles between the trier of law and the
trier of fact. To retain the integrity of the fact-finding process, the issue of ultimate
reliability must not be pre-empted by a determination made on the admissibility
voir dire: Khelowan, at paras. 4, 93.

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[154] Where a proponent seeks to satisfy the reliability requirement by evidence
about the circumstances in which the statement was made, a trial judge may also
consider the presence of corroborating, or for that matter, conflicting evidence:
Khelowan, at para. 100; Chretien, at para. 54.
[155] A final point concerns the duty of a trial judge to give reasons when ruling
on the admissibility of evidence and the scope of appellate review of those
reasons.
[156] The robust body of jurisprudence about the duty of trial judges to provide
reasons for recording convictions and the scope of appellate review of those
reasons for sufficiency does not apply in the same way to evidentiary rulings.
Subject to a duty of procedural fairness, there is no general duty to provide
reasons for an evidentiary ruling. The failure to give reasons on an evidentiary
ruling is not fatal provided that the decision is supportable on the evidence or the
basis for the decision is apparent from the circumstances. The importance of the
subject-matter of the ruling also has a bearing on whether procedural fairness
compels reasons: See, R. v. Woodard, 2009 MBCA 42, 245 C.C.C. (3d) 522, at
paras. 22, 24-25.
[157] As I will explain, I would not give effect to this ground of appeal.
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[158] The trial judge was required to decide whether the Crown had established
that Larizza's KGB statement satisfied the reliability requirement of the principled
exception to the hearsay rule. That determination required a functional approach,
a consideration of all the circumstances surrounding the making of the statement,
to determine whether the Crown had shown that there was no real concern about
the truth of the statement because of the circumstances in which it came about.
[159] To begin, I am satisfied that the reasons of the trial judge on his
admissibility ruling are adequate to permit meaningful appellate review. The
reasons record the principles that the trial judge considered and, albeit briefly,
why he was satisfied that the reliability requirement had been met. Nothing more
was necessary.
[160] Second, the factual findings that go into the determination of reliability are
entitled to deference. The trial judge was well-placed to assess the hearsay
dangers, in this case, essentially sincerity, and the effectiveness of any
safeguards to assist in their conquest. Absent an error in principle, the trial
judge's determination of the threshold reliability is entitled to deference in this
case.
[161] Among the circumstances in which the statement was made, recall that,
unlike most hearsay statements where a declarant is unavailable to testify, this
statement was made under oath with a warning about the consequences of
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providing false information to the police. Larizza was told that the statement
would be disclosed to those affected by it. The information Larizza provided was
first-hand, much of it confirmed by other evidence gathered during the
investigation.
[162] To be fair, some of the factors that the trial judge noted seem unhelpful in
determining the threshold reliability of the statement. That Larizza took the
initiative in contacting the police. That he repeated crucial pieces of information
on different occasions during the statement. However, I am satisfied that those
considerations do not warrant interference with the reliability finding, given the
other valid considerations.
[163] Third, the trial judge was well aware of the motive that underlay Larizza's
statement. He wanted his bail varied. But the judge also knew that whatever
Larizza said, it would make no difference to the charges outstanding against him.
He took those factors into account although they seem to have greater relevance
to the issue of the ultimate reliability than to what is required for reliability under
the principled exception to the hearsay rule.
[164] Fourth, the trial judge had an advantage not often available in cases
involving unavailable declarants and hearsay said to meet the reliability
requirement because of the circumstances in which the statement was made.
The trial judge was an eye and ear witness to the statement, thus was in a
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position to evaluate, at the threshold, the sincerity of Larizza to the extent it was
revealed by his appearance on the video.
[165] Finally, the double hearsay claim is misplaced. Larizza recounted what
Muzzi (and Ritchie) said and did the night before takedown day. They brought
drugs to Larizza's house. They asked about leaving them in his garage. They did
so. With Larizza's permission. Their conduct was an act in furtherance of a
common unlawful design to traffic in controlled substances. What they did and
what Larizza saw them doing was not hearsay. Their joint request was not
hearsay. To the extent it implied trafficking, it was properly admissible under the
co-conspirators' exception to the hearsay rule.
Ground #3: The Muzzi Guilty Plea and Underlying Facts
[166] This ground of appeal also has to do with evidence received at trial after a
voir dire into its admissibility. First, some added background.
The Additional Background
[167] Frank Muzzi was arrested on takedown day on several drug offences and
a related criminal organization charge. None of the charges related to the
cocaine and marijuana found in Larizza's garage on takedown day. Shortly after
Sal Larizza gave his KGB statement to police, Muzzi was charged with further
offences arising out of the seizure of the cocaine and marijuana in Larizza's
garage.
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[168] Within a year of Larizza's statement, Muzzi pleaded guilty to several
charges, including those related to the seizures at Larizza's residence. Muzzi
was represented by very experienced counsel. The statement of facts read by
the trial Crown to support the plea included a reference to a part of Larizza's KGB
statement. The excerpt was a passage in which Larizza recounted what Muzzi
had said when he brought a box over to Larizza's house and asked whether he
could store it (the box) overnight:
It's just for the night. Tomorrow morning it will be out,

it'll be off the property.
Muzzi left the box. The following morning police executed a search warrant at
Larizza's house, found the box and arrested Larizza.
[169] Muzzi's counsel said: "my client acknowledges his involvements in the
events in question and the facts with respect to these activities are
acknowledged as being correct and ample for a finding of guilt."
[170] Frank Muzzi received an agreed-upon sentence. Charges against his
mother and sister were withdrawn. Although the record of his guilty plea and
sentencing proceedings contains no mention of it, the trial Crown also agreed not
to call Frank Muzzi as a witness in any future proceedings against the other
alleged co-conspirators.
Page: 51
[171] The trial judge admitted the fact that Muzzi pleaded guilty and made
admissions for a non-hearsay purpose on the voir dire and the trial. The judge
concluded:
I am prepared to admit that fact for use on this voir dire

for the determination of the threshold reliability of the
Larizza statement. It doesn't matter whether the
contents of Muzzi's statements were true. The fact that
he made the statements many months after Larizza
made his statement is something the trier of fact may
consider in determining the reliability of Larizza's
statement. The fact that the truth of Muzzi's statements
is not in evidence detracts from but does not nullify the
usefulness of the fact that he made statements that tend
to confirm Larizza's statement.
I am prepared to admit that fact and the contents of his

admissions into evidence at trial as evidence to be used
in determining the collateral issue of identification of the
cell phone communicators other than the accused.
[172] The appellant says that the trial judge was wrong to admit the Muzzi plea
and acknowledged facts. Each was hearsay. Neither was necessary nor reliable.
[173] The appellant focuses principally on the trial judge's failure to consider the
threshold requirement of necessity. Muzzi was in custody serving a sentence in a
federal penitentiary. He was a competent and compellable witness for the Crown.
There was no suggestion that, if called as a witness, he would resile from the
admissions he made on entering his guilty plea. His availability meant that the
Page: 52
necessity requirement could not be satisfied and the evidence should have been
excluded.
[174] The appellant says that this evidence had no legitimate non-hearsay use,
thus should not have been received on this basis either. It is well-settled that the
plea of guilty of one person, even of a co-accused, is not admissible against
another accused of the same or a related crime.
[175] The respondent rejects any suggestion that this evidence was received or
used by the trial judge as evidence of the truth of the facts admitted. The
evidence was tendered, received and used for a non-hearsay purpose, as
circumstantial evidence to assist in proof of the identity of a person with whom
the appellant communicated on his Blackberry.
[176] The plea of guilty of one person accused of a crime is not evidence, much
less proof, that another, accused of the same crime, committed it: R. v. Berry
(1957), 118 C.C.C. 55 (Ont. C.A.), at p. 60. A plea of guilty is a formal admission
by its maker of each essential element of the offence to which the plea is
entered. This formal admission relieves the Crown of the burden of proving these
essential elements on admissible evidence beyond a reasonable doubt.
[177] The pleas of guilty or convictions of other alleged co-conspirators are not
admissible to prove the existence or fact of the conspiracy in the trial of another
Page: 53
or other alleged co-conspirators: R. v. May (1984), 13 C.C.C. (3d) 257 (Ont.
C.A.), at p. 260, leave to appeal refused, [1984] 2 S.C.R. viii; R. v. Paquet
(1999), 140 C.C.C. (3d) 283 (N.B. C.A.), at paras. 22-23.
[178] Where a plea of guilty by a third party is admissible in a criminal trial, it
may be proven in a variety of ways. For example, the person who pleaded guilty
may testify to that effect. Documentary evidence of the plea may be received
under the principles relating to the admission of public documents or court
records or the provisions of the Canada Evidence Act, R.S.C. 1985, c. C-5. See,
R. v. Caesar, 2016 ONCA 599, 339 C.C.C. (3d) 354, at para. 33.
[179] Transcripts of court proceedings, including transcripts of guilty pleas, may
be admissible to prove what was actually said or what actually happened in an
earlier proceeding, but they are not rendered admissible as evidence of the truth
of their contents simply because of their nature, common law principles or
statutory provisions. The hearsay rule intercedes and must be overcome by
some listed or principled exception if proving the truth of their contents is the
object of their proponent: Caesar, at para. 47. Needless to say, if the proponent's
purpose is otherwise, the hearsay rule erects no bar.
[180] Three brief points should be made about the operation of the hearsay rule
in the circumstances.
Page: 54
[181] First, a critical feature of the hearsay rule is the purpose for which the
evidence, which is said to be hearsay, is tendered. It is only where the evidence
is offered to prove the truth of its contents that the hearsay rule applies and
renders the evidence prima facie inadmissible: Khelowan, at para. 57; R. v.
Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 36.
[182] Second, what a person says may have probative value as non-hearsay, as
for example, to establish the identity of the speaker. Used in this way, no
assumption of the truth of the statement is required and the hearsay rule is not
implicated: R. v. Evans, [1993] 3 S.C.R. 653, at pp. 662-663; R. v. Ferber (1987),
36 C.C.C. (3d) 157 (Alta. C.A.), at p. 160.
[183] Third, evidence of things done and said by alleged co-conspirators may be
admitted as circumstantial evidence of the existence of an agreement.
Admissibility on this basis for this purpose depends on the inferences available
from the evidence as a whole. Evidence of things done and said admitted for this
purpose need not be done or said in furtherance of the common design: R. v.
Puddicombe, 2013 ONCA 506, 299 C.C.C. (3d) 534, at para. 112.
[184] I would not accede to the argument advanced in support of this ground of
appeal for three reasons.

Page: 55
[185] First, the basis on which the evidence was admitted and used. The
evidence of Muzzi's plea of guilty and the iteration of the facts on which it was
based was neither tendered nor used to prove the truth of what was said. It was
used on the voir dire in determining the threshold reliability of Larizza's KGB
statement and in proving Muzzi's identity as a person with whom the appellant
communicated. Neither use attracted the application of the hearsay rule.
[186] Second, the admissibility of the evidence as non-hearsay. Evidence of
what Muzzi said and did, as for example in Larizza's garage the night before the
takedown, was admissible as circumstantial evidence of the existence of an
agreement to traffic in controlled substances. The manner in which the trial judge
used this evidence in determining whether the appellant's guilt had been proven
beyond a reasonable doubt did not exceed the basis upon which it was tendered
and properly admissible.
[187] Third, the inclusion of Larizza's statement in the uncontested statement of
facts. This complaint is unavailing as a result of my determination that Larizza's
KGB statement was properly admitted at trial.
Ground #4: The Admissibility of Muzzi's and Larizza's Statements under the
Co-conspirators' Exception
[188] This ground of appeal asserts error in the reception of evidence of Muzzi's
utterances on the night before takedown day and Larizza's repetition of them in
Page: 56
his KGB statement admitted in evidence at trial. It is unnecessary to repeat the
background events that resulted in Larizza's statement or its admission at trial.
The point raised is a narrow one and can be determined briefly in light of the
discussions that have preceded it.
[189] In a brief endorsement, the trial judge reviewed the argument advanced at
trial and relying upon R. v. Chang (2003), 173 C.C.C. (3d) 397 (Ont. C.A.)
explained his rejection of it:
The defence argued that since Muzzi is incarcerated, he

was "available" and the Crown should not take refuge
behind an exception to the hearsay rule. I was
impressed with the defence argument that the Crown
could not avoid presenting Muzzi to the court in person
simply because of a promise by the Crown not to call
him as a witness which was part of Muzzi's sentencing
proceedings. In retrospect I agree with the Crown that
just as the Crown has a discretion to proceed against
alleged co-conspirators jointly thereby making them
"unavailable" so too the Crown should not be restricted
in the exercise of its discretion with respect to plea
discussions. (R. v. Chang 103). In any event, we
cannot expect in the circumstances of this case to get
evidence from Muzzi of the same value. (See Chang
105.) In the event the defence has not met the onus
placed upon it.
[190] In advancing argument in support of this ground of appeal, the appellant
accepts that under the co-conspirators' exception to the hearsay rule, acts and
Page: 57
declarations of co-conspirators in furtherance of the common design may be
admitted against other probable members of the conspiracy to prove their actual
membership or participation in that conspiracy. The appellant also accepts that
even when it applies to double hearsay, the co-conspirators' exception as
articulated in R. v. Carter, [1982] 1 S.C.R. 937, satisfies the necessity and
reliability requirements of the principled exception to the hearsay rule, at least
where the declarants testimony is unavailable to the Crown because he or she is
a co-accused.
[191] The appellant also accepts that it is his burden to demonstrate why in this
case the evidence did not meet the fundamental criteria applicable to the
principled approach to the hearsay rule. However, he says that he has met that
burden because the acts and declarations of Muzzi do not satisfy the necessity
requirement under the principled approach. The appellant points out that Muzzi
was available to testify for the Crown. He was in a federal penitentiary serving a
sentence for his involvement in various drug offences. He was a competent
witness for the Crown and his attendance could be compelled by subpoena.
Nothing in the trial record indicates that he would have been uncooperative or
would have failed to give evidence in accordance with the admissions he made
when he pleaded guilty. This demonstrated lack of necessity renders the
evidence inadmissible.
Page: 58
[192] The respondent takes the position that the evidence in issue was properly
admitted. The evidence, which consisted of acts and declarations of Muzzi in
furtherance of the common unlawful object, was admissible despite its hearsay
nature under the co-conspirators' exception to the hearsay rule. As a general
rule, the co-conspirators' exception satisfies the criteria of necessity and reliability
under the principled approach.
[193] The respondent acknowledges that in some circumstances evidence that is
admissible under the co-conspirators' exception may not satisfy the necessity
and reliability requirements of the principled approach. But those instances will
be rare. In this case, as the trial judge properly concluded, the appellant has
failed to meet that burden in connection with the necessity requirement.
[194] Neither Ritchie nor Muzzi was available to testify.
[195] Ritchie was awaiting trial on a separate indictment. Although he was a
competent witness for the Crown at the appellant's trial and could be compelled
to testify, calling him as a witness would leave the Crown open to an argument
that any prosecution of Ritchie after he gave evidence at the appellant's trial
would be an abuse of process.
[196] In connection with Muzzi, who was also a competent witness for the Crown
who could be compelled by subpoena to attend the appellant's trial, the
respondent submits that he too was unavailable. When Muzzi pleaded guilty and
Page: 59
received an agreed-upon sentence, the trial Crown agreed that Muzzi would not
be called as a prosecution witness in the subsequent trials of any alleged co-
conspirators. This was an agreement that the trial Crown could make in the
exercise of his prosecutorial discretion. There is no suggestion that such an
agreement was beyond the reach of prosecutorial discretion or amounted to an
abuse of that discretion. As a result, Muzzi was not available as a witness.
[197] In addition, the respondent reminds us, the necessity requirement refers to
reasonable necessity. It may be met where a trial judge is satisfied that there is
no reasonable prospect of obtaining meaningful evidence from a witness of an
accurate and frank rendition of relevant events or evidence of equivalent value to
contemporaneous acts and declarations.
[198] Several principles combine to inform the determination of this ground of
appeal.
[199] First, the relationship between the listed and principled exceptions to the
hearsay rule.
[200] The traditional or listed exceptions to the hearsay rule, such as the co-
conspirators' exception, remain presumptively in place. However, a listed
exception can be challenged to determine whether it is supported by the indicia

Page: 60
of necessity and reliability required by the principled approach: R. v. Mapara,
2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15.
[201] Sometimes, evidence that would be admissible under a listed exception
may be excluded because, in a given set of circumstances, the requirements of
necessity and reliability have not been met. But these instances are said to be
"rare": Mapara, at para. 15.
[202] Second, the relationship between the co-conspirators' exception and the
principled approach.
[203] The co-conspirators' exception to the hearsay rule meets the requirements
of the principled approach to the hearsay rule: Mapara, at para. 31. The
conditions imposed under Carter provide sufficient circumstantial guarantees of
trustworthiness to satisfy the reliability requirement: Mapara, at para. 27. The
necessity requirement is satisfied by a combination of factors such as the non-
compellability of a co-accused declarant, the undesirability of trying alleged co-
conspirators separately, and the evidentiary value of contemporaneous
declarations made in furtherance of an alleged conspiracy: Mapara, at para. 18;
Chang, at para. 105.
[204] Third, the requirement or indicium of necessity.
[205] The criterion or requirement of necessity is accorded a flexible definition,
capable of encompassing diverse situations with a common feature the

Page: 61
unavailability of relevant direct evidence. Necessity may be established not only
by the unavailability of the declarant for testing by cross-examination, but also
where we cannot expect to get evidence of the same value from the same or
other sources: R. v. Smith, [1992] 2 S.C.R. 915, at pp. 933-934; Chang, at para.
105. Whether the necessity criterion has been met requires a consideration of all
of the circumstances in each individual case: R. v. B. (K.G.), [1993] 1 S.C.R. 740,
at p. 798; Chang, at para. 105.
[206] Several reasons persuade me to reject this ground of appeal.
[207] First, it is a "rare case" in which evidence that is admissible under the co-
conspirators' exception does not also satisfy the indicia of necessity and reliability
under the principled exception. Reliability is not an issue here and, in any event,
is satisfied by the Carter rule. Necessity is to be determined on the basis of a
consideration of all the circumstances. A trial judge's conclusion on this issue is
entitled to deference.
[208] Second, necessity is accorded a flexible definition. It is capable of
encompassing diverse situations. At its core, necessity is concerned with the
unavailability of relevant direct evidence. The physical or testimonial
unavailability of the declarant is not the only basis upon which necessity may be
established.
Page: 62
[209] Third, for different reasons, relevant direct evidence was not available from
either Ritchie or Muzzi, thus the necessity for its introduction under the hearsay
exception.
[210] For practical purposes, Muzzi was not available to give evidence for the
prosecution at trial. As a non-party at the appellant's trial, Muzzi was a competent
witness for the Crown and could be compelled to testify. But whether as a quid
pro quo for his guilty plea or otherwise, the trial Crown agreed that Muzzi would
not be called as a witness for the Crown in any later prosecution of an alleged
co-conspirator. This decision was an exercise of prosecutorial discretion elusive
of judicial review absent evidence of abuse of process of which there is none
here.
[211] As for the availability of Ritchie to provide relevant direct evidence, the
circumstances are different, but the result the same. As a separately indicted
accused Ritchie was competent and could be compelled to give evidence for the
Crown. But, leaving to one side his willingness to testify and to do so truthfully,
about which we know nothing, requiring him to testify at the appellant's trial would
invite an application by Ritchie at his own trial to stay proceedings for abuse of
process.
[212] In the end, there is also the question of onus. That fell upon the appellant
to establish that this was one of the "rare cases" in which the co-conspirators'
Page: 63
exception failed to comply with the requirements of the principled approach, in
this case, because it failed to establish necessity. In that task, the appellant
failed.
Ground #5: Unreasonable Verdicts
[213] The appellant challenges as unreasonable the convictions entered on
several counts alleging preliminary and substantive offences involving cocaine. A
brief reference to the trial judge's reasons provides sufficient background to
assess the viability of this complaint.
The Reasons of the Trial Judge
[214] The trial judge found the appellant not guilty of trafficking cocaine as a
result of his purchase of cocaine from a person described as "Penguin" and also
of conspiracy to traffic cocaine with Penguin. The trial judge considered the
evidence adduced at trial insufficient to ground a finding that Penguin was aware
that the appellant purchased the cocaine for the purpose of selling it.
[215] The trial judge then examined the relationship between the appellant and
Ritchie. He found that Ritchie's assistance in acquiring the cocaine from Penguin
bespoke an agreement to which Ritchie and the appellant were parties. In
reaching this conclusion, the judge considered the nature of the relationship
between the two men; the substantial amount of cocaine involved; and Ritchie's
use of the same method of transferring money that he had used in the past in
Page: 64
drawing an inference that the cocaine two kilograms would be trafficked. The
agreement to traffic established a conspiracy to traffic cocaine and rendered the
appellant and Ritchie parties to trafficking.
[216] The trial judge was also satisfied that the appellant had constructive
possession of the cocaine from Penguin when three factors coalesced:
i. the money was paid;
ii. the cocaine was shipped to the appellant; and
iii. the appellant was provided with the tracking details for the
package containing the cocaine.
[217] The appellant acknowledges that the trial judge correctly concluded that,
as a mere purchaser of cocaine, the appellant could not be convicted of
conspiracy to traffic or trafficking cocaine with Penguin. Where the trial judge
erred, the appellant says, was in drawing the further inferences necessary to
reach a conclusion of guilt on the counts involving Ritchie.
[218] The appellant contends that the cumulative effect of the evidence
demonstrated nothing more than that Ritchie was an agent for the purchaser
the appellant whose only role was to send the money to Penguin. There was
no evidence that Ritchie knew the purpose for which the money was being sent.
It follows that the evidence could not support a finding that Ritchie and the
Page: 65
appellant conspired to traffic cocaine. In addition, the simple fact that money was
sent and cocaine shipped did not establish that the appellant was in possession
of cocaine or party to a conspiracy to possess it.
[219] The respondent begins with a brief reminder about the scope of review
available when an appellant claims a verdict is unreasonable. The fundamental
issue is whether the verdict is one that a properly instructed jury, acting judicially,
could reasonably have rendered. Absent a palpable and overriding error, an
appellate court must not revisit findings of fact made or inferences drawn by triers
of fact. These findings and inferences are entitled to significant deference and
cannot be pushed aside simply because other inferences may have been
available or the reviewing court would not have decided the case in the same
way.
[220] The respondent says that the cumulative effect of the email
correspondence adduced at trial showed that the appellant and Ritchie worked
together to purchase and have delivered two kilograms of cocaine from Penguin.
It was acknowledged at trial that two kilograms of cocaine was an amount
sufficient for the purpose of trafficking.
[221] The respondent contends that the appellant had constructive possession of
the two kilograms of cocaine shipped by Penguin in return for the cash payment
sent by Ritchie. The appellant knew that Penguin sent cocaine to him, in return
Page: 66
for a cash payment, and provided the appellant with the tracking details
necessary to take delivery. This satisfied the requirements of constructive
possession.
[222] Finally, the respondent relies on the fact that the appellant did not provide
an innocent explanation of his conduct as a factor that undermines the
appellants assertion that the verdict was unreasonable.
[223] Several principles of general application have a say in our decision on this
ground of appeal. Some have to do with the scope of review permitted in
response to claims of an unreasonable verdict. Others relate to drawing
inferences from evidence adduced at trial. Yet others explain the requirements
for constructive possession.
[224] First, unreasonable verdict review.
[225] To decide whether a verdict is unreasonable, we must determine whether
the verdict rendered is one that a properly instructed jury or a judge could
reasonably have rendered: R. v. Yebes, [1987] 2 S.C.R. 168, at p. 186 R. v. R.P.,
2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9. We must not of course merely
substitute our view for that of the trial judge. However, in order to apply the test,
we must re-examine and to some extent, within the limit of appellate

Page: 67
disadvantage, re-weigh and consider the effect of the evidence adduced at trial:
Yebes, at p. 186.
[226] A verdict may also be unreasonable if the trial judge has drawn an
inference or made a finding of fact essential to the verdict that is:
i. plainly contradicted by the evidence relied on by the trial judge in
support of that inference or finding; or
ii. incompatible with evidence that has not otherwise been
contradicted or rejected by the trial judge.
See, R.P., at para. 9; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4,
16 and 19-21.
[227] In considering the reasonableness of the verdict, this court may infer from
the appellants failure to testify, an inability to provide an innocent explanation: R.
v. Ellis, 2013 ONCA 739, 303 C.C.C. (3d) 228, at para. 51.
[228] Second, inferences and claims of unreasonable verdicts.
[229] An inference is a deduction of fact that may logically and reasonably be
drawn from another fact or group of facts found or otherwise established by
evidence adduced at trial. An inference is a conclusion that may, not must, be
drawn in the circumstances. A single item or several items of evidence may give
rise to more than one inference. It is for the trier of fact, whether judge or jury, to
determine what inferences are to be drawn from the evidence taken as a whole
Page: 68
and whether the cumulative effect of those inferences satisfies or falls short of
the standard of proof required in a criminal case.
[230] Whether a trial judge has drawn the proper inference from a fact or group
of facts established by the evidence is a question of fact, as is whether the whole
of the evidence is sufficient to establish an essential element of an offence: R. v.
Kent, [1994] 3 S.C.R. 133, at p. 143. Appellate courts may not interfere with the
findings of fact made and the factual inferences drawn by a trial judge unless
those findings and inferences are:
i. clearly wrong;
ii. unsupported by the evidence; or
iii. otherwise unreasonable.
Any error must be plainly identified and be shown to have affected the result. In
other words, the error must be shown to be at once palpable and overriding: R. v.
Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9.
[231] It is of the essence of circumstantial evidence that a single item of
evidence may support more than one inference. The same may be said of
several items of circumstantial evidence, whether considered individually or
assessed cumulatively. That different inferences may be drawn from individual
items of evidence, or from the evidence as a whole, does not entitle a reviewing
court to re-weigh or recalibrate the evidence by substituting, for a reasonable

Page: 69
inference drawn by the trial judge, an equally or even more persuasive
inference of its own. The task of the reviewing court is to determine whether the
inferences drawn by the trial judge are "reasonably supported by the evidence".
No more. No less. See, H.L. v. Canada (Attorney General), 2005 SCC 25, [2005]
1 S.C.R. 401, at para. 74.
[232] Third, the elements of possession.
[233] A person may be found in possession of a thing in different ways. Among
those ways is knowingly having the thing in some place, irrespective of whether
the person owns or occupies the place, for the use or benefit of himself or
somebody else: Criminal Code, s. 4(3)(a)(ii).
[234] As I will briefly explain, I would reject this ground of appeal.
[235] The core findings of fact made by the trial judge do not reflect palpable and
overriding error. The inferences drawn by the trial judge from the cumulative
effect of this evidence fall well within the field of reasonable inferences available
on this evidence. As the communications reveal, this was not a first-time
transaction between Ritchie and the appellant, on the one hand, and Penguin, on
the other. The quantity of drugs shipped two kilograms was plainly for the
purpose of trafficking. The drugs were being shipped to a place for pick-up in a
Page: 70
package that the appellant had the information necessary to locate. Nothing
more was required.
CONCLUSION
[236] For these reasons, I would dismiss the appeal.
Released: April 11, 2017 ("G.R.S.")
"David Watt J.A."

"I agree. G.R. Strathy C.J.O."
"I agree. K.M. Weiler J.A."

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COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tsekouras, 2017 ONCA 290

Strathy C.J.O., Weiler and Watt JJ.A.

Her Majesty the Queen

Joseph S. Wilkinson, for the appellant

Stephen Dawson, for the Crown

Heard: September 6-7, 2016

remained. Searches. Seizures. Arrests. The dismantling of a drug trafficking

[2] On takedown day investigators coordinated their activities. Searches,

seizures and arrests were to take place simultaneously.

arrest Tsekouras. So investigators watched John Tsekouras. Very closely. What

he did. Where he went. Whom he met. To whom he spoke.

them into another, investigators changed their minds. No more surveillance. It

was time to make an arrest.

attempting to obstruct justice. Or maybe it was for possession of the proceeds of

unconditionally. And so John Tsekouras went on his way.

wanted to search the Blackberry devices. And depending on what investigators

arrested and released may be "revisited".

convictions that were entered at trial.

despite the investigative missteps made in the collection of this evidence

THE BACKGROUND FACTS

[10] The grounds of appeal advanced do not command protracted reference to

the evidence adduced at trial. However, what is required is a review of the

manner in which the evidentiary cornucopia located in the Blackberry was

(OPP), and the Thunder Bay Police Service (TBPS).

joint proceeds of crime investigation.

kilogram of cocaine left by Frank Muzzi in Salvatore Larizza's garage with

The Case for the Crown

i. messages found on Tsekouras' Blackberry seized incident to his

arrest and retained by police after his unconditional release

without formal charge;

ii. the hearsay statement of Salvatore Larizza admitted under the

principled exception to the hearsay rule after Larizza's death

prior to trial; and

iii. the guilty plea and accompanying agreed statement of facts on

which it was based in the prosecution of Frank Muzzi.

execution of warranted searches, the seizures of controlled substances and

surveillance of Tsekouras and his family contemporaneously with searches of

that police lacked reasonable grounds to arrest Tsekouras, although they

The Arrest of John Tsekouras

members, they decided to stop him.

Tsekouras to the ground, Tsekouras threw his Blackberry on the ground.

scene of Tsekouras' arrest. He directed that Tsekouras be released

unconditionally. And this was done.

The Blackberry is Retained

[21] Despite Tsekouras' unconditional release, police kept the Blackberry

same basis from Tsekouras' vehicle.

Blackberrys to examine them. If they found any evidence during their

obstruct justice charge.

The Initial Examination of the Blackberry

[23] An officer of the TBPS attempted to examine Tsekouras' Blackberry. The

examine the Blackberry.

purposes of the investigation. No further mention need be made of this phone.

The Request for Further Examination

wanted these devices examined, their data harvested and an analysis

open the encryption and to recover the documents.

[26] The RCMP laboratory required completion of a form to accompany any

examination and analysis sought. Search warrants accompanied every device

but one the Blackberry of John Tsekouras.

Tsekouras' Blackberry was a decision of a judge of the Superior Court of Justice.

This authority R. v. McTavish (8 December 2010), CR-09-00003591-00 (Ont.

S.C.J.) was said to permit examination and analysis of the contents of an

electronic device seized as incident to an arrest. On the Charter application to