R. v. Le (T.D.), 2011 MBCA 83

Citation: R. v. Le (T.D.), 2011 MBCA 83 Date: 20111003 Docket: AR 09-30-07118 IN THE COURT OF APPEAL OF MANITOBA Coram : Chief Justice Richard J. Scott Mr. Justice Michel A. Monnin Madam Justice Barbara M. Hamilton B E T W E E N : HER MAJESTY THE QUEEN ) M. D. Glazer ) for the Appellant Respondent ) ) E. A. Thomson and ) E.

Szach - and - ) for the Respondent ) ) Appeal heard: TAM DONG LE ) October 26 and 27, 2010 ) (Accused) Appellant ) Judgment delivered: ) October 3, 2011 TABLE OF CONTENTS Page Grounds of Appeal 2 Background 4 Appointment of the Initial Judge to the Court of Appeal 8 The Trial Judge’s Refusal to Grant an Adjournment of the Trial 13 Crown Disclosure 20 Search Warrant Issues 27 Identification of the Appellant as the Shooter 47 Unreasonable Verdict – First Degree Murder 53 Competence of Defence Counsel 56 Other Alleged Errors by the Trial Judge 96 Transcript Issues 99 Decision 116 SCOTT C.J.M.

GROUNDS OF APPEAL 1 The appellant was convicted of first degree murder after trial by judge and jury and sentenced, as is mandated for such a conviction, to life imprisonment without eligibility for parole for 25 years. At trial, the appellant advanced an alibi defence, testifying

that he was not present at the time the murder took place.

It is self-evident that the jury did not believe him, nor were they left in a reasonable doubt by his evidence, and, on the basis of the evidence which they did accept, they were convinced beyond a reasonable doubt as to his guilt. 2 A number of the grounds of appeal, which total 41 in all, arise as a result of two significant events that occurred before the trial: the assigned trial judge was appointed to the Court of Appeal and the appellant had to change defence counsel. 3 MacInnes J., as he then was, was assigned to be the trial judge and in that capacity he decided several preliminary matters.

Upon his appointment to the Court of Appeal, the Chief Justice of the Court of Queen’s Bench assigned Suche J. to be trial judge. To distinguish them, I will refer to MacInnes J. as the “initial judge” and Suche J. as the “trial judge.” 4 The appellant’s counsel during some of the pre-trial proceedings was Martin Glazer (his counsel on this appeal), who was unable to continue due to personal family circumstances. The appellant retained Roberta Campbell, another experienced defence counsel, when his request to adjourn the trial to a date when Mr. Glazer was available was declined by the trial judge.

I will refer to Ms Campbell in these reasons as the “defence counsel.” Mr. Glazer will be referred to as the “initial defence counsel.” 5 The 41 grounds of appeal are summarized as follows:

(1) Substantive and procedural errors occurred when the initial judge was appointed to the Court of Appeal, resulting in his replacement by the trial judge.

(2) The trial judge erred in refusing to grant an adjournment of the trial due to illness within the initial defence counsel’s family, which resulted in the defence counsel being retained for the trial.

(3) Full disclosure prior to the trial did not occur.

(4) The search warrant that issued with respect to the premises where the appellant resided was invalid, and there were various procedural irregularities in the search itself.

(5) The identification evidence was inadequate, and the verdict of first degree murder was unreasonable.

(6) The defence counsel was not competent. Wrapped up in this ground of appeal are issues relating to: (

a) the Crown’s conduct during the course of the trial with respect to numerous issues; (

b) the adequacy of the charge to the jury, particularly with respect to the lack of instruction for the elements of the offence of second degree murder and in failing to charge on self-defence, provocation or manslaughter; and (

c) numerous evidentiary rulings made during the course of the trial, which are challenged as being in error.

(7) Lastly, the lack of a complete record for all of the proceedings as a result of a number of gaps in the transcripts (caused, apparently, by a malfunctioning of the court monitor equipment) at various points during the course of the trial resulted in a miscarriage of justice. 6 In the end, as these reasons will explain, there is no merit to any of the grounds of appeal. Background 7 In the early morning hours on June 15, 2005, Miguel Munoz (the victim) was shot four times and killed.

The shooting occurred in the vicinity of Monty’s nightclub on Pembina Highway, in Winnipeg, and was witnessed, to a greater or lesser extent, by numerous bar patrons. Many of the facts surrounding the shooting and its aftermath were in dispute, including the identity of the shooter. 8 What is not disputed is that some time prior to the shooting, Erica Erickson, an acquaintance and sometime girlfriend of the appellant, while at Monty’s, had an altercation with another woman and that, after being escorted outside by bar staff, a fight ensued which involved a number of other females.

The victim at some point intervened and pulled Erica Erickson off of one of the other females, who was the victim’s girlfriend. An Asian male (hereinafter the shooter) and the victim then got into their own altercation. 9 After the victim and the shooter scuffled and exchanged words, they were separated by bar security, but continued to argue. The shooter began to cross Pembina Highway, heading for a parking lot on the other side of the street from Monty’s. Witnesses testified that the shooter was walking backwards, gesturing to the victim to come across the street.

The victim removed his shirt and followed the shooter to the parking lot across the street. It is the position of the appellant that the evidence discloses the victim approached the shooter in an aggressive manner. As the victim got close to the shooter, the shooter produced a handgun and shot him four times, once in the head, twice in the chest and a glancing wound to the arm. The shooter then fled. 10 Five persons who knew the appellant personally, and who were present during the incident, testified that they saw the appellant shoot the victim or stand over the fallen victim.

The same five, plus another witness who knew him, also testified that they saw the appellant in the patio area outside the bar at Monty’s before the shooting took place. The appellant says that those eyewitnesses who knew him falsely accused him of the crime. 11 Nineteen other witnesses who were at Monty’s at the time of the shooting were strangers to the appellant.

Six failed to identify the appellant’s photograph in the photo pack prepared by the police; 11 others selected more than one photograph or were not sure; and two others did identify the appellant’s photograph as someone who was outside, in front of the bar patio, but they did not see

the shooting. 12 The appellant testified to the following: he was in his home at 39 Southlawn Stroll until about 1:00 a.m. on June 15; after returning a truck to his father’s home, he was on his way back home when he received a call from Erica Erickson to pick her up at Monty’s; when almost there, he received a warning call from Erica Erickson suggesting he not go there; thereafter, he saw the police lights, and because he was in breach of his bail curfew he chose instead to drive directly to 39 Southlawn Stroll without stopping at the bar. 13 At trial, Erica Erickson and her friend Sabrina Busko testified that after the shooting, they and the appellant ran to where the appellant had parked his Honda truck and that he drove them to a residential area, where he abandoned the two girls in his truck. 14 During their investigation, the police conducted a “ride along” with Busko in an effort to locate precisely where she and Erica Erickson had been left by the appellant.

Although uncertain of the exact location, Busko was able to point out an area in front of 39 Southlawn Stroll. Subsequently, a search warrant for 39 Southlawn Stroll was obtained. During the search that followed, a .38-calibre handgun was located by the police under a rock in the backyard flower bed of 39 Southlawn Stroll. As the handgun was being removed, a hand search in the dirt was conducted, and a clip for the gun, with a bullet inside, was found.

Evidence at trial established, by a comparison with one of the bullets found in the victim’s body, that the handgun was the murder weapon. 15 A number of procedural difficulties occurred prior to the commencement of the trial. 16 The appellant was charged with first degree murder by direct indictment and scheduled to proceed to trial for six weeks commencing January 15, 2007.

A motion was made for production of the records pertaining to the admission, then withdrawal, of Erica Erickson and her sister Andrea Erickson from the High Risk Witness Management Program of the Department of Justice and the Winnipeg Police Service Secure Operations Unit (HRWMP and SOU, or collectively Witness Protection Program or the Program).

The trial was adjourned as a result of the disclosure issue. 17 In June 2007, the initial judge was appointed to the Court of Appeal; by this time, he had already ruled on motions regarding the validity of the search warrant and the disclosure issue, and further hearings were scheduled for July and September.

He sent a letter to counsel advising of his appointment and stated, “… I am no longer able to be the trial judge in respect of this case.” In the result, the Chief Justice of the Court of Queen’s Bench assigned the trial judge. 18 The appellant endeavoured to obtain an order that only the initial judge had jurisdiction to preside over the trial; this motion was heard and dismissed by the trial judge, who thereafter heard the motions not yet completed, and the second trial date was scheduled for eight weeks in May and June 2008. 19 However, due to the sudden illness and hospitalization of his father, the initial defence counsel requested an adjournment with the consent of the appellant.

The trial judge, after hearing extensive argument, refused to adjourn the trial to dates when the initial defence counsel advised he would be available. The appellant thereupon discharged the initial defence counsel, as he was unable to represent him. A third set of trial dates was scheduled to commence January 12, 2009; the trial proceeded at that time with the defence counsel representing the appellant.

Appointment of the Initial Judge to the Court of Appeal 20 As we have seen, after hearing two preliminary motions, and well before the commencement of the trial itself, the initial judge was appointed to the Court of Appeal. The Chief Justice of the Court of Queen’s Bench then promptly appointed the trial judge pursuant to the provisions of s. 669.2(1) of the Criminal Code (the Code ). 21 At the relevant time, ss. 669.2 and 669.3 read as follows: Continuation of proceedings 669.2

(1) Subject to this section, where an accused or a defendant is being tried by (

a) a judge or provincial court judge, (

b) a justice or other person who is, or is a member of, a

summary conviction court, or (

c) a court composed of a judge and jury, as the case may be, and the judge, provincial court judge, justice or other person dies or is for any reason unable to continue , the proceedings may be continued before another judge, provincial court judge, justice or other person, as the case may be, who has jurisdiction to try the accused or defendant. . . . . . Where no adjudication is made

(3) Subject to subsections (4) and (5), where the trial was commenced but no adjudication was made or verdict rendered, the judge, provincial court judge, justice or other person before whom the proceedings are continued shall, without further election by an accused, commence the trial again as if no evidence had been taken. Where no adjudication is made - jury trials

(4) Where a trial that is before a court composed of a judge and a jury was commenced but no adjudication was made or verdictrendered, the judge before whom the proceedings are continued may, without further election by an accused, (

a) continue the trial; or (

b) commence the trial again as if no evidence had been taken. Where trial continued

(5) Where a trial is continued under paragraph (4)(a), any evidence that was adduced before a judge referred to in paragraph (1)(

c) isdeemed to have been adduced before the judge before whom the trial is continued but, where the prosecutor and the accused so agree,any part of that evidence may be adduced again before the judge before whom the trial is continued.

Jurisdiction when appointment to another court 669.3 Where a court composed of a judge and a jury, a judge or a provincial court judge is conducting a trial and the judge orprovincial court judge is appointed to another court, he or she continues to have jurisdiction in respect of the trial until its completion. [emphasis added] 22 The appellant argues that he should have been given an opportunity to make submissions to the initial judge before thedecision was made to assign a different judge, as opposed to being obliged to make his motion before the trial judge.

He says that thetrial judge erred in law in treating the motion as a request for recusal, thereby refusing to let the initial judge hear it.

Further, he assertsthat there is no binding or persuasive authority for the proposition that appointment to a court of appeal constitutes an inability tocontinue a trial under s. 669.2 of the Code. 23 The Crown’s position here, and at trial, was that the trial judge was correct in identifying the appellant’s motion as a recusalmotion and that in the absence of any alternative procedure prescribed by the Code, she, as the presiding trial judge, was obliged to hearand decide the motion. See R. v. Trang (D.) et al., 2002 ABQB 1036, 331 A.R. 216, leave to appeal to S.C.C. dismissed, [2003]S.C.C.A. No. 64 (QL), R. v.

Shrubsall (2000), (NS SC), 148 C.C.C. (3d) 425 (N.S.S.C.), and R. v. D.P.F., [2002] N.J.No. 445 (S.C. (T.D.)) (QL). 24 The trial judge rejected the appellant’s motion. She held that the initial judge was “unable to continue” the trial within themeaning of s. 669.2 given his appointment to the Court of Appeal and that he was not obliged to entertain submissions from counsel orissue reasons. 25 While there is no appellate authority that specifically addresses whether the appointment of a trial judge to the Court ofAppeal engages s. 669.2 of the Code, in R. v. Leduc (2003), (ON CA), 176 C.C.C. (3d) 321 (Ont.

C.A.), leave toappeal to S.C.C. dismissed, [2003] S.C.C.A. No. 411 (QL), Laskin J.A., writing for the court, noted (at para. 66): The case law does not establish an exhaustive list of circumstances where a judge would be “unable to continue”. The list, however, hasbeen held to include illness, absence and appointment to higher court. See Ramsey v. The Queen (1972), (NB CA), 8C.C.C. (2d) 188 (N.B.C.A.); R. v. Beauchamp, (QC CS), [2002] J.Q. No. 3214 (QL) (S.C.) [reported 4 C.R. (6th)318]; R. v. Shrubsall (2000), (NS SC), 148 C.C.C. (3d) 425 (N.S.S.C.). The

section uses the open-ended phrase “forany reason”. In my view, the trial judge’s disqualification for bias was a “reason” within this

section of the Code. …. 26 A review of cases where judges have been appointed to higher courts indicates that there is no established procedure in suchcircumstances. For example, in R. v. Basi, 2009 BCSC 1149, and D.P.F., the former trial judges issued reasons explaining their recusal. See too, Shrubsall. 27 On the other hand, in R. v. Neves, Winnipeg CR99-01-20607 (Man.

Q.B.), a case where the presiding judge had beenappointed to the Court of Appeal after conviction and sentence but before one aspect of the sentence was remitted back to her afterappeal, the Chief Justice of the Court of Queen’s Bench, after inquiry as to the availability of the presiding judge, assigned a new judge. To the same effect, see R. v. Zola, [2006] O.J. No. 2825 at para. 4 (S.C.J.) (QL), R. v. Baltovich, [2008] O.J. No. 1607 (S.C.J.) (QL), andR. v. Dorsey, [2009] O.J. No. 5368 (S.C.J.) (QL), where a new trial judge was simply assigned without any recorded objections fromcounsel.

In Trang, it was held that in circumstances involving an allegation of bias, reasons are only required where adjudicative fairnessis at issue. 28 There are a number of reported decisions where a new judge has been assigned as a result of the initial judge’s illness orretirement. Sometimes an explanation (or reasons) is given – sometimes not. See R. v. Poloni, 2009 BCSC 629, 190 C.R.R. (2d) 162, R.v. Hiscock (D.W.), 1999 NSCA 126, 179 N.S.R. (2d) 350, R. v. Humby (1990), (NL SC), 85 Nfld. & P.E.I.R. 201(Nfld. S.C. (T.D.)), and R. v. MacMillan (W.), 2000 BCSC 1619, [2000] B.C.T.C. 1074. In the case of R. v.

Wood, 2001 NSCA 38, 157C.C.C. (3d) 389, given the seriousness of the illness of the trial judge, the Associate Chief Justice determined that the presiding judgewas “unable to continue” pursuant to s. 669.2. But often such assignments take place without objection. See R. v. Gessleman, 2005ABQB 628, R. v. Wilson, 2004 BCSC 1233, and R. v. Newfoundland Recycling Ltd., [2004] N.J. No. 332 (Prov. Ct.) (QL). For casesinvolving judges retiring, see R. v. L.T.P., 2005 BCSC 97, R. v. Conacher, 2004 SKPC 12, 116 C.R.R. (2d) 55, R. v. Lundrigan (D.J.),2009 SKPC 73, 339 Sask.R. 108, and R. v.

Herbert, 2003 CarswellOnt 8107 (C.J.). 29 As the foregoing brief review of the authorities makes clear, there are lower court cases which accept the proposition thatthe appointment of a judge to a higher court renders them unable to continue proceedings for the purposes of s. 669.2 of the Code. This

position has been commented upon favourably by the Ontario Court of Appeal in Leduc. As to the procedure, no specific mechanismappears to have been adopted, but in many instances, replacement judges are simply assigned, with or without reasons. The cases ofTrang, Hiscock and Humby support the Crown’s contention, with which I agree, that the initial judge was not required to hearsubmissions or issue formal reasons, nor was the Chief Justice before he decided to assign the case to the trial judge. 30 There is no merit to this ground of appeal.

The Trial Judge’s Refusal to Grant an Adjournment of the Trial 31 The appellant’s trial for first degree murder was set to begin on May 1, 2008, almost three years after the shooting. OnApril 29, two days before the trial was to start, the initial defence counsel sought an adjournment because his father was hospitalized,indicating that he would be available in November or December 2008. However, no trial dates were available from the court for that fallterm. Trial dates were available in January 2009, but the initial defence counsel was not available until May 2009.

At the hearing onApril 29, the trial judge agreed to adjourn the start of the trial by one week to May 8. 32 After her ruling on April 29, the appellant indicated that he wanted a different lawyer, and the matter was adjourned toApril 30. At that time, the appellant indicated that while he did not want another lawyer, he also did not want to retain the initial defencecounsel if he would be compromised by personal issues during the trial. On May 6, the initial defence counsel filed a motion requestingan adjournment of the trial or, in the alternative, an order permitting him to withdraw.

He advised the trial judge that his retainer wouldbe terminated if no adjournment was granted. The trial judge ultimately decided not to grant the adjournment, and the initial defencecounsel withdrew. Trial dates were set for January 2009. Subsequently, the appellant retained the defence counsel to act on his behalf atthe trial, which commenced as scheduled in January 2009. 33 The appellant argues that his right to counsel under s. 10(

b) of the Canadian Charter of Rights and Freedoms (the Charter)was violated by the trial judge’s refusal to grant an adjournment that would have permitted the initial defence counsel to continue torepresent him at his trial. He notes that this was the first adjournment that he requested, he acted in good faith and he was not trying toimproperly delay his trial. He also notes that the delay between January 2009, when the trial actually commenced, and May 2009, thedate the initial defence counsel was available, would have only been about four to five months.

In the result, the appellant says, his rightto be represented by counsel of his choice was violated. 34 The Crown responds that the trial judge appropriately balanced the competing interests of the appellant’s right to counsel ofchoice with the effect that delaying the trial for another year would have on the administration of justice. This court, the Crown argues,should only interfere with the trial judge’s discretionary balancing of these rights if the refusal deprived the appellant of a fair trial or theappearance of a fair trial. See R. v. Hazout (2005), (ON CA), 199 C.C.C. (3d) 474 (Ont. C.A.).

The Crownemphasizes that the father’s illness seemed to be of indefinite duration; it was therefore unclear when the initial defence counsel wouldhave been able to represent the appellant at trial.

It cannot be said that the appellant was deprived of a fair trial or the appearance thereofwhen he was able to obtain the services of competent counsel who acted for him throughout the eventual trial. 35 The law is quite clear that, generally speaking, whether to grant an adjournment or not is considered to be a matter withinthe discretion of the presiding judge and “will not be reviewed by the court of appeal unless it is satisfied that the discretion was notexercised properly” (The Honourable R.E.

Salhany, Q.C., Canadian Criminal Procedure, 6th ed., looseleaf (Aurora: Thomson ReutersCanada Limited, 2010), vol. 1, ch. 6 at para. 6.3340). See too, The Honourable Mr. Justice E.G. Ewaschuk, Criminal Pleadings &Practice in Canada, 2d ed., looseleaf (Toronto: Thomson Reuters Canada Limited, 2011), vol. 2, ch. 16 at para. 16:2010. 36 A leading authority is R. v. Beals (E.W.) (1993), (NS CA), 126 N.S.R. (2d) 130 (C.A.), cited withapproval in R. v. Tortora, 2010 BCCA 547 at para. 22, 265 C.C.C. (3d) 264, and R. v. White, 2010 ABCA 66 at para. 17, 252 C.C.C.(3d) 248.

In Beals, Hallett J.A., for the court, listed a number of principles that are applicable where an unrepresented accused appliesfor an adjournment so that he or she can be represented by counsel at trial.

Included in the list are: • the right to counsel is not absolute; • each application for an adjournment must be decided on its own facts; • generally, an accused should not be refused an adjournment if the fact that he is without counsel is not his fault, but that of hiscounsel; • the right of an accused to retain counsel must be exercised honestly and diligently so as not to delay a scheduled trial; and • the scope of review by an appeal court of the exercise of the discretionary power to adjourn a scheduled trial is relatively wide asthe consequences of a refusal may be to deprive an accused of his right to be represented by counsel. 37 As stated in White (at para. 15): Such judicial discretion is reviewable on appeal if it has not been exercised judicially.

The test for appellate review is whether the trialjudge has given sufficient weight to all relevant considerations: Reza v. Canada, (SCC), [1994] 2 S.C.R. 394 …. 38 From this province, and to similar effect, see R. v. Roebuck; R. v. Howdle (1985), (MB CA), 36 Man.R.(2d) 270 (C.A.), and R. v. Tavares (E.), 2001 MBCA 62, 156 Man.R. (2d) 116. In Tavares, it was noted (at para. 12):

Whether an adjournment should be granted or not is a matter that is peculiarly within the province of the trial judge. While it isgenerally recognized that representation of accused by counsel is essential to a fair trial (see R. v. Rowbotham (R.) et al. (1988), (ON CA), 25 O.A.C. 321; 41 C.C.C. (3d) 1 (C.A.)), ordinarily the courts will not interfere in the exercise of such a judicialdiscretion except when it is essential to do so in the interests of justice. 39 Finally, in R. v.

Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, the Supreme Court, writing generally about discretionarydecisions made during the course of a trial, noted (at para. 117): The decision to grant a stay is a discretionary one, which should not be lightly interfered with: “an appellate court will be justified inintervening in a trial judge’s exercise of his discretion only if the trial judge misdirects himself or if his decision is so clearly wrong as toamount to an injustice” (Tobiass, [ (SCC), [1997] 3 S.C.R. 391], at para. 87; Elsom v. Elsom, (SCC),[1989] 1 S.C.R. 1367, at p. 1375).

Furthermore, where a trial judge exercises her or his discretion, that decision cannot be replacedsimply because the appellate court has a different assessment of the facts …. 40 Or to put it another way, see R. v. Smith (2001), (ON CA), 161 C.C.C. (3d) 1 (Ont. C.A.), leave toappeal to S.C.C. dismissed, [2002] S.C.C.A. No. 156 (QL) (at para. 48): ... [A]n appellate Court will not interfere with the exercise of [the trial judge’s] discretion unless he has failed to exercise it in a judicialway, or unless the refusal to grant an adjournment has resulted in a miscarriage of justice. 41 In R. v.

McCallen (1999), (ON CA), 131 C.C.C. (3d) 518 (Ont. C.A.), relied on by the appellant,O’Connor J.A., as he then was, writing for the court, emphasized the importance of a person accused of a serious criminal offence beingrepresented by counsel of one’s own choice. However, he also wrote that (at para. 40): ... [T]he right to retain counsel of choice is not an absolute right; it is obviously limited to those counsel who are competent to undertakethe retainer and are willing to act.

There are two further limitations on the right[s] that are in issue on this appeal: the first is therequirement that counsel be available to represent the client within a reasonable period of time and the second is the requirement thatcounsel be free of any disqualifying conflict of interest. 42 And to similar effect (at para. 45): ....

The emphasis is on the reasonableness of the delay involved in accommodating the accused’s choice; if the counsel of choice is notavailable within a reasonable time, then the rights of the accused must give way to other considerations and the accused will be required,if he or she chooses to be represented, to retain another counsel who is available within a reasonable period of time …. 43 In the more recent case of Hazout, as in McCallen, the accused argued that the trial judge erred in refusing his request foran adjournment to a date when his counsel of choice was available.

Gillese J.A., writing for the majority, observed that while it wouldhave been preferable had the trial judge granted the adjournment, nonetheless, “[a]n appellate court should only interfere with a trialjudge’s balancing of these rights if the refusal of an adjournment deprives an accused of a fair trial or the appearance of a fair trial” (atpara. 31). In the result, the accused’s appeal was dismissed. 44 Again, to similar effect, is the decision of the Ontario Court of Appeal in R. v. Nichols (2001), (ON CA),46 C.R. (5th) 294, leave to appeal to S.C.C. dismissed, [2001] S.C.C.A.

No. 508 (QL), where the facts, in some ways, were quite similarto Hazout. Here again, the court, after noting that it would have been preferable had the trial judge granted the adjournment, was notpersuaded that the trial judge’s ruling deprived the accused of a fair trial or the appearance of a fair trial. In Nichols, the Crown, whilethe accused was unrepresented, called a number of witnesses whose evidence in total was neither controversial nor significant.

Thereafter, the trial was adjourned and when it resumed, the accused was represented. 45 In her reasons for decision, the trial judge was clearly aware of the delicate and serious issue before her. She acknowledgedthe hardship that the initial defence counsel faced in maintaining professional standards while dealing with serious personal issues.

Shealso took into account that he was unable to indicate when his father’s situation might improve, if at all, and accepted that because of hisfather’s illness, the “emotional pressure and the time pressures that that brings, he is not in a position, he feels, to carry on with the trialthrough to its completion.” 46 She also noted that the case turned on the issue of identification and that there were civilian witnesses, including materialwitnesses who were out on bail.

She stated: But what I do have to weigh is the nature of this case, the length of time that it’s been outstanding, the number of people involved, thenature of the evidence, that is that a great portion of it is eyewitness identification evidence, and in the end, I have to balance what is theappropriate thing to do. 47 In the end, she denied the adjournment.

48 I am not prepared to interfere with the exercise of the trial judge’s judicial discretion and her determination of where the balance fell in this particular instance.

While it cannot be disputed that the entitlement of a person accused of a serious criminal offence to be defended by a counsel of one’s choice is very important, so is the public interest in having serious criminal cases heard in an expeditious manner ( McCallen at para. 46 ). 49 In this instance, the initial defence counsel was asking for an effective adjournment of one year in circumstances where three years had already elapsed from the time the homicide occurred. It was considered to be an identification case, and there were difficulties with some of the potential witnesses.

In the end, a delay in excess of six months occurred due to the court’s scheduling issues. In the meantime, the appellant was able to retain experienced criminal defence counsel. 50 The burden is on the appellant to show that he was deprived of the right to make full answer and defence, which constituted a miscarriage of justice ( Beals ), though there is no need to show actual prejudice ( McCallen ). Considerable deference, as we have seen, is to be shown toward a discretionary decision such as this one.

While it may well be that other judges might have come to a different conclusion, it is clear that the trial judge was fully aware of, and did take into account, the multitude of factors, unique to this particular case, that she needed to consider. In my opinion, she did not act unreasonably or injudiciously in her conclusion that an adjournment should not be granted. There was no miscarriage of justice. 51 I would dismiss this ground of appeal.

Crown Disclosure 52 The appellant argues that the trial judge erred in ruling that he was not entitled to full and complete disclosure regarding Andrea and Erica Erickson’s admission and withdrawal – a short time later – from the Witness Protection Program. 53 The appellant alleges that he was caught between different approaches to disclosure taken by the initial judge and the trial judge. He says that the initial judge ordered the disclosure as requested, subject to Crown claims of privilege. The trial judge then “pulled back” the disclosure order made by the initial judge.

The effect, he says, was to reverse the original disclosure order, resulting in prejudice to him.

Background 54 Some background is necessary to provide the context for the trial judge’s decision. 55 The appellant sought pre-trial disclosure of numerous matters, including the Erickson sisters’ involvement in the Witness Protection Program and all documentation in connection therewith. 56 On January 25, 2007, in a preliminary application, the initial judge instructed himself that the parameters underpinning the obligation on the Crown for disclosure were very broad, the test being whether the information sought had a “reasonable possibility … of … being useful to the accused,” and that the threshold requirement for disclosure was therefore quite low.

In the result, he ordered disclosure to him of all records pertaining to the Erickson sisters’ involvement in the Witness Protection Program, including file documents and memoranda relating to the admission or withdrawal of the sisters from the Program and an unedited copy of the expense receipts previously provided in edited form to the defence. The Program’s protocol was to be provided later.

The order with respect to the Program’s files was subject to the Crown producing witnesses to demonstrate why disclosure should not be made. 57 When the matter came back before the court on February 12, 2007, counsel for the City of Winnipeg (representing the Winnipeg Police Service) addressed the court and argued that the files involving the Program’s security issues were not part of the investigation process and therefore not relevant.

Alternatively, with respect to any documents that might be relevant, public interest privilege was claimed; it was suggested that an edited version of the documents be produced to the Crown. The City of Winnipeg solicitor and the Crown took the position that the records sought were third party records, which were irrelevant and protected by s. 37 of the Canada Evidence Act , the relevant parts of which read: Objection to disclosure of information 37.

(1) Subject to sections 38 to 38.16, a Minister of the Crown in right of Canada or other official may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest. Disclosure order

(4.1) Unless the court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a specified public interest, the court may authorize by order the disclosure of the information. Disclosure order

(5) If the court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a specified public interest, but that the public interest in disclosure outweighs in importance the specified public interest, the court may, by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any encroachment upon the specified public interest resulting from disclosure, authorize the disclosure, subject to any conditions that the court considers appropriate, of all of the information, a part or

summary of the

information, or a written admission of facts relating to the information. Prohibition order

(6) If the court does not authorize disclosure under subsection (4.1) or (5), the court shall, by order, prohibit disclosure of theinformation. 58 The proceedings were eventually adjourned in order for the defence to bring a motion for disclosure. 59 When the defence motion came on for hearing on December 4, 2007, the initial judge had been appointed to the Court ofAppeal and the trial judge was presiding. An argument ensued over whether the City had standing to make submissions. Standing wasgranted over the objection of the initial defence counsel.

One of the key issues was whether or not the initial judge’s order should beinterpreted to mean he had ruled on relevance for all documents, or whether relevance for some documents remained to be demonstrated. The Crown argued that some of the documents in the Program’s files were not relevant and others were protected by privilege. Theappellant wanted access to the Program protocol and wanted to be able to cross-examine the Erickson sisters in this respect. 60 Eventually, the trial judge decided that she would personally examine the unedited documents, and the relevant witnesseswould be called the next day.

Since she was of the view that relevance had not been unequivocally decided by the initial judge, the issuewas still subject to argument. 61 Over the next two days, Sgt. Hudson of the Winnipeg Police Service and Richard Lobban, a Justice official, were producedon behalf of the Program and were cross-examined and re-examined by the initial defence counsel. Sgt. Hudson confirmed that theErickson sisters terminated their involvement with the Witness Protection Program 11 days after entering it. Disclosure of certainreceipts was not opposed providing certain portions could be blacked-out.

Richard Lobban testified that many of the documents withheldfrom disclosure contained highly confidential information. Both witnesses indicated that no discussion took place with either sister withrespect to the matters that brought them into the Program. 62 Argument took place several weeks later. The City of Winnipeg submitted that the documents should not be disclosedunder s. 37(6) of the Canada Evidence Act and claimed informant privilege, solicitor-client privilege and, most importantly, that thedocuments did not meet the standard of relevance.

The Crown argued that all documents sought were irrelevant for the issues at trial. Public interest privilege was also in issue. The appellant concluded his submissions by emphasizing that the relevance of the disclosurematerial related to the credibility of the Erickson sisters as witnesses for the Crown. What transpired involving the sisters in theProgram, he argued, was important to the issue of their character. Decision of the Trial Judge 63 The trial judge’s decision was issued on April 4, 2008, some months later (2008 MBQB 96, 232 Man.R. (2d) 45). Shedistinguished Crown disclosure generally (R. v.

Stinchcombe, (SCC), [1991] 3 S.C.R. 326) from obligations wheredocuments are in the hands of a third party. Any documents not gathered for the purpose of the criminal proceedings, the trial judgeconcluded, were in possession of third parties. That being so, the proper procedure to be followed was that mandated by the SupremeCourt in the decision of R. v.

O’Connor, (SCC), [1995] 4 S.C.R. 411. 64 The trial judge found that the Program protocol itself was in the possession of the Crown, as were all Program documentsturned over to the Crown, but that files in possession of the Program were documents not belonging to the Crown and hence inpossession of a third party; with respect to these documents, the test for disclosure was relevance. The trial judge rejected the initialdefence counsel’s insistence that relevance had already been determined or that the initial judge had determined that the documents werein the possession of the police.

The trial judge, having examined the documents, concluded that those relating to any benefits given bythe Crown to the Erickson sisters were relevant, as were details of any discussions relating to the investigation or their testimony, anddisclosure was ordered. All other documents were found to be irrelevant; that is, there was no “reasonable possibility that theinformation [was] logically probative to an issue at trial” (O’Connor at para. 22). 65 The trial judge decided that the Program protocol could not be protected from disclosure under public interest privilege.

Asfor notes from meetings between Crown attorneys and various witnesses, she held that they fell under work-product privilege and weretherefore protected from disclosure. With respect to the editing of the receipts, the Crown was directed to prepare a schedule. Appellant’s Position 66 In his argument before this court, counsel for the appellant reminded the court that 65 pages of the transcript of the cross-examination of Sgt. Hudson were not transcribed (of which more later). 67 He repeated his argument that the initial judge already decided the relevance issue in his favour.

In any event, he says thatthe trial judge ignored the fact that the Erickson sisters entered, then left the Witness Protection Program under unexplainedcircumstances, and gave conflicting statements to the police. The appellant refers to R. v. Chan, 2002 ABQB 287, 164 C.C.C. (3d) 24, R.v. Coombs (K.A.), 2003 ABQB 434, 335 A.R. 236, R. v. Smith (M.G.), 2007 ABQB 172/2007 ABQB 187, 419 A.R. 179, R. v. Bottineau(2005), (ON SC), 32 C.R. (6th) 70 (Ont. S.C.J.), R. v. T. (L.A.) (1993), (ON CA), 84 C.C.C. (3d)90 (Ont. C.A.), R. v. Goulbourne, [2007] O.J. No. 3704 (S.C.J.) (QL), R. v.

Lee (T.R.) et al., 2007 ABQB 454, 426 A.R. 315, R. v.Horzempa (J.G.), 2005 MBQB 282, 199 Man.R. (2d) 84, R. v. Marriott (8 February 2006), Winnipeg (Man. Prov. Ct.), and an excerptfrom Report of the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell (2007) (Commissioner:

The Honourable Patrick J. LeSage, Q.C.), as illustrations of the importance courts at all levels now attach to the fullest Crown disclosure. The absence of disclosure, the appellant says, deprived him of potentially critical information.

Further, he argues that the trial judge also erred by not adjourning the hearing to determine if the Erickson sisters would consent to the release of their records. 68 He also asserts that the records in question were first party (not third party) records and therefore subject to the Stinchcombe disclosure regime, where privacy is unlikely to defeat production of records once relevance is shown. See R. v. McNeil , 2009 SCC 3 at para. 41 , [2009] 1 S.C.R. 66. As well, he says that public interest privilege does not apply and work-product privilege was wrongfully invoked.

Finally, he argues that he does not seek work-product, but disclosure of what was said to and by the prosecution witnesses during meetings with the Crown or officials involved in the Witness Protection Program. Conclusion 69 I agree with the Crown’s argument that the trial judge followed the orders of the initial judge to the letter. The initial judge directed disclosure of all records, subject to the Crown’s production of witnesses who could show why disclosure should not be made. This is what happened.

Once the trial judge correctly decided that the documents were in the hands of a third party not responsible for prosecuting the appellant, the obligation was then on the appellant to demonstrate the relevance of the undisclosed documents. Relevance was defined by appellant’s counsel as relating to the credibility of the Erickson sisters, and the trial judge’s order reflects this. She personally examined the documents and concluded that all Program documents not encompassed by the earlier disclosure order were irrelevant. As she noted in her reasons for decision (at para. 73): ....

There were no conversations between Lobban or Hudson and the Ericksons about benefits promised but not given, or the investigation or their testimony. There is no suggestion that the Ericksons asked for benefits that were denied or that either of them were untruthful or at risk of being expelled. 70 Without relevance to the credibility of the Erickson sisters, further disclosure would be of no assistance to the appellant or the court. The refusal of the trial judge to order further disclosure did not deprive the appellant of his right to make full answer and defence. 71 This ground of appeal is without merit.

Search Warrant Issues 72 On the strength of information received primarily from Busko, who directed Sgt.

Hudson to a location adjacent to the residence co-owned by the appellant and another individual, the police sought and obtained a search warrant for “the premises … at 39 Southlawn Stroll.” The Information to Obtain in support of the request for the search warrant stated that “things … which will provide evidence of and relating to the said offence are concealed in the premises of 39 Southlawn Stroll.” In the appendix filed in support of the Information to Obtain, the police officer wrote: I am requesting a Criminal Code Search Warrant to search the residence of 39 Southlawn Stroll Winnipeg Manitoba, including any outbuildings and garbage containers on the property. ....

I believe, that there are reasonable and probable grounds to believe that Tam LE has stashed the firearm and clothing used during the murder of Miguel MONOZ [ sic ] in his residence 39 Southlawn Stroll Winnipeg. …. 73 When the police executed the search warrant and found no one at home, a locksmith was directed to pick the lock on the front door. While this was taking place, a senior police officer went into the backyard and, upon doing so, noticed near the rear fence a large, granite rock; it was evident that the rock had recently been moved out of the dirt in the flower bed.

The officer was suspicious, thinking something of significance might be under the rock, although, he testified, it did not occur to him that it might be the gun. Using a pitchfork that was nearby, he turned the rock over. Having done so, he flipped over with the pitchfork what he thought was a black stick and discovered it was a handgun (as it turned out, the murder weapon).

Another senior officer at the scene was consulted and he telephoned yet another officer, who was considered to be knowledgeable about warrants, and a lengthy discussion took place over the meaning of the word “premises,” as used in the warrant. They eventually concluded that the warrant included the yard, whereupon it was decided to seize the gun, which was photographed and removed from the soil. At this time, it was noticed that the bullet clip was missing.

A police officer ran his fingers through the soil and found the clip about four inches or so below the surface of the ground and less than a foot away from where the gun was found. 74 The trial judge concluded that the scope of the warrant permitted the police to search the flower bed in the yard and rejected the argument that the police required a second warrant to disturb the soil of the flower bed. As such, she concluded that no Charter breach under s. 8 was established, and the evidence was not excluded.

Scope of the Search Warrant – Meaning of “Premises” 75 The search warrant was obtained pursuant to s. 487(1) of the Code , which, upon reasonable grounds, authorizes the search of a building, receptacle or place. The terms “building,” “receptacle” or “place” are not defined in the Code , nor is the word “premises,” which does not appear in either s. 487 or the accompanying Form 1.

76 The starting point for consideration of the scope and reach of the warrant is R. v. Caslake, (SCC), [1998]1 S.C.R. 51. This decision makes it clear that (at para. 12): …. … [A]gents of the state can only enter onto or confiscate someone’s property when the law specifically permits them to do so. Otherwise, they are constrained by the same rules regarding trespass and theft as everyone else. …. … [T]he scope of the search islimited to the area and to those items for which the law has granted the authority to search. To the extent that a search exceeds theselimits, it is not authorized by law. 77 A useful

summary of the current state of the law can be found in the decision of R. v. Charles, 2010 QCCQ 9178, where thecourt noted (at paras. 23, 36): In short, protection of privacy rights requires that the location of the premises to be searched under a warrant be sufficiently oradequately designated. A warrant that designates in vague or incorrect terms the place to be searched will fail to guard against potentialabuse from the police or confer too much discretion to the officers executing the warrant.

In short, practical accuracy rather than technical precision controls the determination of whether a search warrant adequately describesthe premises to be searched. 78 Academic authorities are to the same effect and refer to the “curtilage” principle. In Scott C. Hutchison, James C. Morton& Michael P.

Bury, Search and Seizure Law in Canada, looseleaf (Toronto: Thomson Reuters Canada Limited, 2005), vol. 1, ch. 16, itis noted (at pp. 16-31, 16-32): As the common law consistently recognized that authority to search must be strictly limited to the precise structure or place set out in theorder (which would only include the “curtilage” [from the footnote: Curtilage generally includes all lands immediately associated with abuilding identified in the warrant]), a search of a dwelling-house does not import authority to search any outbuildings, garages, sheds,barns, receptacles, lockers, etc., at the same location as the principal residence. …. . . . . .

Perimeter searches, unintrusive inspections around dwelling houses, are ordinarily caught by the curtilage rule – walking around insomeone’s yard is usually the legal equivalent of walking around their home. …. [emphasis added] 79 Similarly, James A. Fontana & David Keeshan, The Law of Search and Seizure in Canada, 8th ed. (Markham: LexisNexisCanada Inc., 2010), describe the law regarding location specificity in search warrants as follows (at pp. 87-88): The search warrant process is location-critical and a high degree of precision is expected in both the supporting documents and thewarrant itself. . . . . . ….

What constitutes a “premises” in one sense may include more area and buildings in another, incorporating the “curtilage” principle. [emphasis added] 80 An excellent description of the curtilage doctrine is found in R. v. M. (N.) (2007), (ON SC), 223 C.C.C.(3d) 417 (Ont. S.C.J.), where there is an extensive discussion of the concept. Hill J., in his review, cited the Ontario Court of Appeal’sdecision in R. v.

Lauda (1999), (ON CA), 136 C.C.C. (3d) 358, where Moldaver J.A. noted that, at common law, “thehouse, including the area immediately surrounding it” (at para. 45), was referred to as the curtilage. 81 There is considerable American law dealing with the concept of curtilage in the context of search warrants. There, thecurtilage principle has been developed to extend Fourth Amendment protections to areas outside one’s house. While some caution isrequired in applying the unique jurisprudence surrounding the American Fourth Amendment, the development of the concept of“curtilage” is nonetheless useful for us.

As American Jurisprudence 2d notes (at para. 69): The areas where people have constitutionally protected legitimate expectations of privacy include a person’s home and the curtilagesurrounding it. The curtilage of a residence means the land immediately surrounding and associated with the home. For purposes of theFourth Amendment, “curtilage” is the area to which extends the intimate activity associated with the sanctity of a person’s home and theprivacies of life. ….

A dwelling’s curtilage for Fourth Amendment purposes is generally the area so immediately and intimatelyconnected to the home that within it, a resident’s reasonable expectation of privacy should be respected. …. See, as well, the comment by Kathryn Duncan Holt, Case Comment (1980) 3 U. Ark. Little Rock L.J. 125. 82 In American law, the curtilage of a dwelling is often juxtaposed with open fields, which are not protected by the Fourth

Amendment, i.e., they can be searched without a warrant. 83 The issue here is whether the warrant to search the “premises” authorized the police to dig around in the flower bed. Giventhe lack of an express statutory definition for the word “premises,” dictionary

definitions are helpful. Black’s Law Dictionary, 9th ed.,defines premises as “[a] house or building, along with its grounds.” It further defines the word “curtilage” as “[t]he land or yardadjoining a house, usu. within an enclosure.” This definition has been cited in a number of Canadian cases, including R. v. Baker (2003),107 C.R.R. (2d) 226 (Ont. C.J.), Walsh et al. v. Newfoundland (Minister of Finance) (1996), (NL SC), 143 Nfld. &P.E.I.R. 29 (Nfld. S.C. (T.D.)), and R. v. Robertson and Kereluk, 2010 BCPC 2.

The Oxford Dictionary of English defines curtilage as“an area of land attached to a house and forming one enclosure with it.” 84 As to the meaning of “premises,” the Crown relies upon the American case Norman v. State of Arkansas, 931 SW.2d 96(Ark. Sup. Ct. 1996). At p. 98, the court cited and relied upon Wayne R. LaFave, Search and Seizure: A Treatise on the FourthAmendment, 3d ed. (1996), which stated: …. Similarly, if the warrant authorizes a search of “premises” at a certain described geographical location, buildings standing on thatland may be searched.

This means that if the place to be searched is identified by street number, the search is not limited to the dwellinghouse, but may also extend to the garage and other structures deemed to be within the curtilage and the yard within the curtilage. 85 For the historical meaning of the word “premises,” the Crown cites the English case of Gardiner v. Sevenoaks RuralDistrict Council, [1950] 2 All E.R. 84 (K.B.), where Lord Goddard C.J. wrote (at p. 85): …. “Premises” is, no doubt, a word which is capable of many meanings. How it originally became applied to property is, I think,generally known.

It was from the habit of conveyancers when they were drawing deeds of conveyance referring to property andspeaking of “parcels”. They set out the parcels in the early part of the deed, and later they would refer to “the said premises,” meaningstrictly that which had gone before, and gradually by common acceptance “premises” became applied, as it generally is now, to houses,land, shops, or whatever it may be, so that the word has come to mean generally real property of one sort or another. …. 86 In Maunsell v.

Olins, [1975] A.C. 373 (H.L.), Viscount Dilhorne said “‘[p]remises’ is an ordinary word of the Englishlanguage which takes colour and content from the context in which it is used. …. It has, in my opinion, no recognised and establishedprimary meaning” (at p. 383). 87 The meaning of the word “premises” has also been considered in a number of non-criminal cases. For example, in Loukraset al. v. The Queen (1974), 7 L.C.R. 240, the Trial Division of the Federal Court addressed the meaning of premises in the context of anexpropriation case.

After referring to a number of English authorities, Urie J. concluded that “the word [“premises”] normally meanssomething greater than simply a house but also probably something less than the whole of the property” (at p. 270). See, as well,Midland (Town of) v. Fred D’Silva Enterprises Ltd. et al. (1977), (ON CA), 16 O.R. (2d) 657, where the OntarioCourt of Appeal was required to consider the meaning of the word “premises” when interpreting several bylaws.

Brooke J.A., for thecourt, opined that “[t]his term is colloquially used to mean buildings, but it is frequently used in the broader sense to mean landswhereon buildings are erected and lands immediately surrounding them” (at p. 663).

More recently, in Baker (reversed on other grounds,[2004] O.T.C. 148 (S.C.J.)), Justice Morneau held that “the broad term, ‘premises’ would include a private residence, barns, outbuildingsand the land surrounding the same” (at p. 233). 88 In terms of authority relevant to the specific factual circumstances here, I am not aware of any case where the police haveobtained a warrant to search the “premises” and an accused has successfully challenged their ability to search in flower beds or otheropen areas of the adjacent yard. Of the authorities relied on by the parties, R. v.

Tesfai (E.) (1995), (NS SC), 148N.S.R. (2d) 93 (S.C.), is most factually similar. In that case, the police found crack cocaine under the patio of the accused’s duplex andtwo pill bottles containing crack cocaine “stashed near rocks a few feet from the patio” (at para. 1). But in Tesfai, the police only had awarrant to search the accused’s dwelling-house.

After noting the important distinction between warrants for premises and those fordwelling-houses, MacDonald J., as he then was, concluded that the patio was part of the dwelling-house and the evidence from or underthe patio was admissible, but that the search warrant did not extend to any area beyond the patio. Notwithstanding, all of the evidencewas eventually admitted under s. 24(2) of the Charter. See, as well, R. v.

Traimany (P.), 2011 MBQB 15, 261 Man.R. (2d) 101(sentence appeal by the Crown pending), which is also factually similar to the case at bar, where evidence (drugs and money) dug up in abackyard was also admitted. 89 In Robertson, earlier referred to, the place to be searched was identified in the warrant as the residence at 21714 DonovanAvenue, later referred to as the “said premises.” Woods P.C.J. held that “[t]he ‘grounds’ … form part of the ‘premises’ and, taking thatview, police were free to travel on and over [the] whole of the back yard grounds in the course of conducting their search and to makeobservations” (at para. 26).

In the result, the evidence seized there was ruled admissible. 90 The appellant relies on the decision of R. v. Kelly (1999), (NB CA), 132 C.C.C. (3d) 122 (N.B.C.A.),where the police found freshly uprooted marihuana plants under camouflage netting along the perimeter of a clearing about 30 feet fromthe accused’s residence. However, this ground search was conducted without a warrant. The court concluded that the clearing was partof the curtilage of the accused’s dwelling-house – and hence there was an expectation of privacy. The ground search was thereforeunreasonable.

Notwithstanding, the evidence obtained was ultimately admitted under s. 24(2) of the Charter. 91 For other cases that are factually similar to this one, but where a warrant was not obtained, see R. v. Marceau, [1987] B.C.J.No. 1252 (Co. Ct.) (QL), aff’d [1988] B.C.J. No. 2351 (C.A.) (QL), and R. v. Bradley, [1999] B.C.J. No. 1286 (S.C.) (QL). In these twoinstances, the evidence was also ultimately admitted under s. 24(2) of the Charter. 92 As I have noted, the warrant in the case at bar was for “the premises of [the appellant] at 39 Southlawn Stroll.” It was not a

dwelling-house warrant. Instead, one might refer to it as a “civic address warrant.” As noted in the discussion of Tesfai above, that case involved a dwelling-house warrant, not a warrant for the premises, as is the case here. Similarly, in the case of R. v. Chuhaniuk , 2010 BCCA 403 , 261 C.C.C. (3d) 486, relied on by the appellant, the warrant was for the accused’s residence. 93 In my opinion, a review of the case law leads to the conclusion that the term “dwelling-house” is narrower than the term “premises.” This also accords with common sense.

In any event, even if it could be said that the warrant here was restricted to the appellant’s residence at 39 Southlawn Stroll, the curtilage principle can properly be relied upon to extend the scope of the warrant to include the land immediately surrounding the building, including the flower bed in the contiguous fenced backyard. 94 As noted earlier, I have been unable to find any cases involving a search warrant for “premises” identified by a civic address where a search of the grounds surrounding the house has been successfully challenged. Robertson is the authority closest on point.

Interestingly, in all of the factually similar cases reviewed above, the evidence was admitted either directly or pursuant to s. 24(2) of the Charter . 95 In my opinion, it can safely be said that in Canada, a warrant for premises identified by a civic address includes, at the very least, the curtilage or grounds around the primary or main building on the property.

On the facts here, this includes the flower bed located in the back of the fenced-in area, which the exhibits indicate could fairly be described as typical of many residential backyards found in the City of Winnipeg. 96 The warrant here, in my opinion, extended to the flower bed. The search was not akin to a warrantless perimeter search or other warrantless entry into the appellant’s yard, as the appellant argued. 97 Regarding the second issue of whether it was necessary for the police to obtain another warrant before conducting a physical search of the flower bed, as the Crown notes in its factum: ….

The Appellant does not explain why the disruption or digging (minor as it was) fundamentally differs from any other aspect of a search, which will normally entail intrusion into, or exposure of, hidden or covered spaces. He also fails to provide any explanation or authority for the proposition that on the facts of this case, the specific authorization provided by a search warrant must somehow yield to the residual or miscellaneous authorization provided in a general warrant. …. 98 The Crown relies on the old Supreme Court of Canada case of Sleeth v.

Hurlbert (1896), 1896 CanLII 70 (SCC) , 25 S.C.R. 620, for the proposition that multiple warrants are not required for searches of multiple places. To the same effect, see R. v. Reyklin , [1999] B.C.J. No. 1972 (S.C.) (QL) . 99 Upon a review of authorities involving s. 487.01 of the Code , I am unable to find any instance where that provision was used to authorize a search of the kind undertaken here. This, as we know, is the very fact relied on by appellant’s counsel in his argument that a warrant was required in the unusual circumstances.

In my opinion, a much more likely explanation is that where a s. 487 search warrant is already in place, the police are not required to obtain a second warrant to enable them to disturb the soil around an accused’s home where the actual location of the digging is within the scope of the warrant. As described in Sleeth and Reyklin , a second warrant authorizing a search of the flower bed here would have been “absurd” and “superfluous.” 100 It is therefore my conclusion that: (1) the search warrant extended to the flower bed in the backyard of the property where the handgun was found, either through an

interpretation of the term “premises” or an application of the curtilage doctrine; and (2) a second warrant was not required in order for the police to lawfully disturb the soil (that is, dig up the handgun clip from the flower bed). Scope of the Search Warrant – Seizure of Items Not Specifically Identified in the Warrant 101 The search warrant obtained for 39 Southlawn Stroll identified the items to be searched for as a handgun, a sweatshirt and a ball cap.

The affidavit filed in support of the Information to Obtain did not seek a warrant to search for documentation linking the appellant to the targeted premises, likely because the officer seeking the warrant stated in the Information to Obtain that he had conducted a real property tax check and had identified the appellant as one of the property’s owners.

When executing the warrant, the police seized, in addition to the handgun and a sweatshirt, several documents located on the top of the refrigerator in the kitchen of the house, which included documentation such as the tax assessment and a recent hydro account, all of which connected the appellant to the residence. 102 The appellant argued before the trial judge that the search warrant did not permit the police to seize the documents, and therefore there was a violation of his s. 8 rights. The trial judge rejected this argument, concluding that the various documents in question fell within s. 489(1) (

c) of the Code , which provides as follows: Seizure of things not specified 489.

(1) Every person who executes a warrant may seize, in addition to the things mentioned in the warrant, any thing that the person believes on reasonable grounds . . . . .

(

c) will afford evidence in respect of an offence against this or any other Act of Parliament. 103 Before this court, the appellant argued that the trial judge erred in rejecting his argument that the plain view doctrine did notapply because the words of the documents were not in plain view and therefore the police, in effect, conducted an unauthorized search. The Crown relied, as did the trial judge, on s. 489(1)(c), as well as the plain view doctrine. 104 Of assistance on this issue is the

summary of the law taken from Fontana & Keeshan. In particular: Where it was alleged that the search was overly broad in that some items may have been seized that fell outside the described items to beseized, the New Brunswick Court of Appeal held that an “oversearch” could not affect the initial jurisdiction to authorize the warrant. The appropriate remedy lay under s. 490 of the Code: R. v. Tomah [(1996), (NB CA), 183 N.B.R. (2d) 232 (C.A.),leave to appeal to S.C.C. dismissed, [1997] S.C.C.A.

No. 81 (QL)]. [p. 103] Historically, a common difficulty facing an officer whose duty was to execute a search warrant, was whether or not he could seize goodsother than those specifically described on the face of the document. The additional goods discovered might pertain to a different kind ofoffence altogether or to an offence related to the one which is the reason for his search. [p. 210]

Section 489 is an answer to this problem, authorizing any person executing a warrant (implicitly under any statute or section) to seize, inaddition to the goods specified in the search warrant, anything that the person believes on reasonable grounds has been obtained by orhas been used in the commission of an offence, or which will afford evidence in respect of an offence. …. [p. 211] Apart from the expanded power given to the officer under s. 489, the additional prospect of the “plain view” doctrine arising in thecourse of a search under warrant remains a possibility.

The provisions of s. 489, and the test set out therein, are quite distinct from whatis normally taken into account on “plain view”. …. [p. 213] There is no requirement [in s. 489] that the thing be found in plain view, …. …. Even at common law, the plain view doctrine confers aseizure power not a search power, and does not permit an exploratory search to find other evidence: R. v. Fawthrop [(2002), (ON CA), 166 C.C.C. (3d) 97 (Ont.

C.A.)]. [p. 213] 105 With respect to the plain view doctrine, the authors note (at p. 670): “Plain view” occurs when items fall into the view of an officer who has a right to be in the position he is in to have the view he has had;and such items have been held to be subject to seizure. When an officer finds such evidence – contraband, stolen property or crime evidence – unexpectedly in the course of his duties, incircumstances where it is at once obvious and visible without positive action on the officer’s part to make it observable, he has the rightto seize it. .... 106 Section 489(1)(

c) contains the phrase “will afford evidence in respect of an offence.” A virtually identical phrase (“willafford evidence with respect to the commission of an offence”) appears in s. 487(1)(

b) of the Code. In CanadianOxy Chemicals Ltd. v.Canada (Attorney General), (SCC), [1999] 1 S.C.R. 743, Major J., writing for the court, opined as follows with respectto the meaning of the phrase in s. 487(1)(b) (at para. 15): On a plain reading, the phrase “evidence with respect to the commission of an offence” is a broad statement, encompassing all materialswhich might shed light on the circumstances of an event which appears to constitute an offence.

The natural and ordinary meaning ofthis phrase is that anything relevant or rationally connected to the incident under investigation, the parties involved, and their potentialculpability falls within the scope of the warrant. 107 There can be no doubt that the police, when executing a search warrant for specific items like guns or clothing, cannot riflethrough personal papers at their discretion (see Re Gillis and The Queen (1982), (QC CS), 1 C.C.C. (3d) 545 at 555(Qc. S.C.)). Nonetheless, there are a number of cases where the seizure of documents not identified in a search warrant has been upheld(see R. v.

Budai, [1995] B.C.J. No. 1091 (S.C.) (QL), R. v. Murray and Naples, 2007 BCSC 1480, and R. v. Masterson, [2009] O.J. No.2868 (S.C.J.) (QL)). 108 With respect to the plain view doctrine, it is important to recall that s. 489 and the plain view doctrine are not co-extensive(see R. v. Spindloe, 2001 SKCA 58 at para. 42, 154 C.C.C. (3d) 8). 109 In Spindloe, Jackson J.A., writing for herself on this issue, noted that “[o]ver seizure, in and of itself, however, does notchange a seizure which would be otherwise reasonable into one which is unreasonable” (at para. 52).

With respect to the s. 24(2)analysis flowing from a breach of s. 8, she observed that “a Court would be reluctant to admit evidence unreasonably seized if theevidence is not necessary to make out the offence charged” (at para. 56). 110 While it certainly would have been possible for the search warrant to have been more clearly worded, it is essential to put thedisputed evidence in perspective. It is apparent that the documentation seized from on top of the fridge had very little, if anything, to dowith the appellant’s eventual arrest and conviction.

Before the warrant was even issued, the police had evidence that he co-owned theproperty.

111 In this context, a particularly helpful decision is the Ontario Court of Appeal’s judgment in R. v. Bottineau, 2011 ONCA194, 269 C.C.C. (3d) 227. In this instance, one of the issues on appeal was the admissibility of the accused’s journals, which were notspecifically included within the search warrant issued.

Counsel for Bottineau took the position that the police did not have authority toseize the journals, that it was a serious breach of s. 8 and the evidence should therefore be excluded under s. 24(2) of the Charter. 112 Interestingly, the Ontario Court of Appeal, after reviewing the trial judge’s rulings, found that it was not clear whether theseizure of the journals was acceptable under s. 489; for the purposes of the judgment, the court assumed that the journals were notproperly seized pursuant to s. 489(2) of the Code and that they should have been excluded under s. 24(2).

Nonetheless, the court had nohesitation in applying the curative provision of the Code (s. 686(1)(b)(iii)), noting that a “single excerpt from the journals was but a smalldrop in a sea of evidence” (at para. 83). 113 In my opinion, the trial judge was right to conclude that the documents in question were properly seized under s. 489(1)(c)of the Code. CanadianOxy Chemicals provides clear authority for a broad

interpretation of this

section to include documents such as theones in issue in this case. In any event, I would have no hesitation, if it were necessary to do so, to apply the proviso in s. 686(1)(b)(iii)of the Code as the evidence, even if wrongly admitted, could have had no effect on the eventual outcome of the trial. Given this result, Iwill refrain from commenting on the application of s. 24(2) of the Charter.

The Facial Validity of the Search Warrant 114 The appellant argues that he was entitled to a voir dire to challenge the validity of the search warrant; instead, the initialjudge proceeded directly to hear submissions on why a voir dire was needed. 115 The Crown’s answer, with which I agree, is that it is well settled that there is no entitlement to a voir dire to challenge thevalidity of a search warrant or, indeed, even to cross-examine the informant on a search warrant – an accused must first persuade thepresiding judge that there is a legitimate basis to challenge its validity.

Furthermore, the decision to permit a challenge to a searchwarrant is a matter of judicial discretion and entitled to considerable deference. See R. v. Garofoli, (SCC), [1990] 2S.C.R. 1421, R. v. Bains, 2010 BCCA 178, 254 C.C.C. (3d) 170, and R. v. Wilson (N.R.), 2011 BCCA 252, 305 B.C.A.C. 254.

TheWilson case also confirms that a search warrant is presumed to have been properly issued and it is the accused who bears the burden ofproving otherwise. 116 The initial judge concluded that he was not satisfied there was any reasonable likelihood that a full voir dire could assist indetermining the issue before him, but did permit the defence to cross-examine Sgt.

Read, who took Busko on the ride along, whicheventually led to her revelation that the appellant stopped near 39 Southlawn Stroll shortly after the murder. 117 In my opinion, the initial judge followed the proper procedure, applied the correct test and did not commit any errors inprinciple. There is no merit to this ground of appeal.

Reopening of the Subfacial Validity Voir Dire 118 In the alternative to the previous ground, the appellant asserts that the trial judge erred by not conducting a fresh voir direbefore deciding that the ruling by the initial judge should not be disturbed. 119 As we have seen, after permitting the initial defence counsel to cross-examine Sgt. Read, the initial judge ruled that thesearch warrant was valid, though he noted that if Busko’s evidence at trial was different from that of Sgt. Read’s testimony at the voirdire, his ruling might need to be revisited. 120 At trial, Sgt.

Read testified before Busko, and the evidence of the gun was placed before the jury. The defence counsel laterrequested that the voir dire be reopened, arguing that Busko’s testimony was markedly different from that of Sgt. Read on the voir dire. The trial judge refused to reopen the voir dire, reasoning as follows: Has the defence presented any material inconsistencies between the description of the drive around given by Detective Sergeant Read,and that given by Sabrina Busko, that is can it be said that the circumstances which justify the order having been granted materiallychanged.

In my view the answer is a very clear, no. .... The difference between what Ms. Busko said about the drive around and what Detective Sergeant Read said during the trial on the voirdire is not in my view significant at all. It’s a matter of semantics. I’m satisfied that Ms. Busko’s description of the drive around ... presented to the provincial court judge in the Information to Obtain thewarrant ... was ample basis for the warrant to issue, therefore I’m dismissing the motion to re-open the voir dire.

Position of the Parties 121 The appellant submits that the trial judge “misunderstood or misinterpreted” the difference between Busko’s evidence attrial and Sgt. Read’s evidence on the voir dire before the initial judge. He argues that the order in which the witnesses were called attrial caused irreparable harm; the trial judge could not then second-guess the decision of the initial judge to potentially reopen the voirdire. He therefore requests a new trial.

122 The Crown says that s. 669.2(5) applies to this proceeding because the trial judge continued the trial begun by the initialjudge before his appointment to this court. Thus, it asserts that the evidence heard by the initial judge on the search warrant voir dire isdeemed to have been adduced before the trial judge. The Crown says that it never agreed that the evidence could be heard afresh.

Furthermore, it says that the appellant was not deprived of a fair trial by virtue of the fact that the same judge who upheld the searchwarrant did not rule upon the impact of Busko’s evidence on the validity of the search warrant. Conclusion 123 The law is clear that the trial judge had inherent jurisdiction to reconsider or revisit the previous rulings made at trial, but asstated by the Supreme Court in R. v. Adams, (SCC), [1995] 4 S.C.R. 707 at paras. 30-31, an order relating to the conductof a trial can be varied or revoked only if the circumstances have materially changed. See, as well, R. v.

Hunter (1980), (ON CA), 58 C.C.C. (2d) 190 (Ont. C.A.), R. v. Calder, (SCC), [1996] 1 S.C.R. 660, and the recent decision ofthis court in R. v. Farrah (D.), 2011 MBCA 49 (at paras. 22-23): What is a judge to do when the evidence at trial no longer buttresses an earlier voir dire ruling? To begin with, a judge is not functusofficio once the voir dire has ended (see R. v. Hunter (1980), (ON CA), 58 C.C.C. (2d) 190 (Ont. C.A.)). ….

In circumstances where the evidence at trial departs significantly from that of the voir dire and where it relates to a matter that justifiedthe voir dire ruling, a court may, on its own motion, reopen the voir dire and decide the matter afresh (see R. v. Smith (1986), (MB CA), 38 Man.R. (2d) 184 (C.A.); Adams [ (SCC), [1995] 4 S.C.R. 707] at paras. 29-30; R. v. Calder, (SCC), [1996] 1 S.C.R. 660 at para. 21; and R. v. Underwood, (SCC), [1998] 1 S.C.R. 77 at para.13).

When the contradictory evidence does not affect the voir dire ruling, the judge should note the inconsistency and factor it in whenassessing the witness’s credibility. 124 I agree with the Crown that the fact that the trial judge presided over the motion to reopen the voir dire did not deprive theappellant of the ability to make full answer and defence, or render the trial unfair; nor did unfairness flow from the change in judges. The trial judge had the transcript of Sgt.

Read’s testimony and heard his evidence before the jury that Busko had pointed out a portion ofthe street in front of 39 Southlawn Stroll, as well as testimony from Busko. 125 In my opinion, her conclusion not to reopen the voir dire was a reasonable exercise of her judicial discretion (R. v. Arbuthnot(D.C.) (1991), (BC CA), 7 B.C.A.C. 127 at para. 10) and should not be interfered with. The trial judge directed hermind to the proper legal principles and exercised her discretion judicially.

There is no basis to interfere with her decision not to reopenthe search warrant voir dire. 126 With respect to the order in which the witnesses were called, the fact that the Crown did not explain its decision to callBusko at trial after admission of the gun evidence is of no moment since the Crown has general discretion as to the presentation of itscase (R. v. Cook, (SCC), [1997] 1 S.C.R. 1113).

Identification of the Appellant as the Shooter 127 The appellant notes that of the 19 witnesses who were at Monty’s at the time of the shooting and were strangers to theappellant, six failed to identify his photograph in the photo pack shown to them. Eleven others selected more than one photograph orsimply stated that the appellant’s photo “looked like” the Asian male; only two identified the appellant’s photograph as someone whohad been outside the bar, in front of the patio.

None identified him as the shooter. 128 Six witnesses who previously knew the appellant (Erica Erickson, Busko, Kayla Normand, Cameron Topnik, Dan Tamblynand Jared Harland) did recognize the appellant from his photograph.

The appellant says that there were difficulties with respect to theevidence of all six witnesses; Topnik had a prior record, Harland was pending on criminal charges, Erica Erickson admitted that she liedto the police in her first sworn statement, Tamblyn disliked the appellant, and Busko and Normand were both under 18 and hadconsumed alcohol and drugs. 129 But the evidence also discloses that Erica Erickson was standing close to the appellant when he shot the victim; she saw himholding the gun and pointing it at the victim.

Busko testified that she accompanied the appellant and Erica Erickson across the street tothe parking lot and then fled the scene with them after the shooting. She was standing nearby when she heard a shot and looked back tosee the appellant crouching with a gun in his hand. Normand heard two shots and saw the victim drop to the ground; the appellant wasright by the victim when the shots were fired. Tamblyn, who said he was about 20 feet away, saw the appellant pull a gun from hissweater pocket and point it at and shoot the victim.

Topnik saw the appellant point the gun at the victim and heard three or four shots. 130 The above evidence was more than adequately summarized for the jury by the trial judge. 131 I have already commented on the appellant’s testimony at trial and that his defence was “I wasn’t there.” The appellant,supported by his sister

[…]