R. v. Largie,

• Jurisdiction: Ontario
• Judge: Feldman, Blair and Watt, JJ.A.
• Neutral Citation: 2010 ONCA 548
• Citation: (2010), 266 O.A.C. 103 (CA),2010 ONCA 548,101 OR (3d) 561,256 CCC (3d) 297,[2010] OJ No 3384 (QL),266 OAC 103,266 O.A.C. 103,(2010), 266 OAC 103 (CA),101 O.R. (3d) 561,[2010] O.J. No 3384 (QL)
• Date: 11 August 2010
• Court: Court of Appeal (Ontario)

R. v. Largie (G.) (2010), 266 O.A.C. 103 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. AU.043

Her Majesty The Queen (respondent) v. Gavra Largie and Karl Largie (appellants)

(C43412; C44418; 2010 ONCA 548)

Indexed As: R. v. Largie (G.) et al.

Ontario Court of Appeal

Feldman, Blair and Watt, JJ.A.

August 11, 2010.

Summary:

The accused brothers (Gavra and Karl) were jointly charged with second degree murder in the shooting death of the victim. The Crown alleged that Gavra shot the victim and Karl aided and abetted him. A jury found Gavra guilty of second degree murder and Karl guilty of the included offence of manslaughter. An authorization to intercept private conversations between Gavra, Karl and an informant was obtained after the informant advised the police of the accused's involvement in the murder and consented to the interception of their private conversations. The accused appealed, submitting that the evidence obtained under the authorization should have been excluded under s. 24(2) of the Charter. The accused jointly argued that the failure to require proof of investigative necessity prior to granting an authorization under s. 184.2 of the Criminal Code rendered s. 184.2 constitutionally invalid. Alternatively, the accused alleged that the authorizing judge merely rubber-stamped the authorization. Gavra claimed that a conversation between Karl and "John Doe" that took place in his absence should not have been admitted as against him. Gavra also challenged several of the trial judge's jury instructions. Karl argued that the trial judge erred in the manner in which his left his liability as an aider and abettor with the jury.

The Ontario Court of Appeal dismissed both appeals.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - An accused convicted of second degree murder argued that the trial judge's jury instructions were unbalanced and unfair, in that he spent far more time summarizing the Crown's position than the defence position - Contrary to that, the accused conceded that the trial judge "really captured the essence of the defence" - The Ontario Court of Appeal rejected the submission - The court stated that "except in rare cases where it would be needless to do so, a trial judge is obliged to advise the jury of the defence position, to review the substantial features of the evidence and to relate that evidence to the critical issues in the case so that the jurors will appreciate the value and effect of that evidence ... A trial judge is under no obligation to review in final instructions all the evidence upon which an accused relies in support of his or her position ... The role of the trial judge is to decant and to simplify ... It can nearly always be said that a trial judge could have reviewed the evidence in greater detail. But that is not the test. The standard is adequacy, not perfection." - In applying those principles, the court stated that "the trial judge was under no obligation to refer to every evidentiary tid-bit or to repeat every argument advanced by counsel at trial. Anything omitted did not deprive [the accused] of a fair adjudication of his defence. These instructions were fair and balanced, and even-handed in their treatment of a defence that might fairly be categorized as implausible." - See paragraphs 116 to 134.

Criminal Law - Topic 4362

Evidence and witnesses - Charge or directions - Jury or judge alone - Directions regarding separation of evidence against several accused in a joint trial - The Ontario Court of Appeal stated that "in a joint trial a statement made by one of several accused, not in furtherance of any common design and not adopted by any other accused, is admissible only in relation to its maker, even if it mentions something said or done by another accused. ...  In some instances, what is said by the maker about a co-accused may be so prejudicial to that co-accused so as to require a separate trial for the accused against whom the statement is not admissible ... An admissibility rule frequently in play in cases involving evidence of limited admissibility applies a cost benefit analysis to evidence that is otherwise relevant, material and compliant with the rules of admissibility. Under this rule, a trial judge has a discretion to exclude evidence on the basis that its prejudicial effect exceeds its probative value ... A trial judge may also exclude otherwise relevant, material and admissible evidence in order to prevent an unfair trial ... The discretion to exclude relevant, material and otherwise admissible evidence may take on a somewhat different dimension in a joint trial. Evidence received as an admission by one accused, and admissible in relation to him or her, may contain prejudicial information about another accused in connection with whom the evidence is inadmissible. The probative value of the evidence relates to the party making the admission. But the prejudicial effect of the evidence has to do with an accused against whom the evidence is not admissible. Each accused who participates in a joint trial is entitled to the constitutional protections inherent in the right to a fair trial. Among those protections is the right to be shielded from evidence that unfairly prejudices that accused ... But joint trials are different than trials involving a single accused. And the right of every accused to a fair trial does not mean that those tried jointly are entitled to an exact copy of the trial they would receive if they were to be tried alone ... To balance the competing interests of co-accused in a joint trial, the authorities conclude that a carefully crafted jury instruction about the permitted and prohibited use of evidence of limited admissibility is the best way to achieve that balance ... Absent alteration of the paradigm of trial by jury, constitutionally guaranteed in cases such as this, we proceed on the basis that juries accept and follow judicial instructions". - See paragraphs 85 to 87.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - The accused was convicted by a jury of second degree murder - The accused did not take issue with the admission of evidence of disreputable conduct, but submitted that the trial judge erred, in instructing the jury on the use and prohibited uses of the evidence, in particularizing the items of disreputable conduct rather than referring to them generally - The accused was invited to make suggestions respecting the jury charge, but declined - The Ontario Court of Appeal rejected the submission - The court stated that "instructions about jury use of evidence about limited admissibility, whether given mid-trial or as final instructions, should do three things: identify the evidence to which they relate, explain the permitted use of the evidence, explain the prohibited use of the evidence. ...  substance governs, not form. No case holds that a specific word formula or pattern must be followed to identify the items of evidence to which the instructions about limited admissibility apply. ...  The jury was properly instructed about the permitted as well as the prohibited use of this evidence. ... We expect counsel conducting a case, whether prosecuting or defending, to assist the trial judge by offering constructive submissions about the content of jury instructions, especially but not only final instructions. Failure to assist, by failure to respond to an express invitation, may be indicative of the seriousness of what is later said to be error and a factor in appellate review. ...  The jury were entitled to know the evidence to which the limiting instructions applied. The manner and description chosen fulfilled that obligation in a fair and balanced way." - See paragraphs 101 to 115.

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See Criminal Law - Topic 4379 ].

Criminal Law - Topic 4400

Procedure - Opening and closing addresses - Summing up - Opening address - General - The Ontario Court of Appeal stated that "the opening address of the prosecutor does not amount to provision of particulars that the prosecutor is bound to prove or fail in his or her case ... A prosecutor's theory of the case is not the same as a particularized indictment. It is the indictment and only the indictment that defines the factual transaction that the prosecution must prove in order to obtain a conviction ... The prosecutor is bound to prove formal particulars, subject to the surplusage rule, but not particulars of the theory or position advanced to establish liability" - See paragraph 158.

Criminal Law - Topic 5274.4

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - Investigative necessity - The accused brothers were jointly charged with second degree murder in the victim's shooting death - An informant implicated the accused and consented to the police intercepting private communications between he and the accused - The police obtained authorization under s. 184.2 of the Criminal Code (participant surveillance) - The evidence obtained was admitted at trial and one accused was convicted by the jury of second degree murder and the other was convicted of manslaughter - The accused appealed, submitting that s. 184.2 was constitutionally invalid because it failed to require proof of investigative necessity before an authorization was granted - The trial judge had held that while investigative necessity was required for conventional authorizations, it was not a constitutional requirement for all forms of electronic surveillance - The Ontario Court of Appeal agreed - Participant surveillance under s. 184.2 constituted a search and seizure subject to s. 8 of the Charter - An authorization required reasonable and probable grounds to believe an offence had been committed and that the interception of private communications would provide evidence - Investigative necessity was not a constitutional requirement - The court distinguished participant surveillance from third-party surveillance - The former was generally more focussed, targeting specific conversations with specific individuals - The interception of third-party communications was less likely - Further, the issuing judge had a discretion to grant an authorization based on the myriad of factors at play in each unique circumstance - Authorizations did not issue as of right - Section 184.2 was constitutionally valid without requiring investigative necessity - See paragraphs 25 to 58.

Criminal Law - Topic 5295.1

Evidence and witnesses - Admissibility of private communications - Admissible interceptions - Consent to interception - General - [See Criminal Law - Topic 5274.4 ].

Criminal Law - Topic 5310.2

Evidence and witnesses - Admissibility of private communications - Practice - Admission of admissible interceptions - Editing transcripts - The accused brothers (Gavra and Karl) were jointly charged with second degree murder in the victim's shooting death - Police suspected Gavra was the shooter and that Karl aided and abetted him - An informant consented to the interception of private communications between he and the brothers - Police obtained authorization for participant surveillance under s. 184.2 of the Criminal Code - At trial, Gavra sought redaction of the contents of a conversation that took place between the informant and Karl while he was absent - The trial judge declined to exclude that portion of the conversation, as it was relevant and admissible against Karl - Instead, the jury was instructed that the conversation was admissible only as against Karl - The accused were convicted - On appeal, Gavra argued that the instruction was insufficient to remedy the prejudicial effect admission had on him; that the only appropriate solution was exclusion of that evidence - The Ontario Court of Appeal held that "the failure to edit [Karl's] comments from the participant surveillance recordings reflected no error" - The court stated that "the trial judge could only have excluded this evidence if he were satisfied that its prejudicial effect in connection with Gavra ... outweighed it probative value in relation to Karl ... In assessing potential prejudice against Gavra  ..., it is critical to bear in mind that the jury received mid-trial and repeated final instructions about the permitted and prohibited uses of evidence of extrinsic misconduct or general bad character, and evidence of statements made by or attributed to individual accused. The jurors were told of their obligation to consider the case for and against each accused separately, and apparently did so according to their verdicts." - See paragraphs 59 to 99.

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - [See Criminal Law - Topic 4379 ].

Criminal Law - Topic 5473

Evidence and witnesses - Joint or separate trials - Separation or "boxing" of evidence - [See Criminal Law - Topic 5310.2 ].

Cases Noticed:

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 23].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 27].

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322, refd to. [para. 32].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 33].

R. v. Finlay and Grellette (1985), 11 O.A.C. 279; 52 O.R.(2d) 632 (C.A.), refd to. [para. 39].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 40].

R. v. S.A.B. et al., [2003] 2 S.C.R. 678; 311 N.R. 1; 339 A.R. 1; 312 W.A.C. 1; 2003 SCC 60, refd to. [para. 53].

Société Radio-Canada v. Nouveau-Brunswick (Procureur général) et al., [1991] 3 S.C.R. 459; 130 N.R. 362; 119 N.B.R.(2d) 271; 300 A.P.R. 271, refd to. [para. 53].

R. v. Bordage (2000), 146 C.C.C.(3d) 549 (Que. C.A.), refd to. [para. 57].

R. v. Doiron (E.) (2007), 315 N.B.R.(2d) 205; 815 A.P.R. 205 (C.A.), refd to. [para. 57].

R. v. Suzack (C.V.) et al. (2000), 128 O.A.C. 140; 141 C.C.C.(3d) 449 (C.A.), refd to. [para. 85].

R. v. Guimond, [1979] 1 S.C.R. 960; 26 N.R. 91; 44 C.C.C.(2d) 481; 94 D.L.R.(3d) 1; 8 C.R.(3d) 185, refd to. [para. 85].

R. v. B.C. and K.G. (1993), 62 O.A.C. 13; 12 O.R.(3d) 608 (C.A.), leave to appeal refused, [1993] 3 S.C.R. viii; 164 N.R. 79; 67 O.A.C. 158, refd to. [para. 85].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 86].

R. v. Buric (G.J.) et al., [1997] 1 S.C.R. 535; 209 N.R. 241; 98 O.A.C. 398, affing. (1996), 90 O.A.C. 321; 28 O.R.(3d) 737 (C.A.), refd to. [para. 86].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 89].

R. v. Higginbottom (C.) (2001), 150 O.A.C. 79; 156 C.C.C.(3d) 178 (C.A.), refd to. [para. 90].

R. v. Creighton (D.J.) and Crawford (C.), [1995] 1 S.C.R. 858; 179 N.R. 161; 81 O.A.C. 359; 96 C.C.C.(3d) 481, refd to. [para. 107].

R. v. Crawford (C.) - see R. v. Creighton (D.J.) and Crawford (C.).

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 107].

R. v. Royz (E.), [2009] 1 S.C.R. 423; 388 N.R. 1; 251 O.A.C. 397; 2009 SCC 13, refd to. [para. 113].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4, refd to. [para. 113].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 113].

R. v. Cudjoe (R.) (2009), 251 O.A.C. 163; 68 C.R.(6th) 86; 2009 ONCA 543, refd to. [para. 113].

Azoulay v. R., [1952] 2 S.C.R. 495; 104 C.C.C. 97, refd to. [para. 124].

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 43 O.R.(3d) 378 (C.A.), refd to. [para. 124].

R. v. Cooper, [1993] 1 S.C.R. 146; 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209, refd to. [para. 126].

R. v. John, [1971] S.C.R. 781, refd to. [para. 126].

R. v. Baltovich (R.) (2004), 192 O.A.C. 366; 73 O.R.(3d) 481 (C.A.), refd to. [para. 127].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [para. 141].

R. v. Isaac, [1984] 1 S.C.R. 74; 51 N.R. 308, refd to. [para. 141].

R. v. Sparrow (1979), 51 C.C.C.(2d) 443 (Ont. C.A.), refd to. [para. 141].

R. v. Almarales (A.) (2008), 244 O.A.C. 127; 237 C.C.C.(3d) 148 (C.A.), refd to. [para. 148].

R. v. Popovic and Askov (1974), 16 C.C.C.(2d) 238; 25 C.R.N.S. 1; 3 O.R.(2d) 23 (C.A.), affd. [1976] 2 S.C.R. 308; 7 N.R. 231; 25 C.C.C.(2d) 161; 32 C.R.N.S. 54; 62 D.L.R.(3d) 56, refd to. [para. 158].

R. v. Govedarov, Popovic and Askov - see R. v. Popovic and Askov.

R. v. Bengert et al. (No. 5) (1979), 53 C.C.C.(2d) 481; 15 C.R.(3d) 114 (B.C.C.A.), refd to. [para. 158].

R. v. McCune (M.B.) (1998), 116 B.C.A.C. 267; 190 W.A.C. 267; 131 C.C.C.(3d) 152 (C.A.), refd to. [para. 158].

R. v. Groot (N.) (1998), 112 O.A.C. 303; 41 O.R.(3d) 280; 129 C.C.C.(3d) 293 (C.A.), refd to. [para. 158].

R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113, refd to. [para. 160].

R. v. Ranger (R.) (2003), 176 O.A.C. 226; 178 C.C.C.(3d) 375; 67 O.R.(3d) 1 (C.A.), refd to. [para. 161].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 184.2(2), sect. 184.2(3), sect. 184.2(4), sect. 185(1), sect. 186(1), sect. 186(4) [para. 34].

Counsel:

Brian Snell, for the appellant, Gavra Largie;

Michael Lacy and Joshua Frost, for the appellant, Karl Largie;

John McInnes and Chikeziri Igwe, for the respondent.

These appeals were heard on October 26-27, 2009, before Feldman, Blair and Watt, JJ.A., of the Ontario Court of Appeal.

On August 11, 2010, Watt, J.A., delivered the following judgment for the Court of Appeal.