COURT OF APPEAL FOR ONTARIO
ROSENBERG, MacPHERSON and SHARPE JJ.A.
DATE: 20001003
DOCKET: C29835
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
-and -
DANIEL NORMAN SCHELL
Appellant
Christopher Hicks,
Carol A. Cahill, and
Sam Scratch,
for the appellant
Robert Kelly,
for the respondent
July 26, 2000
On appeal from the his conviction by the Honourable Mr. Justice Gordon George Nicholls, sitting with a jury, on January 23, 1998
ROSENBERG J.A.:
1The appellant appeals from his conviction for second degree murder following a trial before Nicholls J. and a jury. The appellant testified at his trial that he killed the deceased, a person to whom he owed a relatively small amount of money from a drug transaction, in self-defence. The trial judge also left the defence of provocation to the jury. The grounds of appeal concern the charge to the jury on self-defence, provocation, and after-the-fact conduct. It is also argued that the cross-examination of the appellant by Crown counsel was improper and abusive.
2For the reasons that follow I would allow the appeal and order a new trial.
THE FACTS
3At the time of the killing in October 1996, the appellant was 34 years of age and had been addicted to cocaine for ten years. He worked as an “exercise boy” at the Fort Erie Racetrack, where he had met the deceased. He claimed that the deceased had been supplying drugs to him at the track. On October 25, 1996, the appellant purchased $60 worth of crack cocaine from the deceased. He still owed the deceased $40 from a previous drug deal. The appellant said that he would pay the deceased $100 the following day. The appellant smoked the crack cocaine at the racetrack. He left the track some time later and arrived home about 6:00 p.m.
4The only accounts of the killing come from the appellant in conversations he had with two friends and in his testimony. His testimony was generally consistent with the accounts given to his friends.
5The appellant testified that about thirty seconds after he arrived home, the deceased entered his home without knocking. The deceased was larger and taller than the appellant. He was angry and started swearing and demanding his money or his drugs. The appellant pushed the deceased away but he came back and was punching him around the head and face. The appellant told him to get out of the house. The deceased had the appellant by the hair and was punching him. At the same time, the appellant was kicking the deceased and punching him in the face. The appellant testified that he was very scared because he had been beaten up by drug dealers in the past.
6According to the appellant, the altercation escalated in violence. The deceased came at him with a knife and waved it in his face. The deceased was between him and the door and so he could not escape. The appellant grabbed the deceased and they fell over with the deceased on top of him. In the fall, they knocked over a small refrigerator and a hammer and a buck knife fell to the ground. The appellant recalled hitting the deceased but could remember nothing further until he was standing over the deceased and holding a hammer. He realized that the deceased was dead.
7The appellant claimed that he panicked after this. He moved the body to his shower and tried to clean up the apartment. He changed his own clothes and eventually disposed of them in a dumpster. He went outside to find the deceased’s car. He searched the car and found $200. He stole the money and later gave it to his landlady for his rent. He then moved the car so that it was no longer in his driveway.
8The next day, the appellant went to the racetrack but was unable to work because of cuts to his hands and a broken finger. He had a black eye, swelling on his face and abrasions across his arms and back. He later went out with his girlfriend, Sandy Teale, and told her what had happened. After dropping off Sandy Teale, he went to the home of Dale and Rose Cooper. He attempted to enlist Mr. Cooper’s help in disposing of the deceased’s car and he told Mrs. Cooper about the killing.
9The following day, the appellant arranged to surrender to the police. The police went to the appellant’s apartment where they found the body. There was no identification with the body and the deceased’s hat, coat and wallet were never found. The deceased died from multiple (fifteen) stab wounds, including several to the heart, possibly combined with blunt force injuries to the head. The deceased received at least nine blows to the head and face causing fracturing of the skull and nasal bones. These blows were probably inflicted by a hammer. Shards of metal from a pair of scissors were found in tissues behind the eye and in the deceased’s temple.
THE GROUNDS OF APPEAL
10The appellant raises the following grounds of appeal:
- The charge to the jury on self-defence
(i) The trial judge did not sufficiently focus the jury’s attention on the subjective elements of self-defence in s. 34(2) of the Criminal Code.
(ii) The trial judge erred in directing the jury on s. 37 of the Criminal Code.
(iii) The trial judge erred in failing to direct the jury as to the application of s. 41 of the Criminal Code.
(iv) The trial judge erred in failing to relate the evidence to self-defence.
- The charge to the jury on provocation
(i) The trial judge misdirected the jury with respect to the subjective element of provocation.
(ii) The trial judge did not adequately answer the jury’s questions concerning provocation.
(iii) The trial judge failed to relate the evidence to provocation.
The trial judge erred in failing to give a “rolled-up” charge with respect to intent.
The trial judge misdirected the jury with respect to the appellant’s after-the-fact conduct.
The trial judge misdirected the jury with respect to the testimony of the witness Dawn Colson.
A miscarriage of justice was occasioned by Crown counsel’s improper cross-examination of the appellant.
ANALYSIS
1. Self-defence
(i) The subjective elements of self-defence in s. 34(2) of the Criminal Code.
11The appellant argues that the trial judge erred in his charge to the jury by failing to focus the jury’s attention on the appellant’s state of mind. Mr. Hicks concedes that the trial judge directed the jury in accordance with the reasons of Martin J.A. in R. v. Baxter (1975), 1975 1510 (ON CA), 27 C.C.C. (2d) 96 (Ont. C.A.). He argues, however, that more recent authorities, such as R. v. Pétel (1994), 1994 133 (SCC), 87 C.C.C. (3d) 97 (S.C.C.), instruct trial judges to place greater emphasis on the state of mind of the accused and he argues that the trial judge did not do so in this case. The central concern raised is the trial judge’s statement, on several occasions, that what a “reasonable man” would believe is a relevant consideration. As well, on two occasions the trial judge referred to what a reasonable man would believe “or do” in the circumstances.
12In my view, the charge to the jury on the subjective elements of s. 34(2) was adequate. It was in accord with Baxter and that decision makes it clear that the ultimate question for the jury is not whether the accused was actually in danger of death or grievous bodily harm, but whether the accused caused death or grievous bodily harm under a reasonable apprehension of death or grievous bodily harm. In making that determination, the jury is entitled to consider what a reasonable person would believe. There is nothing in Pétel that casts doubt on Baxter. To the contrary, in Pétel at p. 104, Lamer C.J.C. referred with approval to the earlier decision in R. v. Reilly (1984), 1984 83 (SCC), 15 C.C.C. (3d) 1 (S.C.C.) at 7-8 where the court held that the accused’s “apprehension must be a reasonable one and his belief must be based on reasonable and probable grounds”. Lamer C.J.C. also held that the trial judge’s instructions in the main part of the charge on self-defence were without fault. He summarized part of the charge at p. 105:
The judge also said that the jury should try to determine how the accused assessed the situation and compare that assessment with what a reasonable person placed in the same circumstances would have thought. [Emphasis added.]
13As I have indicated, on two occasions the trial judge also referred to what a reasonable person would believe “or do”. In my view, the jury would not have been misled because of the addition of those two words. The charge, when read as a whole, focused on the appellant’s perception of the events, making it clear, as required by s. 34(2), that the perception must be reasonably based. I would not give effect to this ground of appeal.
(ii) The trial judge erred in directing the jury on s. 37 of the Criminal Code
14After instructing the jury with respect to self-defence under s. 34(2) of the Criminal Code, the trial judge directed the jury that they must also consider self-defence under s. 37. It would seem that the trial judge did so out of an abundance of caution and over the objection of defence counsel. While I agree with counsel for the appellant that it was unnecessary to direct the jury with respect to s. 37, I am also satisfied that the appellant suffered no prejudice from those directions. The trial judge told the jury only to consider s. 37 if they rejected self-defence under s. 34(2). He accurately pointed out the elements of the defence under s. 37 and compared them with the less stringent conditions under s. 34(2).
(iii) The trial judge erred in failing to direct the jury as to the application of s. 41 of the Criminal Code
15Section 41 of the Criminal Code describes the circumstances in which a person may use force in defence of property. It provides as follows:
- (1) Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.
(2) A trespasser who resists an attempt by a person who is in peaceable possession of a dwelling-house or real property, or a person lawfully assisting him or acting under his authority to prevent his entry or to remove him, shall be deemed to commit an assault without justification or provocation.
16Section 41(1) had no application on the facts of this case. As Martin J.A. said in R. v. Scopelliti (1981), 1981 1787 (ON CA), 63 C.C.C. (2d) 481 (Ont. C.A.) at 504:
Firing at a mere trespasser is, of course, not justifiable, and the use of force of the kind used by the respondent can only be justified in self-defence under s. 34 or to prevent the commission of a crime likely to cause immediate and serious injury under s. 27 of the Code: see R. v. Baxter, supra, at p. 114; Taschereau, The Criminal Code of Canada, at pp. 25‑6. Indeed, the respondent did not assert that he used the force which he did in order to remove the deceased as trespassers. On the contrary, he asserted that he fired the shots in the belief that the deceased were going to rob and kill him. [Emphasis added.]
17While it would have been open to the jury to find that the deceased was a trespasser, as in Scopelliti this appellant did not assert that he was using the deadly force to remove the deceased from the residence, but because he feared for his own life.
18I am also of the view that the trial judge did not err in refusing to charge the jury on the application of s. 41(2). The availability of self-defence could not have turned on the deemed assault in that provision. It depended upon the appellant’s perception of the actual attack by the victim.
19The appellant also argued that even if s. 41 should not have been left with the jury, the trial judge should have directed the jury that since the appellant was in his own home, he was not required to retreat, but was entitled to stand his ground and defend himself. As part of his review of the evidence, the trial judge did invite the jury to consider “the relative physical position of the two men at the relevant time in the residence so far as the escape or other methods of quitting the conflict were concerned”. However, this was evidence relied upon by the defence to reinforce self-defence. There was no suggestion from the prosecution that the appellant should have retreated. Based on the appellant’s evidence, he was essentially under attack from the point that the deceased entered the apartment and the deceased was blocking the only exit. While it would have been preferable had the trial judge explicitly reminded the jury that there was no obligation on the appellant to retreat from his own home, I am also satisfied that there was no reasonable possibility that the jury would believe that the defence failed if the appellant had an avenue of escape.
(iv) The trial judge erred in failing to relate the evidence to self-defence
20The appellant argues that the trial judge did not adequately relate the evidence to the defence of self-defence. In my view, the trial judge’s review of the evidence was sufficient. Before turning to self-defence, the trial judge reviewed the evidence. In the course of this review, he fairly summarized the appellant’s testimony. When he came to deal with self-defence, the trial judge reminded the jury of the important points upon which the defence depended, such as the relative size and strength of the two parties, the escalating violence by the deceased, and the production of the knife by the deceased.
21I would not give effect to any of the grounds of appeal relating to self-defence.
2. Provocation
(i) The subjective element of provocation
22Although not expressly relied upon by the defence, the trial judge held that there was evidence that gave rise to the defence of provocation and he instructed the jury accordingly. The instructions were objectionable in only one respect. After instructing the jury on the objective part of the test (whether an ordinary person would have been deprived of the power of self-control), the trial judge turned to the subjective element and directed the jury in the following terms:
You will then consider whether the accused acted on the provocation on the sudden, before there was time for his passion to cool. In deciding this question, you are not restricted to the standard of the ordinary person. You will take into account the mental, the emotional, the physical characteristics and perhaps even the age of the accused. The incident or the words upon which the provocation is based must be contemporaneous words or closely related to the tragedy. The killing must take place immediately after the acts or words constituting the provocation or so soon thereafter that the accused’s passion had no time to cool. The significance of the alleged provocation that immediately preceded the killing should be viewed, however, in the context of such prior acts as you find did occur in the residence of the accused. You will ask yourselves, was the provocation such that it would have led a person with the mental and physical conditions and the age of the accused to respond in this way. [Emphasis added.]
23The appellant argues that in the emphasized portion, the trial judge has imported an aspect of the first branch of the provocation defence into the second, subjective, branch. The question was whether the appellant was actually acting in the heat of passion, not whether a person with the mental and physical conditions and age of the accused would have responded in this way.
24These instructions are not particularly clear because the trial judge, in an effort to assist the jury in distinguishing the first and second branches of the test, has mixed in elements of the former, the ordinary person test, with the latter purely subjective branch. Put another way, the trial judge has somewhat objectified the second branch by inviting the jury to consider a person like the appellant rather than the appellant himself. It seems that the trial judge may well have been attempting to incorporate aspects of the judgment of the Supreme Court of Canada in R. v. Hill (1986), 1986 58 (SCC), 25 C.C.C. (3d) 322 at 336 where Dickson C.J.C. wrote that:
In instructing the jury with respect to the subjective test of provocation, the trial judge must make clear to the jury that its task at this point is to ascertain whether the accused was in fact acting as a result of provocation. In this regard, a trial judge may wish to remind the jury members that, in determining whether an accused was actually provoked, they are entitled to take into account his or her mental state and psychological temperament. [Emphasis added.]
25In considering the seriousness of this error, the charge as a whole must be considered and immediately after the impugned instruction the trial judge refocused the jury on the purely subjective nature of the defence in the following passage:
Did the accused lose control at all in response to provocation from the deceased, or was he simply doing what he felt was necessary for preservation? Did he, having lost control because of the wrongful act or insult by the accused [sic deceased], respond with suddenness, in the heat of passion, without thought or reason? This is the matter for you to determine.
26Finally, it is necessary to consider the jury’s questions on provocation that disclose some confusion about this second branch of the test.
(ii) The jury’s questions concerning provocation
27After some period of deliberations, the jury asked two questions concerning provocation. They referred to both questions as “Questions of fact”. For convenience I have numbered the questions.
(1) Are we to use the way the accused Daniel Schell reacted specifically to the act of provocation, if proven, as opposed to how an ordinary person would react if we presume that Daniel Schell was deprived of the power of self-control…The word “accused” is specifically used in 3(b)
(2) Could you give us an example of the amount of time deemed necessary for an ordinary person’s passion to cool?
28The first question is directly relevant to the error in the main part of the charge. The trial judge had given the relevant sections of the Criminal Code to the jury.1 The references to “questions of fact” and “3(b)” are to s. 232(3) which provides in part as follows:
(3) For the purposes of this section, the questions
(a) whether a particular wrongful act or insult amounted to provocation, and
(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,
are questions of fact…
29In answering the first question from the jury, the trial judge made it clear that the issue was “whether this accused acted upon that provocation upon the sudden and before there was time for his passion to cool”. He also directed the jury as follows:
If you are satisfied or have a reasonable doubt that the acts and words were such to deprive an ordinary person of self-control, the second aspect focuses on the accused. That, of course, as you know, is Mr. Schell. You will then consider whether the accused acted on the provocation on the sudden, before there was time for his passion to cool. In deciding this question, you are not restricted to the standard of the ordinary person.
I think that answers you question, does it not?
And it just goes on: You will take into account the mental, the emotional, the physical characteristics and the age of the accused.
30In my view, the answer to the jury’s first question would have cleared up any ambiguity that may have been left by the directions in the main part of the charge concerning the nature of the second branch of the provocation defence.
31The appellant argues, however, that the trial judge’s response to the second question was inadequate. The trial judge simply told the jury that he could not answer the question and stated that, “That is for you, the jury, to decide”. The trial judge decided to answer the question in this way after consulting with counsel. Both Crown and defence counsel had submitted to the trial judge that he should respond in that way. Nevertheless, I agree with the appellant that this response was inadequate. Although framed as a “question of fact” the question displayed a misapprehension of the law of provocation. In particular, it should have been pointed out to the jury that the issue was not whether there was time for the “ordinary person’s passion to cool” but whether the accused acted on the sudden. Further, on the facts of this case, whether the accused acted on the sudden was not really a live issue. The entire episode, from the arrival of the deceased to the fatal attack, were all part of one transaction—a story of escalating abuse and violence by the deceased culminating in the deadly response by the appellant. The trial judge’s answer to the jury’s other question only went part way to clearing up the jury’s misapprehension about provocation in this respect.
32The Supreme Court of Canada has emphasized on several occasions the need for jury questions to be answered clearly, correctly and comprehensively. In R. v. S. (W.D.) (1994), 1994 76 (SCC), 93 C.C.C. (3d) 1 (S.C.C.) at 6, Cory J. explained the reason for careful instructions at this point in the trial:
It is true that directions to a jury must always be read as a whole; however, it cannot ever be forgotten that questions from the jury require careful consideration and must be clearly, correctly and comprehensively answered. This is true for any number of reasons which have been expressed by this court on other occasions. A question presented by a jury gives the clearest possible indication of the particular problem that the jury is confronting and upon which it seeks further instructions. Even if the question relates to a matter that has been carefully reviewed in the main charge, it still must be answered in a complete and careful matter. It may be that after a period of deliberation, the original instructions, no matter how exemplary they were, have been forgotten or some confusion has arisen in the minds of the jurors. The jury must be given a full and proper response to their question. The jury is entitled to no less. It is the obligation of the trial judge assisted by counsel to make certain that the question is fully and properly answered. [Emphasis added.]
And at p. 8:
There can be no doubt about the significance which must be attached to questions from the jury and the fundamental importance of giving correct and comprehensive responses to those questions. With the question the jury has identified the issues upon which it requires direction. It is this issue upon which the jury has focused. No matter how exemplary the original charge may have been, it is essential that the recharge on the issue presented by the question be correct and comprehensive. No less will suffice. The jury has said in effect, on this issue there is confusion; please help us. That help must be provided. [Emphasis added.]
33In considering whether any miscarriage of justice resulted from the trial judge’s response to the second question, it is proper to take into account that the answer was in accordance with the submissions of both counsel. Further, in answering the first question, the trial judge did clarify the distinction between the two stages of provocation. In particular, he said, “You will consider whether the accused acted on the provocation on the sudden, before there was time for his passion to cool. In deciding this question, you are not restricted to that standard of the ordinary person.”
34Nevertheless, I am not persuaded that the trial judge’s answer to the second question was in accord with the important duty placed upon a trial judge in responding to jury’s questions. The jury’s question displays confusion about the elements of provocation and their application to the facts of this case. As indicated, the jury should have been told that the issue was not whether there was time for the ordinary person’s passion to cool but whether the accused acted on the sudden and before there was time for his passion to cool. Further, the jury should have been told that if the attack happened in the way testified to by the appellant, this element of provocation was really a non-issue. I will consider the effect of this error at the conclusion of these reasons.
(iii) The trial judge failed to relate the evidence to provocation
35The trial judge did not extensively relate the evidence to the defence of provocation. He reminded the jury that the same factual situation that gave rise to self-defence could give rise to provocation. He also expressly directed the jury to the particular acts and words by the deceased that could give rise to provocation, in particular the uninvited entry into the apartment, the assault upon the appellant and the production of the knife. Given the early extensive review of the appellant’s testimony, failure to repeat the review did not amount to reversible error.
3. The trial judge erred in failing to give a “rolled-up” charge with respect to intent
36The appellant argues that the trial judge erred in failing to give a so-called “rolled-up” charge along the lines set out by this court in R. v. Bob (1990), 1990 13299 (ON CA), 78 C.R. (3d) 102, R. v. Clow (1985) 1985 5974 (ON CA), 44 C.R. (3d) 228 and R. v. Nealy (1986), 1986 4694 (ON CA), 30 C.C.C. (3d) 460. Since I would order a new trial on other grounds, I need not decide whether the failure to give such a charge in this case was prejudicial to the appellant. There is much to the respondent’s submissions that when the charge is read as a whole the jury would clearly understand the importance of finding the requisite intent for murder and that the evidence of self-defence, provocation and slight intoxication was relevant to that issue. For the benefit of the judge presiding at the new trial, however, and assuming the evidence at that trial is similar to the evidence at the first trial, a rolled-up charge should be given along the lines set out in the decisions of this court.
4. The charge with respect to after-the-fact conduct
37Following the killing, the appellant did a number of acts in an attempt to cover up the crime. He admitted moving the deceased’s car, disposing of the bloody clothing, washing the knives and the hammer, cleaning up the scene, and attempting to enlist the aid of Mr. Cooper to dispose of the body. It would also have been open to the jury to find that the appellant disposed of the deceased’s clothing and identification. Crown counsel placed considerable reliance on this evidence in cross-examination of the appellant and in his closing address to the jury. The trial judge dealt expressly with this evidence in the following terms:
Now, one matter before we get to self-defence and that is what you have heard this made mention of by the Crown in his address and it is called after-the-fact conduct of the accused. That would be, after-the-fact would be after the killing. Although the accused admitted to hitting the victim, Mr. Chin, with a hammer and admitted the death of Mr. Chin, he did not admit that he had committed any culpable act but testified that he had acted in self-defence. In these circumstances, the after-the-fact conduct of the accused; that is, what he did after the killing; was some evidence from which, along with other evidence, you could infer that the accused was aware he had committed a culpable; that is, a blameworthy; act and had not acted in self-defence.
Do you want me to go over that again? Have you got it? Okay.
The accused, for example; just examples of the after-the-fact conduct; the accused said that he moved the victim’s car and cleaned the knives and disposed of bloody clothing and other evidence that he gave. That is the type of thing that I am speaking of there.
Now, I must point out to you, however, that the after-the-fact conduct of the accused cannot be used to determine whether the accused committed manslaughter or murder but, depending on the circumstances, it may be of some assistance in determining whether he committed a culpable homicide. All right, then.
38The trial judge also referred to this evidence as part of his review of the Crown’s theory:
The Crown also relies on the after-the-fact conduct of the accused, by reason of such acts; and this is not a complete list, by any means, but the moving of the car, disposing of the bloody clothing and so on and by the accused not calling the police.
It is the position of the Crown that the accused took all of the victim’s money, his wallet, his driver’s licence. Anything which would have identified the body was removed from the pockets of Mr. Chin.
39No reference is made in these passages to any possible innocent explanation the appellant might have had for the conduct. The only references to such an explanation were in the trial judge’s review of the appellant’s testimony where he accurately set out the appellant’s explanation that he was scared, nervous and panicky. The trial judge also reviewed the appellant’s denial of having taken the deceased’s identification and other items. The appellant’s trial counsel (not Mr. Hicks) did not object to the charge to the jury with respect to after-the-fact conduct.
40The appellant argues that the charge to the jury was deficient in several respects. The trial judge did not direct the jury to consider that people sometimes cover up a crime for innocent reasons. He did not expressly relate the appellant’s own explanations for his conduct. He did not caution against the natural tendency to jump from evidence of flight to a conclusion of guilt. He did not refer to the appellant’s conduct that was consistent with innocence, namely his decision to turn himself in to the police. Finally, it is argued that the evidence of after-the-fact conduct was of limited probative value on the issue of self-defence.
41In the circumstances of this case, the trial judge did not err in leaving the after‑the‑fact conduct as circumstantial evidence of the appellant’s knowledge that he had committed a culpable homicide. The trial judge was careful to limit the evidence to the one issue of self-defence and it had sufficient probative value on that issue: R. v. Peavoy (1997), 1997 3028 (ON CA), 117 C.C.C. (3d) 226 (Ont. C.A.) at 240-41.
42The charge was, however, deficient in other respects. The trial judge should have expressly related the appellant’s explanations to the issue of guilty knowledge so that the jury could give those explanations full consideration: R. v. White (1998), 1998 789 (SCC), 125 C.C.C. (3d) 385 (S.C.C.) at 404. This was a significant error because the Crown spent considerable time in cross-examination and in his jury address on the after-the-fact conduct in an effort to show that the appellant’s actions were inconsistent with self-defence. While the trial judge had reminded the jury of the appellant’s explanations in the earlier review of the appellant’s testimony, those explanations should have been expressly included as part of the legal instructions on the use of after-the-fact conduct. Further, in that context it would have been preferable for the trial judge to draw to the jury’s attention the appellant’s after-the-fact conduct that was consistent with innocence and his explanation of panic. In other words, once the panic and fear had subsided, the appellant did turn himself into the police. I will consider the effect of this error at the conclusion of the reasons.
5. The trial judge misdirected the jury with respect to the testimony of the witness Dawn Colson
43Dawn Colson had had a very brief relationship with the appellant shortly before the killing. She testified about conversations she had with the appellant about his money problems. In one of these conversations, the appellant said that he owed money ($50) to a “man from Toronto” and he would kill this man before giving him the money. The deceased was from Brampton, a city very close to Toronto. In his jury address, Crown counsel asked the jury to infer that the deceased was the “man from Toronto”. The trial judge summarized Ms. Colson’s evidence in his charge to the jury. The appellant submits that the jury should have been directed to ignore this testimony because there was no evidence that the appellant was referring to the deceased in this conversation.
44No objection was taken to the admission of this evidence and there was an evidentiary foundation, albeit slight, for the jury to find that the appellant was referring to the deceased. The trial judge’s reference to the evidence was accurate and extremely brief. On this record, I cannot say that the trial judge misdirected the jury. On the new trial, if objection is taken to the admission of this evidence, it will be for the trial judge to decide whether the probative value of the evidence outweighs its prejudicial effect and therefore whether or not it should be admitted. That will depend on the evidence adduced at the new trial and the issues raised.
6. Crown counsel’s improper cross-examination
45The most serious ground of appeal concerns Crown counsel’s cross-examination of the appellant. The appellant submits that Crown counsel’s cross-examination was improper in several respects and abusive. Trial counsel raised a timely objection to many of these questions and the trial judge eventually intervened.
46The types of improper cross-examination fall into several categories:
(i) Questions concerning the exercise of the right to silence;
(ii) Questions concerning access to Crown disclosure;
(iii) Improper editorial comments;
(iv) Improper elicitation of the details of the appellant’s criminal record.
47Mr. Kelly (who was not counsel at trial) concedes that some of Crown counsel’s cross-examination of the appellant was improper.
48Regrettably, to deal with this evidence it is necessary to set out the cross-examination in some detail.
49During the Crown’s case in chief, Crown counsel had elicited from the arresting officer that the appellant was asked to give a statement but did not do so. Crown counsel commenced his cross-examination of the appellant with the following:
Q. Mr. Schell, you would agree with me that the first time that you gave your story, at least the first time I heard it and Sergeant Lillico heard it or the jury heard it, the first time was yesterday. Correct?
A. That you heard?
Q. Have you told that story before to the Crown?
A. To the Crown, no, Sir.
50Defence counsel then asked that the jury be excused and in the jury’s absence objected to this line of questioning. The trial judge ruled that the questioning was proper and that, in effect, it was open to Crown counsel to suggest that the appellant had recently fabricated his testimony because he had not spoken to the police. The cross-examination therefore continued:
Q. Mr. Schell, we are hearing this story, the jury, for the first time, the full version. Is that correct?
A. Yes, Sir.
Q. And you have had disclosure of the Crown’s material, in terms of what witnesses would be testifying and what they are going to say?
A. No, Sir, I did not.
Q. You did not read any of the statements?
A. Some of them, Sir.
Q. And you attended the preliminary hearing and listened to the witnesses?
A. I did, sir.
Q. So you have had an opportunity to think about it for the last 14 months?
A. Think about what?
Q. The evidence.
A. No, sir.
Q. Well, I thought you said that you had been thinking about it just about every day?
A. I think about, uh, the death, every day.
Q. The death.
A. I don’t . . .
Q. So, at no time did you think about the evidence?
A. Against me, Sir?
Q. Yes.
A. No, Sir.
Q. Never, never thought about it at all?
A. I, I don’t understand you.
Q. Well, you told Rose Cooper a few things. Correct?
A. As I have told other people, sir.
Q. Yes. Bits and pieces: right?
A. No, Sir.
Q. You told them self-defence?
A. Excuse me?
Q. You told them it was self-defence?
A. Who did I tell that to, Sir?
Q. No; I am asking you.
A. I have nnn (sic); I have only spoke to counsel about that, sir.
Q. You said you have told other people about it.
A. I told other people what happened.
Q. Who did you tell?
A. Uh, one would be my sister.
Q. Yes?
A. Sandy Teale.
Q. Yes?
A. Uh, [defence counsel].
Q. Yes?
A. His, uh, legal staff at his office. Uh, and I might of, Dale Cooper.
Q. I am sorry?
A. I might of told Dale Cooper.
Q. I see. But it is the first time we have heard anything from you. Is that correct?
A. From me?
Q. Yes.
A. Yes, Sir.
Q. The whole story, the whole detail?
A. My side of the story, yes, Sir.
Q. You did not testify at the preliminary hearing?
A. I didn’t think I was under obligation to testify.
Q. Well, you are not under an obligation. But you didn’t: is that correct?
A. We chose not to.
Q. All right. When you turned yourself in, you are not required to give a statement. Correct?
A. I was under the assumption.
Q. And you did not give one: correct?
A. Under legal advice, yes, Sir.
Q. You did not give a statement: correct?
A. I did not.
Q. Did you; was it your intention to cooperate with the police, . . .
A. Very much.
Q. . . . to get to the root of the problem or the truth of the matter?
A. It was to cooperate with the police, yes, Sir.
Q. Pardon?
A. It was to cooperate.
Q. And, to the extent that you cooperated, Sir, was to tell the police to photograph your injuries. Correct?
A. That was done on the advice from my lawyer, Sir.
Q. All right. But you did not tell the police, perhaps where the clothing was that you hid? [Emphasis added.]
51Defence counsel again objected and did so in front of the jury. In the course of his submissions, he characterized Crown counsel’s questioning as morally and legally wrong. In the course of the dialogue, the trial judge advised the jury that there is “no compulsion on any accused person to give a statement to the police” nor to “cooperate with the police”. The trial judge instructed Crown counsel to move to another area.
52Unfortunately, Crown counsel decided to then question the appellant on whether he had been cheating the welfare authorities. After some proper cross-examination, Crown counsel then turned to the appellant’s prior criminal record. He was not content, however, to simply review the convictions and the penalty. He asked the appellant about the details of the record, particularly an assault on Sandy Teale. Again defence counsel raised a timely objection. After some discussion in the presence of the jury, the jury left the courtroom. When they returned, the trial judge gave the jury the standard instruction on the limited use of an accused’s criminal record. Nevertheless, Crown counsel persisted in a similar line of questioning, asking the appellant about the conditions of the recognizance while he was on bail for the assault charge and suggesting to the appellant that he had violated some of those conditions. This line of questioning, which continued for some time, had no relevance to the issues in the case and was prejudicial to the appellant.
53There were also several improper editorial comments from Crown counsel. For example, in cross-examining the appellant on the theft of the money from the deceased’s car, Crown counsel referred to the appellant’s “usual larcenous instinct” taking over. Crown counsel also mischaracterized some of the testimony given by Rose Cooper and Sandy Teale in cross-examining the appellant. He also questioned the appellant about his sleeping in the same bed as Mrs. Cooper and whether Mr. Cooper was aware of this. It is difficult to understand the purpose of this examination.
54This cross-examination violated some well-established rules. These are matters that this and other appellate courts have written about often in recent years. Accordingly, it is only necessary to briefly summarize the applicable legal principles.
55Crown counsel should not have led evidence from the arresting officer that the appellant had not made a statement upon arrest. The appellant had the right to remain silent and there was no permissible use of his silence: R. v. Noble, 1997 388 (SCC), [1997] 1 S.C.R. 874 at 918. Standing alone, this error was of little consequence in this case. The evidence was extremely brief and the silence was not in response to any specific allegation the appellant might have been expected to deny. It was only when Crown counsel attempted to exploit the appellant’s silence upon arrest and at the preliminary inquiry that the possibility of real prejudice arose. The trial judge erred in law when he initially dismissed defence counsel’s objection and allowed Crown counsel to continue this line of questioning.
56It was also an error to permit Crown counsel to cross-examine the appellant on his use of disclosure. The appellant had a constitutional right to disclosure of the Crown’s case through pre-trial disclosure and he had a statutory right to be present for the prosecution’s case at the preliminary inquiry. This was not a case where cross-examination on some aspect of the disclosure was a legitimate step in a proper cross-examination as in R. v. Cavan (1999), 1999 9309 (ON CA), 139 C.C.C. (3d) 449 (Ont. C.A.). Also see R. v. White (1999), 1999 3695 (ON CA), 132 C.C.C. (3d) 373 (Ont. C.A.). Unfortunately, this improper conduct did not end with the cross-examination. Crown counsel also used this evidence in his jury address:
Chin [the deceased], as I said, cannot testify—the accused can. He has had a long time to think about it. He has had full disclosure. He is able to have listened to the preliminary hearing and the testimony here. And, quite frankly, he is in a position to tailor his evidence and just tell you as much as he wants to and as little as he wants to: and I submit that is what he has done. He has had a convenient memory in certain areas and relies on panic in another. [Emphasis added.]
57It was wrong and unfair for Crown counsel to attempt to exploit the appellant’s exercise of his rights. As is apparent, this was part of a more general theory on the part of the Crown, which the trial judge seems to have initially accepted, that the appellant had fabricated his evidence to conform to the disclosure. This allegation was unfounded on the evidence and indeed was somewhat inconsistent with some of the other prosecution evidence, including the testimony of Rose Cooper whom the appellant had told about the attack by the deceased and his use of the weapons to defend himself.
58It is necessary to consider whether subsequent events cured these errors or whether the appellant was deprived of a fair trial.
59As indicated, the trial judge eventually did stop this line of questioning and told the jury that there is no compulsion on any accused person to give a statement to the police or to cooperate. Defence counsel elicited from the appellant in re-examination that he had told a number of people, whom the Crown had not called as witnesses, about what had happened before he had disclosure of the Crown’s case.
60Defence counsel applied for a mistrial after the appellant testified. The trial judge ruled against the application. He noted that he had advised the jury that the appellant had a right to remain silent and not to cooperate with the police. In the charge to the jury, the trial judge returned to this issue and gave the jury the following direction:
Now, you may remember that a little dispute arose between counsel in relation to some of the questions asked by the Crown in the cross-examination of the accused. Now, I would just point out that in your presence I stated that there is no compulsion on any accused person to give a statement to the police and, further, nor does he have to cooperate with the police. I also stated in your presence that there is no onus on any accused to give a statement to the police or a statement to anyone else or even to cooperate with the police. Now, I draw this to your attention and wish to advise you further in this regard. The right of a suspect to remain silent is a basic tenet of our legal system that has now been recognized as a right protected by the Charter of Rights. It has nothing to do with the protection against self-incrimination but is an extension of the right of any citizen, unless otherwise obliged by law, to say anything or nothing when faced with an accusation. The right to remain silent continues up to and through the trial process. I wanted to point that out to you. It is fundamental that a person charged with a criminal offence has the right to remain silent and a jury is not entitled to draw any inferences against the accused because he chooses to exercise his right. It would be unfair to an accused and improper to draw any inference adverse to an accused because he chose not to make a statement or to give evidence at a preliminary hearing. Mr. Schell did not give a statement to the police and did not give evidence at the preliminary hearing. And from this you cannot draw any inference adverse to the accused. He is not required by law to do so. The Crown is not entitled to elicit a statement from him either on arrest or at a preliminary hearing. While speaking of an inference, I would also tell you that you cannot draw any inference of guilt by reason of the lifestyle of the accused. Do not draw any inference adverse to the accused by reason of his lifestyle, even though you may find it abhorrent. [Emphasis added.]
61While this direction dealt in clear and emphatic terms with the right to silence, the trial judge did not give a direction concerning the disclosure and did not rebut the improper suggestion in Crown counsel’s jury address. Such a direction was required in the circumstances. As Doherty J.A. said in R. v. White at p. 382:
As a matter of common sense, there may be considerable force to the suggestion that a person who gets full advance notice of the other side's evidence and testifies last is in a position to tailor his or her evidence to fit the disclosure. The inference, no matter how logical, cannot be drawn without turning fundamental constitutional rights into a trap for accused persons. Where any such suggestion seeps into the cross-examination of an accused, it must be eradicated by the trial judge. [Emphasis added. Footnote omitted.]
62A similar issue arose in R. v. Peavoy (1997), 1997 3028 (ON CA), 117 C.C.C. (3d) 226 (Ont. C.A.). Weiler J.A. explained at p. 235 the need for a special instruction:
The remarks of Crown counsel were prejudicial to the degree that it was incumbent on the trial judge to comment and thus to ensure that the position of the defence was fairly put to the jury. The failure of the trial judge to make additional comments on the Crown's improper remarks was an error of law. There is no general rule that an improper address to the jury by Crown counsel which the trial judge has not corrected is per se conclusive of the fact that there has been an unfair trial and that a conviction cannot stand: R. v. Pisani (1970), 1970 30 (SCC), 1 C.C.C. (2d) 477 (S.C.C.) at 478. In the present case, I am satisfied that the transgressions of Crown counsel at trial were so misleading and bore so directly on the central issues in the case that the appellant was deprived of a fair trial and I would allow the appeal on this basis.
63The error was more serious in Peavoy because the allegation of fabrication based upon the disclosure was made for the first time in Crown counsel’s jury address at a time when the defence had no opportunity to rebut it. As I have pointed out, the defence did have that opportunity in this case in re-examination of the appellant. However, the absence of an instruction in the charge to the jury was an error of law.
64In his ruling on the mistrial application, the trial judge considered some of the other improper aspects of the cross-examination such as the editorial comments about the appellant’s “usual larcenous conduct” in his ruling on the mistrial application. He concluded that the cross-examination did not cross over the line from the aggressive to the abusive. The trial judge did not mention in his ruling the improper cross-examination on the facts underlying the appellant’s prior criminal record or the other evidence of bad character such as violation of his bail conditions. The trial judge’s instructions to the jury, however, went some way to curing this improper cross-examination. In the course of Crown counsel’s cross-examination of the appellant, the trial judge gave this instruction to the jury:
Members of the Jury: you have heard of the term criminal record being referred to and you have heard credibility and, as you all know, credibility is just truthfulness. I will be explaining this in perhaps a little more detail in my charge to you. But there is only one reason for allowing a criminal record to be put before the witness and that goes as to the credibility. He happens to admit his criminal record and it just goes to his truthfulness as to how much of his evidence you are going to accept by reason of the fact that he does have a criminal record. You cannot say that because he has a criminal record that he is a person who is going to commit another offence. That is the wrong way to do it. It is just strictly for purposes of credibility. And that is very important once a criminal record is revealed in relation to an accused because you cannot proceed on the basis that, because he has done something wrong before, that he will do things wrong in the past. You have got to be very, very careful about that. And I will be repeating that to you in my charge and telling you again how important that aspect is. So, I am not going to say anything more at this point. And I think [Crown counsel] is ready to go back and endeavour to ask some more questions.
65In the charge to the jury he gave the following instructions:
I would also tell you that you cannot draw any inference of guilt by reason of the lifestyle of the accused. Do not draw any inference adverse to the accused by reason of his lifestyle, even though you may find it abhorrent.
Remember, you are not trying the accused on his lifestyle, and I have mentioned this earlier. It may be repugnant to you but it is irrelevant as to whether or not he is guilty as charged.
Now, you heard that Mr. Schell has a criminal record. The law provides that a witness may be questioned as to whether he has been convicted of an offence and, upon being so questioned, if he either denies the fact or refuses to answer, the opposite party may prove such conviction. Well, you will remember here that it was brought out in the examination in-chief that Mr. Schell has a criminal record. Now, I think I mentioned that to you at the time, too. But the evidence of the criminal record is admissible only to assist you in respect of the credibility of the accused. You must never use it as evidence that, because he has been convicted of other crimes, he is disposed to committing further crimes and that he therefore committed this crime. That is not the way to do it: you cannot do that. Please be very careful in your deliberations that you do not allow your mind to be influenced by the previous convictions. As I say, you take them into consideration only in deciding how much of the accused’s evidence to believe. It is for you to decide what weight is to be given to the conviction. So I would ask you to be very careful in that regard during your deliberations. Do not get off on the wrong track there.
66This court must accord considerable deference to the trial judge’s assessment of the effect of the cross-examination and his view that he could correct any prejudice to the appellant through proper and emphatic jury instructions. However, in making his ruling, the trial judge did not take into account the improper cross-examination on disclosure and the facts of the offences underlying the criminal record. He also never corrected the effect of Crown counsel’s improper cross-examination and jury address concerning disclosure. Having regard to the serious improprieties in Crown counsel’s cross-examination I cannot be satisfied that the instructions that were given were sufficient to overcome the prejudice to the appellant. I simply cannot be satisfied that the appellant had a fair trial. Notwithstanding Mr. Kelly’s very able submissions, I have not been persuaded that this is a proper case to apply the proviso in s. 686(1)(b)(iii) of the Criminal Code. The words of Doherty J.A. in R. v. R. (A.J.) (1994), 1994 3447 (ON CA), 94 C.C.C. (3d) 168 (Ont. C.A.) at 176 apply in this case:
There are, however, well-established limits on cross-examination. Some apply to all witnesses, others only to the accused. Isolated transgressions of those limits may be of little consequence on appeal. Repeated improprieties during the cross-examination of an accused are, however, a very different matter. As the improprieties mount, the cross-examination may cross over the line from the aggressive to the abusive. When that line is crossed, the danger of a miscarriage of justice is very real. If improper cross-examination of an accused prejudices that accused in his defence or is so improper as to bring the administration of justice into disrepute, an appellate court must intervene . . . [Emphasis added.]
67Finally, in reaching the conclusion that there must be a new trial, I have taken into account the two other errors discussed above concerning the answer to the jury’s question and the charge on after-the-fact conduct. These two errors concerned central issues in the case and contributed to the unsatisfactory nature of the trial.
DISPOSITION
68Accordingly, I would allow the appeal, set aside the conviction and order a new trial.
(signed) “M. Rosenberg J.A.”
(signed) “J. C. MacPherson J.A.”
(signed) “Robert J. Sharpe J.A.”
RELEASED: October 3, 2000
