R. v. Deane, 2000 CanLII 17047 (ON CA)

COURT OF APPEAL FOR ONTARIO

DATE: 20000218

DOCKET: C27849 and C27321

CATZMAN, CARTHY and WEILER JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN ) Milan Rupic, for the appellant
)
(Appellant) )
)
–and– )
)
KENNETH DEANE ) Alan D. Gold and Michelle K. Fuerst,
) for the respondent
(Respondent))
)
) Heard: September 15, 1999

On appeal from the conviction imposed by Fraser J. dated April
28, 1997.

WEILER J.A. (Dissenting):

Overview

1On April 28, 1997, the appellant was found guilty of criminal negligence causing death. He received a conditional sentence of imprisonment of two years less a day. The appellant appeals his conviction. The Crown cross-appeals the sentence.

2Of the several issues raised on the conviction appeal, I propose to deal with only one in detail. That issue is whether the trial judge erred in failing to hold a voir dire with respect to three sets of statements made by the appellant. For the reasons that follow, I would allow the appeal on this point and order a new trial. As a result, it is not necessary to deal with any of the other grounds of appeal raised as to conviction, and the Crown’s cross-appeal as to sentence is moot. Because there must be a new trial, I will give a bare outline of the facts sufficient to understand the context of the issue. Some detailed reference to the evidence is, however, necessary in order to appreciate the context in which the issue concerning the voir dire arose.

Role of Appellate Court when lack of voir dire is ground of appeal

3In R. v. Hodgson (1998), 1998 798 (SCC), 127 C.C.C. (3d) 449 at 472 (S.C.C.), Cory J. dealt with the role of an appellate court when it is alleged on appeal that the trial judge failed to hold a voir dire:

…the test for holding a voir dire is assessed by an appellate court’s objective review of the evidence in the record to determine whether something should have triggered the trial judge’s obligation to conduct an inquiry.

4With this issue in mind, I will now attempt to review the background facts and the evidence in the record pertaining to this issue.

Facts and Excerpts from Trial Record

5Ipperwash Provincial Park (the “Park”) was occupied by a group of First Nations people in early August 1995 in connection with a land claim dispute. As a result of certain incidents, an Ontario Provincial Police Crowd Management Unit (“CMU”) was instructed to secure a sand-covered roadway just outside the Park. On the night of September 6, 1995, the CMU assembled and walked down an asphalt road known as East Parkway Drive towards the Park. (For ease of reference, a map of the area is attached to these reasons.) The CMU was supported by armed members of the Ontario Provincial Police Tactics and Rescue Unit (“TRU”). The appellant had been a member of the TRU for 10 years and was an Acting Sergeant within the unit.

6When the CMU approached, the people on the sand-covered roadway retreated into the Park. The police, having accomplished their goal at that time, retreated. Some occupiers came back out of the Park, however, and the CMU was commanded to rush toward them at running speed. The members did so. Some of the occupiers were slammed with shields and others were struck with batons. One person, Cecil George, was seen struggling with a number of officers and he was eventually handcuffed and removed from the scene. The CMU moved back up East Parkway Drive. A school bus, followed by a car, came out of the Park and drove up East Parkway Drive towards the officers. The officers scattered to either side of the road. The car veered to the right and struck some of the officers. Several officers opened fire at the car, and the car began to reverse back towards the Park. As the car was backing up, the appellant fired three shots at a man who was crouched in front of the sand-covered roadway at the intersection of East Parkway Drive and Army Camp Road. The appellant believed he wounded the man and that the injury was possibly fatal; the man who was shot, Dudley George, did in fact die from the injuries. Following the incident in front of the Park, the appellant proceeded to “fall back” with the rest of the CMU to their headquarters, the Tactical Operations Centre (the “TOC site”), located between 500 metres and one kilometre west of the Park.

7The appellant was charged with criminal negligence causing death. The Crown’s position at trial was that the appellant had fired a spray of bullets randomly towards the Park following the demonstrators’ acts against the police. The appellant testified at his trial and denied that he had shot randomly into the Park area. He said that, as the car which struck the officers was reversing, he saw muzzle flashes from a sandy berm. The appellant testified that he fired his rifle at the muzzle flashes. Then he saw a man with a rifle move from the sandy berm, from which he had previously seen muzzle flashes, to East Parkway Drive at the point where it intersects with Army Camp Road. The man hid down by a ditch by three posts. The man aimed his rifle at the police, whereupon the appellant fired three bullets at him.

8In order to test the appellant’s credibility, he was cross-examined at trial with respect to statements that he made, or did not make, about the shooting, both during and immediately after the incident. Within this time period, there are three distinct stages. The first stage was during the confrontation in front of the Park, at which time the TRU officers were able to communicate with each other, as the dramatic events unfolded, by means of a radio communications system. Each officer had a walkie-talkie and a headset by which the officer could relay statements to other TRU members by activating a switch. These communications were monitored by a supervising officer, Sgt. Skinner, located at the TOC site. The second stage was during the TRU’s fall-back from the Park, at which time the officers continued to communicate by means of the radio communications system. (A tape recording of the radio communications that is normally made was unavailable in this case.) The third stage was at the TOC site itself, after the fall-back was complete, during which time the appellant, according to his testimony, made verbal reports to Sgt. Skinner. No voir dire was held with respect to the statements made during any of the three time periods.

9At the outset of the trial, Crown counsel indicated that there was no need for a voir dire with respect to Charter and voluntariness issues relating to certain notes and statements by the appellant. Defence counsel indicated he was authorized to admit that these notes and statements were freely and voluntarily given.

10The position of the defence was that the appellant had an honest and reasonable belief that Dudley George posed a deadly threat to officers when the appellant fired at him. At the end of his examination-in-chief, the appellant was asked the following questions and gave these answers: Q. How long did you stay on duty? A. Well for the remainder of that night I was still on duty. Q. What doing? A. I’m sorry? Q. Doing what? A. I spoke with my team leader, my commander and told him… Q. As a result, go ahead… A. Just told him what had transpired. Q. And did you as soon as you were asked to do so, cooperate with the SIU? A. Oh yes I did. Yes.

11In cross-examination, Crown counsel suggested to the appellant that the muzzle flashes had been a fabrication. In response, the appellant stated his initial testimony to the effect that he had mentioned muzzle flashes over the radio during the TRU’s fall-back from the Park. The testimony proceeded as follows:

Q. All right so you're telling us that
notwithstanding the fact you had time to
move 20 meters and notwithstanding the
fact that you never shot at those muzzle
flashes again, you never got on your
head set to warn your fellow officers
about this potential threat, is that
right?
A. Yes that's right.
Q. Now is it possible that you didn’t get
on the head set because there never was
muzzle flashes?
A. No it is not. I did not have time as I
told you to get onto the com system.
Q. Did you tell Staff Sergeant Skinner when
you got back to the TOC centre that
there were muzzle flashes out in the
sandy berm?
A. Yes I did.
Q. You did?
A. Yes. As soon as the crowd management
unit had formed up and started to go
back down East Parkway Drive, we had
accounted for all our members…
Q. Okay…
A. The crowd management unit and TRU team
members and it was at that time I
advised Staff Sergeant Skinner of the
events.
Q. Was this face to face or over the
communications…
A. No this was over the communication
system.
Q. This was over the communication system
now?
A. Yes it was.
…
Q. Is that communication over the TRU
headset is it taped?
A. Yes it is.
…
Q. Because clearly that would be
confirmatory of your position if you had
a tape that said that you told Staff
Sergeant Skinner that there were muzzle
flashes?
A. Yes.
Q. Now similarly, let’s go to your location
when you shot Dudley George. Now we’re
going to talk about, in some more detail
about his location at a later point and
his movements but all I want to know
right now is this, did you get on the
communication and say “there is a man
scanning our officers with a firearm.”
A. No I did not.
…
Q. Well did you get on the com system after
you shot him and say “I just shot a man,
he may still be dangerous out on the
roadway.”
A. I believe I said at the time to Staff
Sergeant Skinner that a bus had came
through our position, a car had came
into our position striking members and
also there is one individual down and we
required an ambulance.
The Crown then asked:
Q. Did you say anything over the
communication system about a rifle?
A. That I cannot recall
…
Q. … repeat what if you would please what
you did say with respect to the man that
you shot over the communication system?
A. I told Staff Sergeant Skinner that there
was an individual down and we would
require an ambulance at that area.
The Crown persisted:
Q. But you didn’t say to him, I just shot a
man with a rifle?
A. I do not believe I said that. I cannot
recall that.

12Subsequently, Crown counsel suggested to Deane that any statements he made over the radio communications system would have been heard by Sgt. Skinner, and that Skinner could verify what he heard if called to testify. According to the transcript:

Q. Okay so let me get this straight what
should be over the communication system
with respect to Staff Sergeant Skinner,
let's do this, you’re telling us that
anything that's over the communication
system should be on a tape, right? And
that tape should be available to us,
right?
A. It should be yes.
Q. And also Staff Sergeant Skinner should
have heard what you told him over the
communication system, right?
A. Yes.
Q. And if Staff Sergeant Skinner came and
testified he could tell us that he took
notes of the important things and can
remember it, what he heard you tell him?
Right?
A. Yes sir, sir.
Q. Have you discussed Staff Sergeant
Skinner's notes?
A. No I have not.

Mr. Scott: Your Honour I intend to go over these notes with Sergeant Deane pursuant to Section 11 of the Canada Evidence Act as a prior oral inconsistent statement and if necessary I will be proving them by calling Staff Sergeant Skinner. Okay. That's where I'm going with this.

Shortly after providing this notice of his intention to rely on s.11 of the Canada Evidence Act, R.S.C. 1985, c.C-5, the Crown continued with the cross-examination as follows:

Q. Okay, Okay I’m just going back a bit
because I want to be fair to you about
what went over the communication system
that is noted by Staff Sergeant Skinner
and one of the first things he does here
just to show this to you in his notes,
it says “Alpha” and you told us that you
were part of the Alpha unit?
A. Yes.
Q. It says “Alpha [Deane] radios seeing
person on roadway, something seen in
individual’s hand which could be a long
gun or bow.” And you told us that
indeed that’s what you did. You
communicated to Staff Sergeant Skinner
that initially you saw somebody with
what might have been a long gun or bow
and immediately thereafter you saw the
CM unit divide and hide, correct?
A. Yes it is.
…
Q. All right and then you hear, is it
Constable Beauchesne, is that his rank?
A. Yes
Q. Constable Beauchesne determines that the
item is not a weapon, correct?
A. Yes
Q. And you hear that over your
communication head set?
A. Yes.
Q. And then one of you and I don’t know
who, I presume tells Staff Sergeant
Skinner that it’s not a threat and the
CMU unit goes back on the roadway and
starts marching again, right?
A. Yes
Q. Okay, okay and then… We go further on
and we hear, this is what Staff Sergeant
Skinner says. “I hear commotion on
radio. I hear someone on radio saying
they’re shooting at us.” Is that you
saying that?
A. I cannot recall saying that.
Q. Okay did you hear it when one of your
other TRU members said that?
A. No I did not.
Q. Okay and then Staff Sergeant Skinner
says “I clearly hear numerous rounds
fired.”
A. Yes.
Q. And indeed you heard numerous rounds
fired?
A. That night I only heard two rounds being
fired.
…
Q. All right well we’ll get to the question
of silencers and what rounds you heard a
little later, let’s just push on with
Staff Sergeant Skinner’s notes. This is
you “Deane asked for ambulance.” Right?
A. Yes
…
Q. Okay so you ask for ambulance, do you
see the suburban [ambulance vehicle]
come forward?
A. Not that I can recall.
Q. All right well maybe it’s explained a
little later. “Deane advises natives
drove bus through CMU and fired on CMU.”
Did you just say that over the
communications?
A. Yes I did yes.
Q. Now when you say “fired on the CMU” is
this because you saw these muzzle
flashes from the bus?
A. Yes.
Q. But you didn’t hear any shots from the
bus?
A. No I did not.
Q. Okay that's a visual interpretation,
right?
A. Yes.
…
Q. Okay. Staff Sergeant Skinner asked for
clarification re: ambulance. Do you
recall him asking that?
A. Not that I recall no.
Q. Okay and then it says “determined
natives are injured not officers. And
natives retreated into park. Ambulance
recalled.” Now did you give him that
information to determine natives are
injured not officers, and natives
retreated into park?
A. I believe I did yes.
Q. Okay did you give this information to
him before or after you fired at the
muzzle flashes?
A. This would have been after.
Q. And before or after you shot Dudley
George?
A. After.
…
Q. What you do is you tell your Staff
Sergeant Skinner about the fact that the
natives drove a bus through the CMU and
fired on the CMU and you asked for an
ambulance, is that right?
A. Yes that’s right.
Q. Nothing about muzzle flashes, right?
A. Not that I can recall.
Q. Nothing about the fact you shot and
killed somebody, right?

13At this point, the appellant’s counsel objected. He submitted that it was unfair to use s.11 of the Canada Evidence Act to introduce the notes of another witness (who had not testified) and to suggest that the absence of something in those notes could be probative. He agreed that it was quite proper to ask “the policeman” whether or not he said certain things, but not to put in, as if this was original evidence, a probative value to the absence of a note. [14] The Crown responded that the concept of a prior inconsistent statement could also encompass silence and that he would undertake, if there was an inconsistency, to call Staff Sgt. Skinner, but that so far there was no inconsistency. [15] The appellant’s counsel said that the Crown’s statement assumed the notes were reliable as to what was said. The Crown responded that that was a different issue; the Crown’s obligation under s.11 was to call the maker of the note if there was an inconsistency but so far there was no inconsistency. He stated:

He’s agreeing with me that he didn’t say these things to Staff Sergeant Skinner so I don’t understand what the objection is. There is no inconsistency so far.

16The appellant’s counsel replied:

Sir I think it’s the whole tenure [sic] of an inference that the best evidence here is these notes…

17Defence counsel also stated that there was a duty to put the whole picture before the court and that this was not being done.

18The Crown replied in part:

… I’ve undertaken if there’s any issue to call Staff Sergeant Skinner and he can explain why if important things were said they’re not in his notes. But right now in my respectful submission this is classic cross-examination on a prior oral inconsistent statement which is permitted under Section 11 of the Canada Evidence Act and frankly so far I don’t even have an inconsistency.

The Court: I agree with you so far there is no inconsistency. I would just caution counsel to be careful as to how you apply it.

The cross-examination then continued:

Q. Okay… just to nail down that point
Sergeant Deane, the notes made no
mention of muzzle flashes, made no
mention of the fact that you shot a man
and as you tell us, you thought you
might have killed him that evening, the
notes don’t say anything about that, do
they?
A. No they don’t.
Q. And you didn’t say anything to Staff
Sergeant Skinner at the time about these
two important points, correct?
A. No I did not.
Q. All right now to be fair to you I want
to go through the rest of the notes, for
the Court, because of my friend’s
objection that I haven’t painted the
entire narrative here. The next note is
“CMU retreats to TOC.” Is that right?
A. Yes.
Q. “Covered by Alpha and Sierra”.
A. Yes.
Q. … And then it says, like you wouldn’t
know this but I’m just doing everything
here, so that we’re all singing from the
same song book. “I requested more…
support, ERT and TRU to Inspector
Carson.” ERT what does that stand for?
A. Emergency response.
Q. Team?
A. Yes.
Q. All right so obviously you weren’t in
the room but you may have heard it over
the head set, did you hear that, there
was more support?
A. No I did not do that*
Q. Okay “CMU arrives TOC”…
Defence counsel then objected as follows:

Sir with respect that is not a statement of the accused. … A prior inconsistent statement is a very plain simple thing. It is a recording of the utterances of the accused and that can quite fairly be put by the strength of Section 11. I submit it is an unfair tactic to take the notes of another officer and intersperse what all those notes say about other things. To draw an inference as to the time or sequence or when certain utterances were made. I submit that’s not fair. The best evidence is the author of them. The questions can be put but not the notes, I submit that they are not parts of the utterance.

19The Crown disagreed. The trial judge ruled that the cross-examination should be confined to the areas where the officer was, in fact, saying something. At this point the Crown continued the cross-examination with the following question:

Okay so you’re telling us, you just told us under oath that on the way back to the TOC centre, you told Staff Sergeant Skinner on the communications system that there were muzzle flashes. So you told us earlier that you did say something over the communication set up to Staff Sergeant Skinner about these two points I’m addressing, about the muzzle flashes and the news that you shot somebody with a long arm?

The appellant replied:
I don’t recall if I said that over the communication
system. I know I told him that once I returned to
the TOC site area.
This was an alteration in the appellant's testimony as
to whether or not he had mentioned muzzle flashes over
the radio.

20The cross-examination then shifted to the topic of the appellant’s statements to his supervising officer at the TOC site, immediately after the fall-back from the Park. After initiating this new line of questioning, the Crown asked:

Q. What did you say to Staff Sergeant
Skinner?
A. I told him about the events that had
transpired that night.
Q. Let’s hear it.
A. I told him about the initial advance.
The first advance of the CMU. The
second advance…
Q. Okay.
A. I told him about the muzzle flashes,
about my firing upon those. I told him
about the bus and the car and then I
further told him about myself shooting
at an individual.

21It was just after this point that counsel for the appellant objected to the lack of a voir dire. He stated:

Sir I’m basically troubled by this whole tactic of approach for the following reason. I had thought that there could not be more clear an understanding with prosecution counsel that we presented at the front of these proceedings that there is a very specific set of two statements made by the accused that were given to the SIU that were admitted to be voluntary and free and not have to tie the Court up in Charter challenges. And that we were formally waiving a voir dire as to whether the accused was foregoing Charter and common-law rights that he had to have those fundamentals proven and my colleague is not [sic] completely outside of that set of understanding. Questioning the officer on what he not only said but didn’t say in the course of having a duty to report to superiors and drawing inferences or asking, inviting the Court and there can be no other probative value of this, drawing an inference of whether there’s a partial giving of the report to a superior without asking the Court if it shouldn’t be voir dired and if there are massive Charter implications and whether an officer is under duty to be reporting to superiors, has voir dire protection if it’s going to be used for the purpose of criminal law. It is simply off the playing field that I thought we were on here…

22The Crown responded:

Well it’s an interesting point… I didn’t even analyse it in respect of whether there could be a voir dire issue because there were – the O.P.P. and certainly Inspector Carson, and Staff Sergeant Skinner are not acting in any way, in any sense of penal authority over Sergeant Deane and obviously are not the investigators of this matter. The SIU are the investigators and I was treating this solely as prior oral statements which I was going to explore as to whether they were consistent or inconsistent with my understanding of what they might say. But if my friend is saying… that there’s a need for a voir dire because Staff Sergeant Skinner is a person in penal authority over Sergeant Deane in the circumstances then maybe that’s what I would have to do. But I would have thought that the relationship between Staff Sergeant Skinner and Sergeant Deane and statements made certainly over the communication system at that point, they’ve got nothing to do with a criminal investigation with respect to the charge that now before this Court…

The Defence replied:

Sir with respect, there’s a very, very big difference between what is going on in the res gestae in the actual scene and where the prosecutor is now moving because his whole tone and thrust is the question… I think there’s an operational need to know and it’s all part of the res but once the event was clearly over and once there is a reporting to a superior officer after the event is done, there is the fundamental distinction in both police and the military law of the need to know in the chain of command versus the reporting that would later be used for a self criminatory purpose and that can be the only purpose that my friend is now bringing this in under… it’s clearly into Charter country. It’s not a question of relevance or probative. It’s a question of whether it’s self criminatory and needs a voir dire.

23The Crown acknowledged that there was a meeting of minds with respect to two specific statements made by the appellant, one to the SIU and another to both the OPP and the SIU. He stated: “[t]his is a very different thing we’re dealing with right now…”. The Crown submitted:

… I would say we’re still dealing with part of the narrative at this stage. And… in any event, Staff Sergeant Skinner, Inspector Carson notwithstanding the fact that they had superior rank to Sergeant Deane don’t fit into the category of the need for a voir dire because they’re not in penal authority over Sergeant Deane at the time these conversations take place. These conversations did not take place in any sense of the word when there was an investigation going on in the activities of Sergeant Deane….

24Defence counsel persisted:

Sir it’s not a case of penal authority. It’s not a case of whether these are police officers investigating a crime. It’s whether there’s a duty to report and if there’s a duty to report it triggers the issue if common-law and in Charter of whether what is being said is free and voluntary…

25The trial judge concluded that defence counsel was maintaining that there should be a voir dire and recessed to consider the objections and the ruling. Upon returning the trial judge stated:

The ruling is such that there is no requirement for a voir dire on this evidence. That the statements were not made to someone in a position to control or influence this judicial proceeding. Furthermore I find that the line of questioning is relevant. The matter of weight to be given, will need to be determined by the Court at the end of the day. That is my ruling.

26Crown counsel continued to cross-examine the appellant using Sgt. Skinner’s notes as evidence of the appellant’s statements.

27When Sgt. Skinner was called by the defence, he stated as follows in cross-examination by the Crown [emphasis added]:

A. On their way back to the TOC Sergeant
Deane communicated to me over the radio,
over several transmissions, a sequence
of events that happened at the scene.
Q. This is over the communications?
A. Yes.
Q. And tell us about that?
A. He informed that the CMU had advanced to
the park.
Q. Yes.
A. He informed me they had retreated.
Q. Yes.
A. I recall him informing me they advanced
again. He then told me about the bus
and car coming through.
Q. Yes.
A. And about them being fired upon.
…
Q. But he doesn’t mention anything at that
point about muzzle flashes?
A. No not that I recall.

28Inasmuch as muzzle flashes represented the existence of gunfire, the fact that the appellant mentioned being fired upon as opposed to the existence of muzzle flashes was, arguably, a distinction without a difference. The perception created by the cross-examination of the appellant was an entirely different one.

29Sgt. Skinner did not recall the appellant telling him about muzzle flashes. In cross-examination by the Crown, Sgt. Skinner agreed with the suggestion that if he had heard information about muzzle flashes he would have noted it. Sgt. Skinner was not asked whether his notes of what the appellant said at the TOC site contained any reference to gunfire.

30In his examination-in-chief, Sgt. Skinner testified that, at the TOC site, the appellant told him that he “had discharged his weapon at an armed individual” who fell down and was carried into the Park. In cross-examination, Sgt. Skinner equivocated as to whether he reported these statements by Deane to Inspector Carson. Essentially, he only recalled reporting that Deane discharged his weapon.

31Sgt. Skinner began his notes about 9 p.m. on the evening of the events in question. He did not make careful notes when he spoke with the appellant at the TOC site because he had other duties to attend to. It was not his duty to investigate. He wrote his notes of what happened at the TOC site the next day, September 7.

32The appellant submits that the trial judge erred in ruling that Staff Sgt. Skinner was not a person in authority and submits that a voir dire of the statements made during the three time periods should have been held. Inasmuch as no voir dire was held the appellant requests a new trial.

DISCUSSION

33The test to be applied by an appellate court in determining whether, on an objective review of the evidence, the trial judge’s obligation to conduct an inquiry was triggered is found in Hodgson, supra, at 472-5. Cory J. made these points:

• The test to be applied by an appellate court is different from the test applicable on a voir dire. The test on the voir dire is whether the accused reasonably believed the receiver of the statement to be a person in authority and whether the statement was made voluntarily. It is important not to confuse this latter test with the question of whether the trial judge had an obligation to conduct a voir dire. On a voir dire the accused’s subjective view is important. However, unless a voir dire has been held, the subjective view of the accused might not have been ascertained. The question as to whether the trial judge had an obligation to conduct a voir dire is consequently an objective one. Evidence as to the subjective view of the accused concerning whether he thought he was making a statement to a person in authority is not necessarily required when, for example, the receiver of the statement is a conventional person in authority.
• Unless a voir dire has been waived, the trial judge has an obligation to hold a voir dire of his or her own motion, notwithstanding the absence of any request by counsel, wherever the Crown seeks to adduce a statement made by an accused to a person in authority. If a waiver has been given, it is unnecessary to hold a voir dire.
• The trial judge’s obligation is triggered only where the evidence makes the need for a voir dire clear. When the receiver of the statement is a “conventional” or ordinary person in authority, such as a police officer or prison guard not acting in an undercover capacity, the connection to the authorities is apparent and the trial judge clearly has an obligation to hold a voir dire.
• On the other hand, when the receiver of the statement is not a “conventional” person in authority the defence has an evidential burden to discharge. That burden is to place the trial judge on notice that the receiver of the statement is alleged to be a person in authority and that a voir dire is required. The evidential burden may be discharged by evidence that the receiver of the statement is closely connected to the authorities. This is particularly so when the evidence discloses a close connection with the authorities before the statement is made as well as a close connection in time with the authorities after its receipt. When the evidence discloses such circumstances, the trial judge should inquire whether the defence is prepared to discharge its evidential burden on the person in authority issue or whether a voir dire is waived.
• The effect of the trial judge’s failure to hold a voir dire is dependent on whether defence counsel has an evidentiary burden to object to the admissibility of the statements. If the defence has an evidentiary burden to discharge, and has not discharged that burden, the failure to hold a voir dire will not amount to reversible error.

Was the trial judge obliged to conduct a voir dire as to whether Sgt. Skinner was a person in authority and, if so, at what stage?

34Reference to the content of the appellant’s statements and the alleged omission from the statements of any reference to muzzle flashes first arose during the Crown’s cross-examination of the appellant at trial. Inasmuch as no voir dire had been held to establish whether Sgt. Skinner was a person in authority or whether the statements were voluntary, the Crown’s conduct was improper. An accused person’s statements to a person in authority cannot be used in cross-examination unless they have first been ruled to be voluntary. In R. v. B.G. (1999), 1999 690 (SCC), 174 D.L.R. (4th) 301, 135 C.C.C. (3d) 303 at 318-20, Bastarache J. stated :

This question [whether the Crown can challenge the credibility of an accused by cross-examining him on a prior statement without a voir dire] has been examined by Canadian courts on a number of occasions, and in particular by this Court in Hebert v. The Queen, 1954 48 (SCC), [1955] S.C.R. 120, 113 C.C.C. 97, as early as 1954. In that case, the Crown had sought to cross-examine the accused on a statement he had made to the police, without a voir dire being held, to establish its voluntariness. With regard to this practice, Estey J. stated at p. 134:

A cross-examination upon such a statement, by the great weight of authority in our provincial courts, as well as in the court of criminal appeal in England, has been condemned.

His colleague, Fauteux J., dealt specifically with the issue of credibility as follows at p. 147:

[Translation] Moreover, did the Crown not seek to justify the introduction of this evidence in the record both at trial and in this Court merely through the provisions of sections 10 and 11 of the Evidence Act, which permit the credibility of witnesses to be challenged by cross-examining them on their prior statements which are inconsistent with their testimony. The issue of whether, during the cross-examination of an accused heard as a witness, the Crown may refer to statements made by him or her to the police, before it is determined whether the statements were made freely and voluntarily, has been considered in several cases. My colleague Cartwright J. referred to these decisions in his reasons and, like him, I am of the view that in the instant case, the Crown cannot further justify the position it has taken at trial and before this Court on this basis. The tendering of this evidence was therefore completely unlawful such that in my view it would have warranted, if not required, the declaration of a mistrial.

35More recently, this Court again dealt with the issue, although incidentally, in R. v. Calder, 1996 232 (SCC), [1996] 1 S.C.R. 660. In that case, Sopinka J. considered the admissibility of evidence under s. 24(2) of the Charter, drawing an analogy to the confessions rule. He put the question with regard to an involuntary confession as follows, at 673:

Is the distinction between use of a statement for all purposes rather than for the limited purpose of impeaching credibility a valid one in the application of s. 24(2)? The respondent draws an analogy with the practice relating to confessions. An involuntary confession could not be used for any purpose. [Emphasis added.]

Citing Monette v. The Queen, 1956 68 (SCC), [1956] S.C.R. 400, he added, at 673:

The authority of this case has not been questioned. Moreover, it is acknowledged by the appellant that involuntary statements may not be used by the Crown for any purpose…. [Emphasis added.]

36I do not believe that there can now be any doubt about the state of the law on this issue in Canada. Although it is possible, in certain circumstances, to distinguish between the use of evidence to challenge the credibility of an accused and its use on the merits, that is not the case with the confessions rule. The voluntariness of a statement does not depend on the use made of it. It is established only on the basis of the circumstances at the time the statement was made.

37The fact that the alleged statements of the appellant were themselves exculpatory and not inculpatory makes no difference to the requirement to hold a voir dire. A voir dire must be held before either an inculpatory or exculpatory statement by an accused to a person in authority may be admitted into evidence: R. v. Piche, 1970 182 (SCC), [1971] S.C.R. 23.

38A voir dire should have been held as to whether it was reasonable for the appellant to believe that Sgt. Skinner was a person in authority and whether the statements were voluntary as soon as the Crown attempted to cross-examine the appellant on what he had said to Sgt. Skinner. On an objective view of the evidence, I cannot, however, say that the trial judge’s obligation to conduct an inquiry on his own motion into whether Sgt. Skinner was a person in authority was triggered at this point. This is because, at the outset of trial, counsel told the trial judge that a voir dire would not be needed with respect to certain statements. A later excerpt in the transcript makes it clear that counsel were talking about the appellant’s statements to the SIU but when cross-examination of the appellant began the trial judge would not have known this. The fact that the trial judge did not, on his own motion, hold a voir dire did not amount to reversible error at this stage of the proceedings. At this stage, having regard to the comments of counsel at the beginning of the trial, the defence bore an evidentiary burden and was required to ask the trial judge for a voir dire into whether Sgt. Skinner was a person in authority and whether the statements were voluntary.

39Early in the Crown’s cross-examination of the appellant, however, the defence made an objection on the basis that the Crown was using Sgt. Skinner’s notes as a statement of the appellant without establishing that they were sufficiently reliable in the sense of reflecting the entire conversation. This objection was the focus of much argument on this appeal. In this regard, I note that there appears to have been a significant gap in time between the time when some of the statements were made and when they were recorded. The statement made by the appellant to Sgt. Skinner at the TOC, for example, were not recorded until the following day. In addition, the appellant testified that he did not see Sgt. Skinner’s notes prior to the trial. It would appear that the appellant did not have the opportunity to read or initial the notes at the time they were made to confirm that he agreed he had made the statements.

40The requirement that a confession be voluntary has two roots. One is a concern that only reliable evidence be admitted and the other is a concern for the administration of justice and principles of fairness; in particular, the principle against self-incrimination: Hodgson, supra, at 461. In relation to the reliability aspect, the appellant argues that the delay in Sgt. Skinner’s recording of what the appellant said to him, as well as his inability to recall with accuracy the statements made by the appellant, should result in the exclusion of the statements.

41The decision of Lessard v. The Queen (1982), 1982 3814 (QC CA), 10 C.C.C. (3d) 61 (Que. C.A.), cited with approval by Lacourcière J.A. in R. v. Lapointe and Sicotte (1983), 1983 3558 (ON CA), 9 C.C.C. (3d) 366 at 380 (Ont. C.A.), aff’d., 1987 69 (SCC), 35 C.C.C. (3d) 287 (S.C.C.), stands for the proposition that the accuracy of particular statements does not relate to their admissibility. I note, however, that Kaufman, The Admissibility of Confessions, 3rd ed. (1979), at 139, states that “… failure to recollect the complete conversation may jeopardize an otherwise acceptable confession, but once again this is a matter of appreciation for the judge”. Kaufman mentions R. v. Belanger (1978), 1978 2312 (ON SC), 40 C.C.C. (2d) 335 (Ont. H.C.J.) as an example of a case where the court concluded that the accused’s statement should not be admitted because, although the police officers acted in good faith and did not deliberately edit or try to recall only the incriminating comments made by the accused, they could not recall “the entire conversation with any certainty”. As a result the trial judge was unable to determine if the statement was voluntary. Here, Sgt. Skinner acknowledged that his notes did not record the entire conversation he had with the appellant.

42Another decision that makes the same point is R. v. Stefiuk et al. (No.1) (1981), 1981 3353 (MB QB), 61 C.C.C. (2d) 268 at 271 (Man. Co. Ct.), where an incomplete statement was also excluded. In Hodgson, supra, at 462-3, Cory J., in discussing the requirement that an accused’s statement be voluntary, commented: This approach [the focus on voluntariness over truth] to the rule determining the admissibility of a statement of the accused also accords with the view that the quality, weight or reliability of evidence is a matter for the jury, and that the admission of evidence which may be unreliable does not per se render a trial unfair: see, e.g., R. v. Buric (1996), 1996 1525 (ON CA), 28 O.R. (3d) 737, 106 C.C.C. (3d) 97; affirmed 1997 380 (SCC), [1997] 1 S.C.R. 535, 114 C.C.C. (3d) 95, and R. v. Charemski, 1998 819 (SCC), [1998] 1 S.C.R. 679, 123 C.C.C. (3d) 225, 157 D.L.R. (4th) 603. The confessions rule does not force a trial judge to exclude “unreliable” evidence that is highly probative of guilt. Rather it focuses on putative reliability, by analysing the circumstances surrounding the statement and their effect on the accused, regardless of the statement’s accuracy. Thus the “reliability” rationale and the “fairness” rationale for the confessions rule blend together, so as to ensure fair treatment to the accused in the criminal process by deterring coercive state tactics.

43Here, there is an issue as to whether a very important statement made during the fall back was the statement of the appellant. In particular, this is the testimony of Sgt. Skinner that he heard, on the radio, a report that: “we’re being fired upon”. The appellant could not recall making this statement. No one asked Sgt. Skinner whether the appellant made the statement although the statement appeared in his notes and was apparently attributed to the appellant. It was the existence of gunfire (as represented by muzzle flashes in the dark) on which the appellant allegedly formed the basis of his belief that the person he had seen move from the sandy berm had a weapon. Because no voir dire was held, Sgt. Skinner was not called by the Crown to establish that his notes represented the statements of the appellant or what those statements were alleged to be. The defence called Sgt. Skinner on the trial proper and, because of this, the defence had no opportunity to cross-examine him. Had there been a voir dire, the Crown would have been obliged to call Sgt. Skinner and the defence could have cross-examined him as to whether he attributed the statement, “We’re being fired upon”, to the appellant.

44When defence counsel objected that Sgt. Skinner’s notes did not represent the appellant’s statements, the trial judge should have been alerted to the necessity of enquiring whether the waiver given at the outset of trial pertaining to “certain statements made by the appellant” pertained to these statements and whether a voir dire was required. For the purposes of this analysis, however, I will assume that the trial judge was still entitled at this stage to proceed on the understanding that a waiver had been given. Consequently, there was an evidential burden on the defence to put the trial judge on notice that Sgt. Skinner was alleged to be a person in authority and that a voir dire was required.

45Defence counsel did not alert the trial judge to the necessity for a voir dire until the Crown sought to introduce the third set of statements made by the appellant to Sgt. Skinner at the TOC. Defence counsel stated that he had not objected to the first two sets of statements by the appellant because they were part of the res gestae. He appears to have been under the misconception that, if an accused person’s statements are made during the course of events, a voir dire need not be held. In fact, this is not the case. As with all statements by an accused, statements that form part of the res gestae are subject to the general requirement of voluntariness and a voir dire must be held: see Erven v. The Queen (1978), 1978 19 (SCC), 44 C.C.C. (2d) 76 at 94.

46In relation to the third set of statements made to Sgt. Skinner at the TOC, defence counsel stated in part “… it triggers the issue in common law and in Charter of whether what is being said is free and voluntary”. The trial judge understood the request as a request for a voir dire. The trial judge’s obligation to conduct a voir dire into whether the appellant reasonably believed Sgt. Skinner to be a person in authority was triggered at this point.

47The trial judge refused to hold a voir dire on the basis that Sgt. Skinner was not a person in authority. He appears to have accepted Crown counsel’s submission that because Sgt. Skinner was not engaged in the investigation, arrest, or detention of the appellant, he could not be a person in authority. In so doing the trial judge overlooked the fact that Sgt. Skinner was closely allied with those conducting the investigation. There is also a close connection in time between when the appellant made his statement to Sgt. Skinner and Sgt. Skinner’s statements to his superiors and the SIU.

48Ordinarily a “person in authority” refers to those persons formally engaged in the arrest, detention, examination or prosecution of the accused: Morris v. The Queen (1979), 1979 243 (SCC), 47 C.C.C. (2d) 257 (S.C.C.); R. v. Jesty (1996), 1996 5244 (NS CA), 155 N.S.R. (2d) 186 (N.S.C.A.). Persons in authority are also those persons whom the accused reasonably believes are in a position to influence or control the proceedings against him: Hodgson, supra, at 467-9. In reporting to his superior that he had shot a man, the appellant was certainly aware that an investigation would be conducted. I would expect that the appellant would also be aware that Sgt. Skinner would be making a report that would have some influence with respect to the investigation. When the maker of the statement believes the recipient of the statement can influence or control the proceedings against him or her, or when the maker believes the receiver is closely connected with the state authorities, the recipient is a person in authority: R. v. Hodgson, supra, at 468-69.

49The appellant was never given an opportunity to present evidence on the issue of whether he believed Sgt. Skinner was a person in authority at the time he made his statements to him. The question of whether or not a person is a person in authority is a subjective one, provided there is a reasonable basis for the belief: Hodgson, supra, at 468. The duty of the trial judge is not to first decide whether there is a reasonable basis for the appellant’s belief, and then proceed to a voir dire on the determination that the belief is indeed reasonable: Hodgson, supra.1 Once the circumstances surrounding the subjective belief are known, they will have an impact on the decision of whether the accused’s subjective belief was reasonable. When the issue of whether Sgt. Skinner was a person in authority arose, the trial judge ought to have heard evidence of the appellant’s subjective belief on the issue before making his ruling.

50The trial judge pre-empted any inquiry into the appellant’s subjective view by his ruling that Sgt. Skinner was not a person in authority and that a voir dire need not, therefore, be held. He did not give the defence the opportunity of discharging its evidentiary burden that the appellant reasonably believed Sgt. Skinner to be a person in authority. In my opinion, this was a reversible error. If the defence had had the opportunity to satisfy its evidentiary burden and had met it, the onus would have shifted to the Crown to show that the statements met the voluntariness and fairness requirements of the confessions rule.

51The respondent suggests that, even assuming Sgt. Skinner was a person in authority, a voir dire was not required because the appellant’s statements were obviously voluntary and did not require a voir dire. The Crown’s submission overlooks the existence of the protocol requiring the appellant to make a statement to Sgt. Skinner. The Crown’s submission is also untenable in law. The decision in Erven, supra, rejects the position that a voir dire is not required if the statement is “obviously volunteered”. Dickson J. stated at 91:

Nor can I accede to the… proposition… that a voir dire is unnecessary where a statement is “obviously voluntary” or “volunteered”, or where the voluntariness of a statement is “apparent from the circumstances under which it was made”, or when it can be “abundantly established in some other way”, absent a voir dire: see R. v. Spencer, supra; R. v. Sweezey, supra; R. v. Toulany (1973), 1973 1496 (NS CA), 16 C.C.C. (2d) 208, 6 N.S.R. (2d) 566 (N.S.S.C.A.D.).

No doubt the “obviously voluntary” test derives from a desire to encourage practical efficiency in the conduct of trials. On that point alone, there are grounds for some doubt as to the efficacy of the test. However, there are also other interests which must be weighed in the balance along with efficiency - (i) the assurance of a full hearing of the evidence of both sides on the issue of voluntariness; (ii) the maintenance of the rights of the accused, and (iii) the integrity of the functional distinction between the voir dire and the trial itself. It is in the light of each of these interests, as well as that of trial economy, that the proposed test for a voir dire ought to be measured.

And at 95:

If a statement is, in fact, “volunteered”, this means merely that voluntariness is easier to establish than in other cases. It does not mean there is a different procedure to determine voluntariness. The voir dire in such a case may take only a few minutes. On the other hand, where the initial impression is that the statement was voluntary, other evidence on the voir dire may point to quite the opposite conclusion. Either way, the rights of the accused will be protected and the efficient administration of justice enhanced by the holding of a voir dire.

He concluded at 97:

In my opinion, it is always necessary to hold a voir dire to determine the voluntariness of a statement made by an accused out of Court to a person in authority. Only in this way can fairness to the accused be assured. To require a voir dire only if doubt is cast on the voluntariness of a statement by the circumstances under which it was made, as determined from evidence given in the trial proper, would not only shift a burden to the accused but also, in other respects, cause him significant prejudice….

52The respondent also submits that a voir dire was not required in the circumstances of this case for three reasons: lack of objection by the defence to the statements being admitted as voluntary, waiver, and adoption of the statements by the defence.

53In Powell v. The Queen (1976), 1976 155 (SCC), 28 C.C.C. (2d) 148, the Supreme Court expressly rejected the contention that a voir dire was only needed where the defence objected to the admission of the statements. In any event, the defence did object to the admissibility of the statements made at the TOC.

54The waiver given at the outset of trial did not apply to the appellant’s statements to Sgt. Skinner. The fact that, during the Crown’s improper cross-examination of the appellant, defence counsel wanted all of the statements recorded in Sgt. Skinner’s notes, during both the engagement and the fall-back, to be put to the appellant for the sake of completeness, did not amount to a waiver. The request was made after the Crown began to improperly cross-examine the appellant on his alleged statements to Sgt. Skinner. There was no express waiver and a waiver of a voir dire must be express: R. v. Park (1981), 1981 56 (SCC), 59 C.C.C. (2d) 385 (S.C.C.) at 393. The appellant is not estopped from asserting that a voir dire should have been held into whether Sgt. Skinner was a person in authority and whether the appellant’s statements to him were voluntary.

55The third reason put forward by the respondent, for asserting that a voir dire was unnecessary, is that the appellant adopted the statements recorded in Sgt. Skinner’s notes in his evidence-in-chief when he said he told Sgt. Skinner “what had transpired”. The appellant did not, in his evidence-in-chief, adopt the alleged statements recorded in Sgt. Skinner’s notes. The reference by the appellant in his examination-in-chief to having told Sgt. Skinner “what had transpired” did not incorporate, by reference, the contents of Sgt. Skinner’s notes. The appellant had never seen the notes. In his examination-in-chief, the appellant was not asked, nor could he state, the content of his statement to Sgt. Skinner. To do so at that stage would have been a violation of the rule against giving evidence of prior consistent statements. At the end of the appellant’s examination-in-chief, it was not reasonable for the appellant to expect that the Crown would suggest that the appellant’s testimony as to seeing muzzle flashes was fabricated. That evolved extemporaneously during the cross-examination of the appellant. The appellant’s comment that he had told Sgt. Skinner what had transpired was not a rebuttal in anticipation of the allegation of recent fabrication. Consequently, the submission that the appellant adopted Sgt. Skinner’s notes as his statement fails.

56I would reject the submissions of the Crown that, even if Sgt. Skinner was a person in authority, it was not necessary to hold a voir dire.

57In many cases, such as this one, the guilt of the accused will depend solely on his or her credibility and on that of the other witnesses. A trial judge has a common law duty to prevent the admission of evidence that would cause a trial to be unfair: R. v. Harrer (1995), 1995 70 (SCC), 101 C.C.C. (3d) 193 at 205 (S.C.C.); R. v. White (1995), 1999 689 (SCC), 135 C.C.C. (3d) 257 at 292 (S.C.C.). If a voir dire had been held and Sgt. Skinner had been found to be a person in authority, the trial judge would have had to decide whether the statements recorded in Sgt. Skinner’s notes fairly represented the accused’s statements. Only if the Crown discharged its burden of proving beyond a reasonable doubt that the notes fairly represented the statements of the accused such that an adverse inference arising from the accused’s silence as to the existence of gunfire or muzzle flashes might be drawn could the trial judge admit the notes as the accused’s statement. It would then have been for the judge on the trial proper to decide, whether, in all the circumstances, the inference should be drawn.

Should the curative provision in s.686 (1)(b)(iii) be applied?

58The test for applying the curative proviso can be found in R. v. Wildman, 1984 82 (SCC), [1984] 2 S.C.R. 311, where Lamer J. stated at 328:

As regards resort by a Court of Appeal to the proviso of s. 613(1)(b)(iii) [now s. 686 (1)(b)(iii)] the law has been clearly laid down by this Court in Colpitts v. The Queen, 1965 2 (SCC), [1965] S.C.R. 739. Cartwright J.’s formulation of the test was as follows, at p. 744:

… once error in law has been found to have occurred at the trial, the onus resting upon the Crown is to satisfy the Court that the verdict would necessarily have been the same if such error had not occurred. The satisfaction of this onus is a condition precedent to the right of the Appellate Court to apply the terms of the subsection at all….

59Some examples of cases where the curative proviso has been applied when a voir dire into statements by the accused was not held include: R. v. Morris, 1979 243 (SCC), [1979] 2 S.C.R. 1041 and R. v. Drakes (1991), 1991 3194 (QC CA), 69 C.C.C. (3d) 274. In each of these cases, no objection was made at trial to the admissibility of the statements and this factor weighed in the decision of the appellate court. On the other hand, in R. v. Wells, 1998 799 (SCC), [1998] 2 S.C.R. 517, the Court held that the trial judge erred in failing to direct a voir dire of his own motion to determine whether statements made to the father of one of the complainants were voluntary, and refused to apply the curative proviso. In so doing, the Court held that the evidence adduced was sufficient to have alerted the trial judge to the need for a voir dire as to whether the father of the complainant was a person in authority. These decisions tend to exemplify the Supreme Court’s decision in Hodgson, supra, to the effect that it is only where the trial judge should have been alert to the necessity of a voir dire that reversible error may occur. Here the trial judge was alerted to the necessity for a voir dire into the question of whether Sgt. Skinner was a person in authority and whether the statements were voluntary.

60Another consideration in deciding whether to apply the curative proviso is whether the statements would inevitably have been ruled admissible if a voir dire had been held. If so, it can be said that the verdict would have been the same. The trial judge ruled that Sgt. Skinner was not a person in authority. Had the appellant been given the opportunity to present evidence on the issue, I am of the opinion that it is entirely possible that Sgt. Skinner would have been considered to be a person in authority, if not during the actual engagement, then at the time the appellant made his statements during the fall-back and at the TOC. As such, it is by no means clear that the Crown would have been able to discharge its burden of proving beyond a reasonable doubt that the statements were admissible. The statements made during the fall-back and at the TOC are closely connected in time. I cannot say that the statements would inevitably be held to be voluntary. An appreciation of the police protocol requiring the appellant to make a report and its effect on him at the time he made the statements is needed before a determination as to voluntariness can be made. There is also the very real issue as to whether the notes can fairly be said to represent the statements of the accused. On a broader basis, the court would have to consider whether the admission of the statements would operate unfairly against the appellant. I cannot say that the verdict would inevitably have been the same.

61The application of the curative proviso also entails a review of the properly admitted evidence to determine the effect of the trial judge’s error on the result at trial and to assess the way in which the error may have prejudiced the appellant’s ability to have a fair trial. See the comments of Doherty J.A. in R. v. Jackson (1991), 1991 11739 (ON CA), 68 C.C.C. (3d) 385 (Ont. C.A.) at 413. In Erven, supra, at 161, the trial judge used the appellant’s statements to decide an important issue of credibility against him and Dickson J. held that in light of this the curative proviso could not be applied. He stated:

I do not believe this to be a proper case for the application of s. 613(1)(b)(iii) [now s. 686 (1)(b)(iii)]. That is not to say that the failure to hold a voir dire will in every case provide grounds for ordering a new trial. As with every other case where inadmissible evidence is admitted at trial, consideration has to be given to the importance of the evidence improperly admitted in light of the whole of the case. When one considers, however, the the function of a voir dire, and the interests at stake in the holding of a voir dire, it will be but rarely that the admission of such statements will have caused no substantial wrong or miscarriage of justice, such that the appellate Court may apply s. 613 (1)(b)(iii).

62In the case at hand, it might be argued that, because the statements were exculpatory in nature, no substantial wrong or miscarriage of justice resulted from their admission into evidence. An exculpatory statement may have the same effect on the outcome of the proceedings as an inculpatory statement. Although the statements made were exculpatory, they were used to decide an important issue of credibility against the appellant. [63] In his reasons, the trial judge reviewed portions of the evidence at trial. In reference to Sgt. Deane’s evidence, he stated, in part:

“Later in cross-examination Sergeant Deane testified that he did tell Staff Sergeant Skinner about the muzzle flashes, about firing upon the muzzle flashes and further that he told him about the shooting of an individual. He was later then questioned by the Crown Attorney with regard to the first person that he told about shooting an individual. We have the following exchange.

Question by Mr. Scott: “And you told us
that you told Sergeant Skinner (a) that there
were muzzle flashes, and (b) that you shot
and perhaps killed somebody in this
operation, correct?”
Answer: “I’m not, I told him there were
muzzle flashes. I told him that I had
returned fire on the muzzle flashes. I
further told him that I had shot an
individual that had been scanning our
position with a rifle. This individual
faltered, fell to the ground and got back up
again and then was assisted back into the
park.”
Question: “Is that the first time that
you ever told anybody?”
Answer: “I don’t think I had mentioned that
on the way back from the sand covered
roadway.”
Question: “Pardon me?”
Answer: “I would have told Sergeant Skinner
and only him. He would have been the first
person.”
…
On re-examination by defence counsel the
accused was questioned regarding his
attendance on September 8th, 1995 at an
interview with investigators from the O.P.P.
and the S.I.U. He confirmed that during that
tape recorded interview he described the fact
that he had seen muzzle flashes, he described
the fact that he had returned fire. He
described where he had first seen Dudley
George. He described where Dudley George had
come from, what he had done and described
seeing Dudley George scanning the police with
a weapon.

64The trial judge also reviewed the evidence of Sgt. Skinner. After reviewing Sgt. Skinner’s evidence that he would not have expected Sgt. Deane to advise him over the radio communications of the history of what had happened respecting the shooting of the deceased, the trial judge reviewed the cross-examination of Sgt. Skinner. He stated:

On cross-examination Staff Sergeant Skinner was questioned about his meeting with Sergeant Deane at the tactical operation centre.

Question: “If we move to the next point
then in time, once Officer Deane was back,
did you have [a] conversation with him?”
Answer: “Yes.”
Question: “What do you recall him
telling you?”
Answer: “Sergeant Deane told me when he
came back, he told me he had discharged his
weapon at an armed individual. That he saw
that person fall down. His first reaction he
told me was to want to go forward to assist
but realized he could not because of the
situation. He told me that person was then
carried back in the park.”
Later on Sergeant Skinner testified that
he had no recollection of Sergeant Deane
saying anything over the communication system
that he saw muzzle flashes and that he had no
note of any reference to muzzle flashes. He
also testified that he recalled being told by
Sergeant Deane that he had shot an armed
person and agreed that he did not include
that point in his notes. (Emphasis added.)

65The trial judge said:

I find that Anthony O’Brien (Dudley) George did not have any firearms on his person when he was shot. I find that the accused Kenneth Deane knew that Anthony O’Brien Dudley George did not have any firearms on his person when he shot him. That the story of the rifle and the muzzle flash was concocted ex post facto in an ill fated attempt to disguise the fact that an unarmed man had been shot.

The accused testified that the Court heard essentially the same version of events that was given to the Ontario Provincial Police and the Special Investigations Unit in September 1995.

I find sir that you were not honest in presenting this version of events to the Ontario Provincial Police investigators. You were not honest in presenting this version of events to the Special Investigation’s [sic] unit of the Province of Ontario. You were not honest in maintaining this ruse while testifying before this Court. (Emphasis added.)

The trial judge’s findings were based on his review of the evidence. In that review of the evidence, Sgt. Deane’s testimony at trial as to what he said he told Sgt. Skinner, and his statements to the O.P.P. and SIU were contrasted with Sgt. Skinner’s evidence as to the alleged omission of any reference to muzzle flashes at the TOC. The trial judge apparently accepted Sgt. Skinner’s testimony that, if the appellant had said anything to him about seeing muzzle flashes at the TOC, he would have made a note of it. It was a factor in the trial judge’s conclusion that the evidence of muzzle flashes was concocted ex post facto. Having regard to the importance of this evidence in the trial judge’s conclusion respecting the appellant’s credibility, it cannot be said that the admission of the statements had no effect on the outcome of the proceedings. Even if the appellant’s statement met the traditional criteria for admission under the confessions rule, if a voir dire had been held, the trial judge would have had to consider whether to exercise his residual discretion to exclude the evidence concerning the absence of muzzle flashes because its admission might be given weight out of proportion to its reliability. In R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 at 21, Sopinka J. at 610-11 stated (albeit in the context of expert evidence):

Evidence that is otherwise logically relevant may be excluded on this basis, if its probative value is overborne by its prejudicial effect, … or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability.

The same principle is applicable here. Because no voir dire was held, the trial judge did not even advert to this consideration. It cannot be said that the verdict would inevitably have been the same.

66Finally, in order to apply the curative proviso, the Crown must prove that the trial judge’s error in failing to hold a voir dire and in admitting evidence that might otherwise have been excluded would not have provided the accused with an opportunity to conduct a different strategy at trial. As Lamer J. stated in Kopornay v. Canada (AttorneyGeneral), 1982 12 (SCC), [1982] 1 S.C.R. 41 at 57:

…The question therefore, as regards the
application of s. 613(1)(b)(iii), is whether
the Crown has discharged the burden of
satisfying the court that even if the accused
had known that the finding would be adverse
to him his defence would have been
necessarily the same…

I am not satisfied the Crown has discharged its burden in this regard.

67In the result, I do not believe this to be a proper case for the application of s.686(1)(b)(iii).

68For these reasons, I would allow the appeal, set aside the conviction, and order a new trial.

Signed: “Karen M. Weiler J.A.”
Map of East Parkway Drive where it intersects with Army Camp Road
(Not reproduced in electronic version)

CARTHY J.A.:

69I am unable to agree with Weiler J.A. as to the issue surrounding the failure to hold a voir dire, and, since I find no other valid grounds of appeal, conclude that it should be dismissed. In my view, the failure to hold a voir dire did not affect the verdict and the appellant could not hope to be in a better position at a new trial, given a favourable ruling on a voir dire as to what was stated at the T.O.C.

70Weiler J.A. has recited the factual and procedural background of this appeal and I will therefore turn directly to the issues.

71The evidence at trial indicated that when a member of the O.P.P. Tactics and Rescue Unit (“T.R.U.”) knows he has shot someone, he is to inform his commander, who in turn informs the incident commander, who reports to the Special Investigations Unit (“S.I.U.”) On this occasion Sergeant Deane was acting in accordance with that protocol when he reported to his commander, Staff Sergeant Skinner, at the Tactical Operations Centre (“T.O.C.”). In due course the S.I.U. was informed of the incident and commenced its investigation. Sergeant Deane was interviewed by the S.I.U. and related the same version of events as he presented at trial. A determination of whether Deane’s report to Skinner at the T.O.C. is admissible evidence without a voir dire has ramifications affecting every police shooting event that leads to a trial against a police officer, and, viewing such a finding as unnecessary in the present case, I choose to side-step the issue.

72For the purposes of these reasons, I make the assumption that a voir dire was necessary and that the evidence respecting Deane’s statements to Skinner should not have been admitted because they were made to a person in authority.

73On that premise, a full analysis of the evidence satisfies me that nothing inculpatory from such statements was extracted by the Crown from Mr. Deane or other evidence led by the Crown and, in fact, the accused benefitted from what occurred at trial by being given the opportunity he would not otherwise have had to give exculpatory evidence as to what was said to Skinner. This whole issue was complicated by the actions and inaction of defence counsel and requires detailed analysis of the progress of the evidence to illuminate what facts were proven and what the trial judge relied upon.

74The first witness called by the defence was the appellant, Deane. Deane was second in command of the T.R.U. on the evening of September 6, 1995, acting under orders from Staff Sergeant Skinner. He recounted in chief his role as leader of the field group of the T.R.U. whose function was to support the Crowd Management Unit (C.M.U.) by responding if that unit was threatened with gunfire. The appellant described the events as they developed in the field, much as related by other witnesses, and then seeing two distinct muzzle flashes aimed toward him from the area of a sandbar outside the park. As soon as he saw the muzzle flashes he discharged four rounds from his gun. He observed a car careening out of the park striking C.M.U. members and then saw a man crouching with a rifle aimed at his position. Fearful that the man would shoot, the appellant discharged three rounds from his carbine. He saw the individual falter and throw away his rifle. Thereafter, both units moved back to the command centre, which was a trailer in a parking lot about a half mile away.

75Deane’s evidence in chief concludes with his statement that he then spoke with his team leader (Skinner) and “just told him what had transpired”, after which he co-operated with the S.I.U.

76This final remark about reporting what had transpired to Skinner does not, in itself, constitute a waiver against any rights he had to protection against incrimination, but it did create a setting for what followed.

77The cross-examination began with questions concerning the communication system used in the tactical operation. Deane was equipped with a head-set and microphone which he could activate manually and which enabled him to speak to the T.O.C. and the other members of his unit. He stated that the muzzle flashes represented a threat to him and others in the unit, but that he did not communicate the incident because he didn’t have time to activate his communication system. He conceded that he moved 20 metres before the next incident without reporting the muzzle flashes. Deane was then asked whether he reported muzzle flashes to Skinner when he returned to the T.O.C. and he responded “yes, I did”. No objection was taken to that question, presumably because the answer was exculpatory.

78Deane was then questioned about spotting the man with a rifle and, again, he stated that he did not have time to report this on the communication system. His testimony was that he spoke over his radio at a later time requesting an ambulance for an individual who was “down”. The appellant’s evidence was that at this time, he did not report that he had just shot a man with his rifle.

79It should be noted that a recording is normally made of voice transmissions from the field. On this evening an error was made and the recorder not activated. Thus, Crown counsel introduced the subject of Skinner’s notes of these transmissions and stated that he intended to review them with Deane pursuant to s.11 of the Canada Evidence Act, as a prior oral inconsistent statement and, if necessary, call Skinner to prove what was said. This is clearly in the context, at that time, of the field communications which were not at trial or on appeal the subject of objection as requiring a voir dire. This was a perfectly proper approach under s.10 and s.11 of the Canada Evidence Act, R.S.C. 1985, Chap.c-5. The witness is confronted with the alleged statement and agrees or disagrees with the content. If an inconsistent statement is disputed by the witness the Crown may later call evidence to support the alleged prior statement. If the witness agrees with the previous statement there is no need for further evidence and, importantly for this appeal, if the Crown does not follow with contradictory evidence, the witness stands unrefuted before the trier of fact and the questions and suggestions concerning the alleged statement are not evidence of anything.

80The cross-examination continued with a lengthy review of Skinner’s notes of the radio transmissions which are generally accepted by Deane as accurate. Finally, Deane was confronted with the proposition that it seemed strange that neither in the notes nor in his testimony was there any mention of a report of muzzle flashes threatening his men or the fact that he shot a man and thought he might have killed him.

81At this point defence counsel objected that it was not proper to use s.11 of the Evidence Act to take Skinner’s notes and seek to prove the negative of what was not said. The Crown’s reply was that he wasn’t proving anything through the notes. He stated that his obligation under s.11 to call the maker of the notes would only arise in the event of an inconsistency. Mr. Scott pointed out that thus far, the appellant had agreed with everything that he had said and, therefore, there was no inconsistency.

82I agree with his position. At this point in the trial the evidence was clear and uncontested that neither the muzzle fire nor the fact that Deane saw a man with a gun and shot him had been reported on the radio.

83Defence counsel then made a statement which tended to steer the cross-examination:

MR. PEEL: Sir I think it’s the whole tenure[sic]
of an inference that the best evidence here is
these notes and if the issue is a question of the
flow and the path, I think there is a duty on this
prosecutor to not just be talking and focusing on a
time and a point when a crisis is still going on.
I think there’s a duty to put the whole picture
before the Court of the move back and whether
there’s clarification of those issues on the way
back.
MR. SCOTT: Well Your Honour I am
more than prepared to go through these notes
line by line but I’m only as good as these
notes. I don’t have anything more than these
notes and I’ve undertaken if there’s any
issue to call Staff Sergeant Skinner and he
can explain why if important things were said
they’re not in his notes. But right now in
my respectful submission this is classic
cross-examination on a prior oral
inconsistent statement which is permitted
under Section 11 of the Canada Evidence Act
and frankly so far I don’t even have an
inconsistency.

84A few questions later Crown counsel puts this question:

Q. All right now to be fair to you I want to go
through the rest of the notes, for the Court,
because of my friend’s objection that I
haven’t painted the entire narrative here.
The next note is “CMU retreats to TOC.” Is
that right?
A. Yes.

85There was then an interchange in which the Crown sought to eliminate any ambiguity about what was said over the radio and this exchange took place:

Q. Well I think I asked you before did you
do it over the communication system or
did you do it face to face. Now what’s
your evidence on this point?
A. I know I told him about the bus and the
car over the com system.
Q. Okay.
A. And I’m not sure if I told him
the same thing about the muzzle flashes
or myself shooting. I know for sure
that I talked to him face to face, as to
the whole incident.
Q. Okay well let’s go through this slowly
then. Is it now your evidence that you
did not say anything over the
communication system about muzzle
flashes or the native with the long arm?
A. I’m not positive. I’m not sure if
I said that or not.
Q. Okay so you don’t know, is the
best answer you can give on that.
A. Yes.
Q. All right but what you’re now
telling is that you did have a face to
face conversation with Staff Sergeant
Skinner?
A. Yes.
Q. And you told him, you
remembered, having memory of telling him
about muzzle flashes in the bush, is
that right?
A. Yes.
Q. Is that a conversation that
you had at the TOC centre immediately
after the incident?
A. Yes it was.

86And later:

Q. Well did you say to Staff Sergeant
Skinner “I shot a man out there.”
A. I believe I did yes.

87This latter evidence was repeated and, as the Crown persisted with questions emphasizing the seriousness of the event of a shooting, defence counsel finally interjected with his objection. He requested that a voir dire be held to determine the admissibility of statements made to Skinner at the T.O.C., on the grounds that Deane was reporting to a person in authority. This led to the ruling by the trial judge that a voir dire was unnecessary because “the statements were not made to someone in a position to control or influence this judicial proceeding”.

88In order to understand the impact of this ruling, as late as it came in the proceedings, it is worth looking back on the evidence to that point.

89Aside from any evidentiary legalities the events in the field and the telephone communications flowed seamlessly into the report to Skinner at T.O.C. This was the obvious belief of counsel as questioning moved from one area to the other. It was highlighted by defence counsel’s statement “I think there’s a duty to put the whole picture before the Court of the move back [to T.O.C.] and whether there’s clarification of those issues on the way back.”

90This is not to say that the legal ruling as to the voir dire has no significance because it was too late or that defence counsel invited the questions and thus cannot complain. I have assumed that a voir dire should have been held and a ruling made concerning inculpatory statements.

91The fact is that no inculpatory statements came into evidence to that point in the trial. Defence counsel may not have been inclined to object because his client was reaping nothing but benefit from the review of Skinner’s notes. Notably, he was able to put into evidence the self-serving statement that he reported the muzzle flashes and the shooting to Skinner – something that he admittedly was unsure of doing while on the radio transmissions. Any suggested blanks in the notes and the inference, if any, to draw from them, was not evidence and would have to await Skinner’s evidence, if he was called by the Crown to prove an inconsistency.

92Another point of significance at this stage of the trial is that neither then nor on appeal was an exception taken to cross-examination on the content of the radio transmissions, they being considered part of the res gestae. It was that cross-examination by the Crown that raised the issue of recent fabrication (which may have been one reason the defence later called Skinner as a witness) and that suggestion of recent fabrication arising out of the radio communications made it very helpful to the defence to be able to establish through Deane’s testimony the otherwise inadmissible evidence that he reported the full story to Skinner at T.O.C.

93Returning to the progress of the trial, following the voir dire ruling there was only one question of Deane concerning his statement to Skinner and the answer was a simple summary of what he had said earlier. The situation facing the defence was identical to that before the ruling. Insofar as the statements to Skinner at T.O.C. were concerned the evidence was clear and entirely exculpatory. There is not even a mention in evidence that Skinner’s notes were contradictory or lacked reference to such statements (although omissions later proved to be the fact and counsel would have known this at the time). We are concerned only with the evidence as it stood, as was the trial judge, and it remained at that point to be seen whether the Crown would pursue evidence of a contradiction.

94Prior to Deane leaving the stand the Crown and defence agreed that because recent fabrication had been raised it was proper for Deane to testify that he had reported all the events to the S.I.U. a day or so after the incident and in the same terms as at trial. Deane testified accordingly.

95Toward the end of the defence evidence Detective Skinner was called by the defence to testify. It was argued on appeal that this was necessitated by the erroneous voir dire ruling and the need to meet the allegation of recent fabrication. I have made the point earlier that this reasoning was untenable and if in fact that was defence counsel’s purpose, it was misguided. The only evidence before the court was that Deane had reported everything of significance to Skinner at the T.O.C. There were issues to clarify as to the radio transmissions going to recent fabrication but not as to the later conversation. Counsel had Skinner’s notes and, one would assume had interviewed him. [96] One argument favouring the appellant, Deane, on this appeal is that he can fairly state that with a voir dire ruling in his favour he could have called Skinner without fear that he could be cross-examined as to the discussion at the T.O.C. It remains to be seen what impact that had upon the evidence and the reasoning of the trial judge.

97Skinner confirmed in chief that Deane had reported to him at the T.O.C. that he had shot an armed man. No specific question was put as to muzzle fire. In cross-examination he confirms Deane’s evidence that he did not refer to muzzle flashes over the radio and then the only reference to muzzle flashes being referred to at the T.O.C. is:

Q. Now I’m going to suggest to
you sir, he never said anything in
that conversation face to face
about muzzle flashes, right?
A. I don’t recall him saying that
about muzzle flashes at that
time, no sir.

98That answer stands as the sole piece of evidence in the entire trial which flows from the voir dire ruling and is contrary to the interests of the defence. The overall effect of Skinner’s evidence on what flows from the voir dire ruling is that the defence was supported with a specific confirmation of Deane reporting the shooting of an armed man countered by a more vague failure to recollect a report of muzzle flashes.

99By way of observation, muzzle flashes reported during the action would be significant and memorable. Muzzle flashes referred to in an ultimate report of the shooting of a armed man would tend to be of less significance and make a lesser impression on the memory. Perhaps that is why, as will be seen, the trial judge makes no reference in his reasons to this segment of the Crown’s cross-examination.

100The general rule in a case such as this, depending on findings of credibility, is that the trial will be considered unfair if any significant evidence going to credibility is improperly introduced – particularly if the trial was by jury where the basis for the findings is unknown. The obvious reason for the necessity of a new trial is that the accused will be in a better position on the issue of credibility if the trier of fact does not consider the impugned evidence.

101The fundamental question is whether the result would necessarily be the same if the impugned evidence had not been admitted. In this case, I see an ancillary and complementary question. Has there been a substantial wrong or miscarriage of justice, (s.686 (1)(b)(iii) of Code), if the credibility of the appellant would not be enhanced by a favourable voir dire ruling at a new trial?

102In my view, the circumstances here are unusual in that, upon full analysis, and despite the conceded error, the appellant, Deane, cannot expect a fairer trial than he has received. If at such a trial he asserts successfully the same position on the voir dire the evidence against his credibility will be stronger than at this trial. I am also satisfied that the evidence concerning the reporting of muzzle fire at the T.O.C. was of such modest significance in the context of the entire body of evidence, that it played no part in the trial judge’s conclusion, as reflected in his reasons. See R. v. Jackson (1991), 1991 11739 (ON CA), 68 C.C.C. (3d) 385 (Ont. C.A.).

103Let me explain the first proposition. At a new trial, Deane cannot avoid his admitted failure to report either muzzle flashes or the shooting of an armed man over the radio during the action. Therefore, recent fabrication will be an issue. He can meet that issue in part, as he did at this trial, by establishing that he recounted the full details to the S.I.U. But this leaves an unfilled gap on the recent fabrication issue because it is a known fact that he reported something at the T.O.C. to Skinner. It would not be known what he reported but the gap would exist and the trier of fact could not fill it in with something favourable to Deane on the question of recent fabrication. On that scenario he would be in a more vulnerable position respecting credibility than at this trial where it was established that he did report the shooting of an armed man and, on his testimony, the muzzle flashes, offset only by Skinner’s evidence that he made very sketchy notes and had no recollection of muzzle flashes.

104The reality is that at a new trial defence counsel would probably react as defence counsel did in this trial and push the Crown to expand the evidence from how Deane reacted in urgent and pressured circumstances to include what was stated in the calm of the T.O.C. quarters. In other words, to improve his evidentiary position on credibility to the very level it was at in this trial.

105In sum, this trial was fair because the overall evidence of Deane’s credibility was as favourable as it could be and that credibility would undoubtedly be diminished by exclusion of what was said to Skinner at the T.O.C.

106I will now turn to the trial judge’s reasons for conviction as a reflection of the significance of the evidence as to reporting muzzle flashes at the T.O.C. The reasons open with a review of the evidence, particularly that of the accused, with lengthy excerpts from a transcript extending over 23 pages. With the exception of two short references to Deane’s evidence as to reporting to Skinner in the T.O.C. the balance of the references are to Deane’s actions during the exercise in the field and his radio transmissions. The review of the evidence of other defence witnesses concentrates on what occurred in the field. With respect to Skinner’s evidence, the trial judge refers to the report by Deane in this excerpt:

Question: “What do you recall him telling you?”
Answer: “Sergeant Deane told me when
he came back, he told me he had discharged
his weapon at an armed individual. That he
saw that person fall down. His first
reaction he told me was to want to go forward
to assist but realized he could not because
of the situation. He told me that person was
then carried back in the park.”
Later on Sergeant Skinner testified that
he had no recollection of Sergeant Deane
saying anything over the communication system
that he saw muzzle flashes and that he had no
note of any reference to muzzle flashes. He
also testified that he recalled being told by
Sergeant Deane that he had shot an armed
person and agreed that he did not include
that point in his notes. [Emphasis added.]

107It is worth noting that the only inculpatory evidence against Deane which arose from the voir dire ruling – that Skinner didn’t remember him reporting muzzle flashes at the T.O.C. – is not mentioned by the trial judge in these very extensive and detailed reasons.

108The reasons then continue with a long recital of the trial judge’s skepticism as to the defence witnesses’ version of what happened during the field exercise, without any mention of reporting events at the T.O.C. It is apparent that the trial judge’s total focus is upon the evidence bearing directly on field events. He concludes:

There were no Crown witnesses or defence witnesses that saw any weapons in the hands of the First Nations people except for Sergeant Deane and except for Constable Chris Cossett. And at this point perhaps I will comment on the testimony of Constable Cossett. The Crown called his testimony amusing which is one word. I might choose others. Rather than scrutinize Constable Cossett’s testimony for any grains of truth that might fall out, I have dismissed it entirely as being clearly fabricated and implausible.

I accept Sergeant Hebblethwaite’s evidence that he saw a man turned in the direction of the park after he got up from his one knee, that he was bent at the waist and facing the park, before Sergeant Hebblethwaite turned his attention elsewhere.

In the Court’s view this is not a situation of honest but mistaken belief. The accused has maintained throughout that Dudley George was armed. And the accused was able to even describe some of the features of the rifle that he saw Dudley George holding.

I find that Anthony O’Brien (Dudley) George did not have any firearms on his person when he was shot. I find that the accused Kenneth Deane knew that Anthony O’Brien Dudley George did not have any firearms on his person when he shot him. That the story of the rifle and the muzzle flash was concocted ex post facto in an ill fated attempt to disguise the fact that an unarmed man had been shot.

The accused testified that the Court heard essentially the same version of events that was given to the Ontario Provincial Police and the Special Investigations Unit in September 1995.

I find sir that you were not honest in presenting this version of events to the Ontario Provincial Police investigators. You were not honest in presenting this version of events to the Special Investigation’s unit of the Province of Ontario. You were not honest in maintaining this ruse while testifying before this Court. I have considered all of the evidence presented in this case, and on the basis of the evidence that I have accepted, I find you Kenneth Deane guilty as charged.

109Apart altogether from my previously stated view that the trial was fair despite the voir dire ruling, I cannot see any possibility that this trial judge would have come to a different conclusion if he had excluded from his mind the evidence of what was said at the T.O.C. Overall that evidence weighed in favour of the accused, as did his full relation of events to the S.I.U., but was not sufficient to overcome what the trial judge found was overwhelmingly convincing evidence of what occurred in the field. The rifle that Dudley George was said to be holding was the primary focus of attention and the trial judge was unimpressed by Skinner’s evidence that the appellant reported shooting an armed man. A mere inability on the part of Skinner to remember whether muzzle fire was reported would not be of significance in that context.

110I would therefore not accede to this ground of appeal because the trial was as fair, or fairer to the appellant, than a new trial would be and because there is no reasonable possibility that the verdict would have been different had the error at issue not been made. See R. v. Bevan, 1993 101 (SCC), [1993] 2 S.C.R. 599.

Appeal from Application for Mistrial

111One month after the conviction, defence counsel moved before the trial judge for a mistrial on the ground of a breach by the Crown of a pre-trial agreement. After argument of this motion and a request to lead evidence on the issue of the agreement, the trial judge found that no prima facie case was presented to justify further inquiry and dismissed the motion for a mistrial.

112The allegation of defence counsel was that the Crown had agreed prior to trial that there would be no contest by the Crown as to the fact of muzzle flashes being seen during the skirmish.

113It is my conclusion that the suggestion of such an agreement is untenable against the trial record. To refer to only some of the references from the record cited on the appeal by Crown counsel:

(1) The pre-trial agreement was meticulously negotiated and
reduced to writing and contains not even an oblique
reference to muzzle flashes.
(2) On the evidence known to the Crown of no sighting of muzzle
flashes by other witnesses it would be irresponsible to
acknowledge their existence.
(3) Defence counsel in closing argument stated:
… and so it is against that backdrop that I must then
submit to the Court that if one stares squarely in the
face the accusation of the prosecution, the most
pivotal accusation, it is that some time from some
point right around when the bus is leaving and the car
is leaving because by any measure there are no more
gunshots after that time, by anybody’s evidence after
they are leaving, that some time in there and before
morning when Officer Deane makes his notes that he
fabricates a lie because, says Crown, what has happened
is he has randomly shot at a person he saw who was
defenceless and he’s fabricated a lie that that man had
a gun, fabricated a lie that he shot at muzzle flashes,
and in order to urge the Court to find such fabrication
the prosecution centres 90 percent of its attack of
Officer Deane at the beginning and at the end of the
critical incident that by any measure must have taken
about 30 seconds.

114My conclusion is that defence counsel, in his disappointment over the verdict, rationalized a variation on an understanding he had reached with the Crown – that the charge would not be directed to the shots aimed at the muzzle flashes – into an agreement that the muzzle flashes occurred.

115There is in my view no merit in this ground of appeal. There was no basis laid for calling evidence and the application was properly dismissed.

Fresh Evidence

116The appellant presented a voluminous carton of evidence which he proposed to have considered by this court. Most of the evidence was conceded to have been available at the time of trial, which led counsel for the appellant to argue that trial counsel may have been incompetent in presenting a defence by not calling these witnesses.

117The basic argument was that a miscarriage of justice would result if this evidence was not introduced at a trial.

118As described to the panel the evidence included that of neighbours who would testify as to gunfire in the area on occasions prior to the one in question; the deceased, Dudley George, being seen on prior occasions with a gun and – the only evidence not available with reasonable diligence to the defence – testimony of a neighbour who was listening on a police scanner on September 6th and heard someone say “they’re shooting at us, return fire.”

119There was evidence adduced at trial by the defence as to the expectancy that the natives were armed and more of the same would not alter the finding, based on the evidence that on this occasion they were not armed. The evidence of what was heard on the police scanner was hearsay and did not bear upon any evidence given by defence witnesses, who did not testify that any such communication affected their conduct.

120The balance of the fresh evidence related to the alleged agreement between counsel, and as I have already concluded, the record did not justify a hearing on this issue.

121I therefore conclude that there is no merit in this ground of appeal. The appeal against conviction is therefore dismissed.

Crown Appeal Against Sentence

122The Crown appeals against the conditional sentence of two years less a day to be served conditionally and seeks a penitentiary term. The emphasis of the argument was on the length of the sentence rather than the fact that it was conditional. Of course, a longer sentence could not be served conditionally.

123The sentence was imposed on July 3, 1997 and has now been served in full, including 180 days of community service. If a longer sentence is imposed by this court credit would have to be given for having served two years less a day, even though not served in an institution. If a sentence of three years had been imposed at trial he would by now have reached his statutory release date.

124The trial judge gave very careful attention to the considerations bearing upon sentence in this case, his reasons running some 25 pages, and he emphasized the unique circumstances presented to him.

125If I had been the sentencing judge I might well have been persuaded that a penitentiary term was justified but, giving very special deference to this trial judge’s conscientious analysis, and the other factors I have referred to, I would not interfere.

126The sentence appeal should be dismissed.

Released: FEB 18 2000 Signed: “J.J. Carthy J.A.”
JJC “I agree: M.A. Catzman J.A.”

• The members of the ERT and TRU were on different radio frequencies and could not hear what was being said by one another.

1 In her concurring reasons in Hodgson, for the minority, L’Heureux Dubé J. reached the conclusion, at 495-6, that the trial judge’s duty to hold a voir dire “is triggered where the evidence shows the reasonable possibility that the accused’s statement was made to a person in authority”. This formulation differs from the reasons of Cory J., and from the one that I have adopted here. Cory J. concluded at 472:

… the test for holding a voir dire is assessed by an
appellate court’s objective review of the evidence in the
record to determine whether something should have triggered
the trial judge’s obligation to conduct an inquiry. This
test is different from the test applicable on the voir dire,
which requires the trial judge to undertake an examination
of the reasonable belief of the accused and the
circumstances surrounding the making of the statement to
determine… whether the receiver is a person in authority….