COURT OF APPEAL FOR ONTARIO
MCMURTRY CJO., GOUDGE AND BORINS JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
(Respondent)
and
JOSEPH POIRIER
(Appellant)
James Stribopoulos
for the Appellant
Desmond E. McGarry
for the Respondent
Heard: June 6, 2000
On appeal from the conviction by Keenan J. with a jury dated
January 27, 1998.
BORINS J.A.:
1The principal issue raised on this appeal is whether the
trial judge erred, in answering a question from the jury, by
telling them only that there was no evidence in respect to the
point raised by the question. It is the position of the
appellant that in the circumstances of this appeal a more
comprehensive answer was required, as well as a limiting
instruction.
Factual background
2The appellant was jointly charged with Seth Martin and Ryan
O’Reilly with the commission of an aggravated assault on Lawrence
Bent by wounding him. Each of the accused was convicted.
3The assault took place at about 11:00 p.m. in downtown
Toronto. Bent testified that as he walked along a laneway he was
chased and surrounded by the three accused men and a fourth man,
who was a young offender. He stated that Martin asked him if he
had asked them whether they were smoking crack, to which he
replied that he had not done so. This was followed by Martin,
without any warning, punching Bent in the mouth, causing him to
fall backwards to the pavement. Bent said he was then kicked
several times by Martin and, to a lesser extent, by O’Reilly.
The incident ended when the four men ran northbound through the
laneway.
4As for the appellant’s role in the assault, Bent testified
that he stood two or three feet away and did not take part in the
assault. However, Bent testified that the appellant was one of
the group that chased him down the laneway and surrounded him so
that he had “no option but to stay there”. As well, Bent did not
hear the appellant say anything to the men who assaulted him.
5Martin and O’Reilly testified and gave a different account
of what occurred. They described Bent approaching them with an
offer of drugs in return for sex. As Martin turned toward Bent
and said “What?”, Bent reached out and grabbed Martin’s
testicles. As a result, Martin punched Bent in the mouth. It
was a rather hard blow and it caused him to fall backwards.
Martin and O’Reilly denied kicking Bent while he was on the
ground. After Bent stood up, the four men ran way and were
apprehended by police officers who were in the area.
Proceedings at trial
6Although Martin and O’Reilly testified, the appellant did
not. It was the Crown’s position, relying on s. 21(1)(b) of the
Criminal Code that the appellant was a party to the offence
because he was a member of the group that chased, and surrounded,
Bent.
7About three hours after the jury had retired to consider its
verdict it returned with a written question. Although the
written question did not become part of the record, it is
apparent from what the trial judge said to counsel that this was
the question:
We request clarification regarding the
first time any of the accused informed the
police that Mr. Bent grabbed Mr. Martin by
the testicles. By first time, we mean at the
time of arrest or preliminary hearing. Is
there any answer other than there is no
evidence at all?
8Counsel agreed that the appropriate answer to the question
was that there was no evidence, and the trial judge answered the
question as follows:
THE COURT: Thank you, members of the
jury. I have your question, which I have
read and discussed with counsel. Your
question is the jury requests clarification
regarding the first time any of the accused
informed the police that Mr. Bent grabbed Mr.
Martin by the testicles, and your subnote
says, by first time we mean at the time of
the arrest or preliminary hearing. Members
of the jury, I can answer your question only
by saying there is no evidence on that point.
All right, you may retire.
About one hour later the jury returned with its verdict by which
it found each of the three accused guilty.
9Subsequently, in the course of his reasons for sentence, the
trial judge placed his own interpretation on the jury’s question.
He stated:
In imposing a sentence in this case, I
have to consider what was the nature of the
offence and how was it committed. Mr. Laan,
in the course of his submissions, said we
don’t know what the jury decided. I
disagree. I have not the slightest doubt
that the jury decided that this was a swarm
by four youths with the intention of beating
up a passing pedestrian. For whatever
reason, we can never be sure. We do know,
however, that is what happened. We do know,
as well, that the jury rejected the defence
that was advanced by two of the accused
[Martin and O’Reilly]
It is my view that the question posed by the
jury during the course of their
deliberations, for which I was not able to
give an answer, was very instructive. The
jury concluded that the defence presented was
a carefully, crafted defence that opened the
only possible defence where identity
essentially could not be otherwise deflected
or reflected. It was a recent fabrication in
order to avoid responsibility. [Emphasis
added.]
10With respect to the trial judge’s observation that the
defence raised was a “recent fabrication” he no doubt had in mind
Martin’s evidence that Bent had grabbed him by the testicles. I
would observe, however, that the trial judge had not instructed
the jury concerning the probative value of a recently concocted
explanation. See, e.g., R. v. Coutts (1998), 1998 4212 (ON CA), 126 C.C.C. (3d) 545
(Ont. C.A.), leave to appeal refused [1998] S.C.C.A. No. 450.
However, as I explain subsequently, it was not open to the Crown
to invite the jury, in assessing Martin’s credibility, to rely on
the argument that Martin had recently fabricated, or concocted,
his account of how the incident occurred.
11It would appear that there was some evidence to which the
trial judge could have referred, assuming that there was any
relevance to the question from the jury. When Martin was cross-
examined by the Crown, the following exchange took place after he
explained what had occurred:
Q. Well, you knew from your, one of
your close friends, sir, what he was talking
to him about. Why did you stick around close
enough to let Mr. Bent touch you in this way?
A. I, I can’t really answer that.
I think I’ve answered it to the best of my
ability. It happened fast. I asked him,
“What?” and he, he proceeded to do what he
did.
Q. I’m going to suggest to you, sir,
the reason you can’t answer that is because
it didn’t happen that way; isn’t that right,
sir?
A. No; you’re wrong.
Q. I’m going to suggest to you, sir,
that you invented this grab by the
complainant to justify punching him in the
face, isn’t that right?
A. That’s not right.
12Martin was then cross-examined about his arrest close to the
scene of the incident while he was hiding in a bush and about the
cause of a wound to his right hand. The cross-examination
continued:
Q. And I’m going to suggest to you,
sir, that you knew that things did not look
good for you in that position?
A. Um –
Q. And so you decided to concoct the
story about the complainant grabbing you in
the way that he does – in the way that you
say that he did?
A. No. See, I don’t trust police.
Police never been very nice to me. I have
done some wrong things but police are not
nice to me. I’ve been beaten up and stuff.
You know, everybody thinks police are good
people but there’s a lot of bad police that
beat you up and do things, so I don’t
consider them there to serve and protect me.
So I don’t talk to them or trust them and I
run from them.
Analysis
13In R. v. S. (W.D.) (1994), 1994 76 (SCC), 93 C.C.C. (3d) 1 (S.C.C.) Cory J.
considered the significance and importance of questions from the
jury. He stated at pp. 6-7:
The importance of giving a full and
proper response to questions from the jury
has been recognized by this court on a number
of occasions. In R. v. W. (D.) (1991), 63
C.C.C. (3d) 397 at pp. 410-1, [1991] 1 S.C.R.
742, 1991 93 (SCC), 3 C.R. (4th) 302, the following was
stated on behalf of the majority:
When a jury submits a question, it gives a
clear indication of the problem the jury is
having with a case. Those questions merit
a full, careful and correct response. As
