R. v. Diu, 2000 CanLII 4535 (ON CA)

Regina v. Diu Regina v. Lam [Indexed as: R. v. Diu]

49 O.R. (3d) 40

[2000] O.J. No. 1770

Docket Nos. C26605 and C25597

Court of Appeal for Ontario

Labrosse, Feldman and Sharpe JJ.A.

May 25, 2000

Criminal law -- Evidence -- Character evidence -- Bad character of co-accused -- Two accused charged with murder and attempted murder -- Accused calling evidence of co-accuseds' bad character and disposition to commit weapons offences -- Evidence of bad character not admissible had Crown sought to adduce it -- Evidence properly admitted -- Trial judge erring by failing to instruct jury that co-accuseds' bad character and disposition relevant only to determination of accused's guilt -- Jury should have been instructed that they could not use evidence either when assessing co-accuseds' guilt or his credibility -- New trial ordered.

Criminal law -- Evidence -- Character evidence --

Deceased -- Accused charged with murder relying on self- defence -- Crown unsuccessfully seeking to adduce evidence during case in chief that neither deceased had criminal record -- Trial judge ruling evidence regarding deceaseds' character admissible only in reply and suggesting it be adduced through deceased's family members -- Evidence relevant to self-defence -- Trial judge erring by failing to consider whether probative value of character evidence was outweighed by prejudicial effect -- Prejudicial effect significantly increased by leading evidence in reply -- Evidence from deceased's parents regarding their peaceful disposition of very limited probative value -- Evidence of deceased's peaceful dispositions should have been excluded -- New trial ordered.

Criminal law -- Evidence -- Hearsay -- Admission of prior inconsistent statements for their truth -- Crown witness D giving unsworn videotaped statement -- Statement very incriminating to accused -- D testifying at trial that he was unable to recall significant details of shooting recounted in videotaped statement -- Trial judge admitting statement for its truth as it satisfied reliability and necessity tests per R. v. B. (K.G.) -- Police failing to ensure that D appreciated consequences of lying -- Trial judge erring in discounting importance of absence of oath on basis that D was Vietnamese -- Defence counsel unable to effectively cross-examine due to D's alleged memory failure -- Trial judge erring in finding that good faith of police and urgency of interviewing D enhanced reliability of statement -- Trial judge erring in finding that statement was more reliable because it was made shortly after offence -- Trial judge erring in admitting statement for truth pursuant to R. v . B. (K.G.) -- New trial ordered.

Criminal law -- Evidence -- Hearsay -- Admission of prior inconsistent statement for truth -- Witness T providing sworn videotaped statement to police -- Statement in Vietnamese -- T using word which defence experts testified meant "shoving" or "pulling match" -- Statement supporting two accused's claim of self-defence -- T testifying that he used word but disputing meaning -- Accused seeking to have T's videotaped statement admitted for its truth -- Trial judge concluding statement met neither reliability nor necessity tests per R. v. B. (K.G.) -- Trial judge erring in finding that sworn statement unreliable but correct regarding necessity -- Trial judge erring in instructing jury that expert translation evidence admissible solely in relation to T's credibility -- Jury entitled to rely upon expert evidence to conclude that T observed shoving match -- New trial ordered.

Criminal law -- Charge to jury -- Consciousness of guilt -- After-the-fact evidence -- Two accused charged with murder and attempted murder -- Accused admitting most of acts but relying on self-defence -- Trial judge not erring in instructing jury that accused's after-the-fact conduct could indicate awareness that acts were unlawful and without valid defence -- Trial judge erring in not separating relevance of such evidence with respect to specific offences as it could provide basis to infer guilt with respect to one of offences but not necessarily of all offences -- Evidence of varying probative value regarding different offences -- New trial ordered.

The accused D and T were each charged with two counts of murder and three counts of attempted murder arising from a shooting incident at a massage parlour. They did not deny that they had fired guns, but claimed that they had acted in self- defence. The jury convicted D of one count of second degree murder and two counts of attempted murder. L was convicted on two counts of second degree murder and two counts of attempted murder. Both accused appealed.

Held, the appeal should be allowed.

During the Crown's case in chief, counsel indicated that he intended to introduce evidence to rebut the defence of self- defence by showing that it was less likely that the deceased were armed or had otherwise acted as aggressors. The Crown wished to call evidence that neither deceased had a criminal record. The trial judge allowed the Crown to call the character evidence, but insisted that the evidence be called in reply rather than in chief. He suggested that the Crown lead the evidence through a member of each of the deceased's families. The Crown called the mother of one of the victims and the father of the other, who testified that they had never heard of their sons getting into fights. These were the last witnesses heard by the jury. Evidence of the disposition of the deceased may be relevant to a charge of murder where the accused relies on self-defence. There is no rule excluding evidence of the disposition of the deceased or a third party where such evidence is relevant, provided that the trial judge concludes that the probative value of such evidence is not outweighed by its prejudicial effect. In this case, evidence tending to show that, given their dispositions, the victims were unlikely to have been armed or to have been the aggressors was relevant to the defence of self-defence. However, the trial judge erred in not turning his attention to the potential misuse of the evidence. The evidence led by the Crown had virtually no probative value as a parent is not well placed to know of a child's reputation for violence. In addition, there was a danger that the evidence would arouse the jury's emotions of sympathy towards the victims and their families and hostility towards the accused. The prejudicial effect was significantly amplified by the trial judge's decision to allow the witnesses to be called in reply. If the evidence was to be admitted at all, it should have come as part of the Crown's case in chief. It was clear from the way the trial proceeded that self-defence was a live issue before the clo se of the Crown's case. There was no element of surprise. Nor was the Crown unable to anticipate that the evidence might be needed. The trial judge erred in admitting evidence of the peaceful dispositions of the two deceased.

A witness to the shootings gave a videotaped statement to the police while in police custody shortly after the shootings. The statement, which was not under oath, was highly damaging to the accused. At trial, the witness retracted significant aspects of the videotaped statement and claimed not to remember much about the shootings. The trial judge erred in admitting the witness's videotaped statement for the truth of its contents under the principled exception to the hearsay rule. While the statement was clearly necessary, there were insufficient indicia of reliability. The test for reliability is more stringent in the case of a prior inconsistent statement than for other forms of hearsay. The statement was not under oath. Although the police listed a number of offences with which D could be charged, the officers who took the statement did not impress on the witness the consequences of not telling the truth. The trial judge wrongly and unacceptably discounted the significance of the oath on the basis that th e witness was of Vietnamese heritage. Moreover, in view of the witness's professed inability at trial to recall any of the significant details of the shootings that he had related in his videotaped statement, the trial judge erred in his assessment of the effectiveness of cross- examination of the witness as an indicator of the reliability of the prior inconsistent statement. The trial judge erred by relying on confirmatory evidence from the trial to establish the threshold reliability of the statement. He also erred by treating the urgent need to conduct the interview of the witness and the good faith of the police officers who took the statement as indicia of reliability. Finally, he erred in considering the timing of the statement as enhancing its reliability. The fact that a statement is made shortly after the events described therein does not make the statement more reliable. Given the accumulation of errors, the ruling of admissibility could not be sustained.

T gave a sworn, videotaped statement to the police. In that statement, made in Vietnamese, T used the phrase "giang co" when describing the events immediately before the shooting. A police officer who was translating the questions and T's answers during the videotaped statement translated the disputed phrase as "an argument broke out". The Crown produced a proposed translation from a translator for use at trial who said that the words meant "there was a shoving match". Defence counsel sought admission of the prior statement for its truth pursuant as a principled exception to the hearsay rule pursuant to R. v. B. (K.G.). The defence also retained an expert who translated the words as "a tugging match". It was crucial to the accuseds' defence, particularly Lam's, that there was a shoving or tugging match before any shots were fired. At trial, T denied that he meant that there was either a shoving or tugging match, only that there was a verbal dispute. The Crown successfully argued that the videotaped statement should not be admitted for its truth. The trial judge ruled that it was not reliable as it was made two years after the events and it was not necessary to admit it as T could be cross-examined at trial about what he had said during the videotaped interview. The trial judge then instructed the jury that the experts' evidence could be used only to assess the credibility of T at trial and that there was no admissible evidence that T said there was a shoving or tugging match. The trial judge erred in holding that the timing of the statement rendered it unreliable. The statement was made under oath, after police told T the consequences of lying. T was available to be cross- examined at trial. The fact that the statement was made many months after the events did not render it unreliable. However, the trial judge was correct in finding that it was not necessary to admit the statement for its truth as T acknowledged in his trial testimony that he said "giang co" during the videotaped in terview.

However, the trial judge's limiting instruction that the translators' evidence could be used solely when assessing T's credibility was in error. It was open to the jury to rely upon this evidence to conclude that T had said that there was a "shoving" or "tugging match". Once T admitted saying the words "giang co", the words were admissible for all purposes and could form an evidentiary foundation for the conclusion that there had been some form of physical altercation before the shooting started.

At trial, Crown counsel relied upon evidence of after-the- fact conduct by both accused. After-the-fact conduct is problematic where more than one offence has been committed or where the issue is the level of culpability. Both accused admitted to having committed the actus reus of various offences but denied culpability for their acts, relying on the defence of self-defence. It was open to the trial judge to conclude that the evidence of after-the-fact conduct could be left to the jury on the basis that it was relevant to the issue of whether the accused had truly acted in self-defence or whether they had committed culpable homicides. However, the trial judge erred in failing to give a limiting instruction. Each accused was charged with five counts, and each accused admitted to having committed the physical act of some, but not all, counts. While after-the-fact conduct might provide a basis for inferring guilt for one of the offences charged, it did not follow that it provided a logical basis for inferring guilt for all of the offences charged. The trial judge should have instructed the jury that D's after-the-fact conduct was of limited probative value in determining his culpability for the murder of one of the deceased, particularly if the jury concluded (as it did) that D had not shot two others that survived in self-defence. A similar limiting instruction should have been given with respect to the use of L's after-the-fact conduct.

During D's cross-examination, L's counsel led evidence of D's bad character and disposition to commit weapons offences that would not have been admissible if led by the Crown. That evidence was admissible. However, the trial judge erred in not instructing the jury that it might consider evidence of D's disposition in deciding whether it had a reasonable doubt that L committed the crime, but that it could not use the evidence to find D guilty. He also erred in stating that the jury could use the bad character evidence in deciding D's credibility. He should have made it clear that the bad character evidence could not have been used to further the Crown's case at all, even on the issue of credibility.

During the trial, L did not testify that he was provoked and his counsel did not allude to provocation in his address. Prior to the trial judge's charge to the jury, counsel for both accused specifically requested that the defence of provocation be put to the jury as it was available on the evidence. The trial judge told the jury that counsel for L had asked that the defence of provocation be put to the jury. In the circumstances, the trial judge was required to put the defence of provocation to the jury as there was an evidentiary basis to support it. He should not have told the jury that L had asked that the defence of provocation be considered. An instruction stating that the defence is being put at the request of the accused might well have the effect of undermining the defence advanced at trial by suggesting that the accused was advancing alternative defences.

L called his defence first and testified on his own behalf. Counsel for D did not ask L any questions regarding the ownership of a handgun in cross-examination. D testified that L owned the handgun. Counsel for L objected on the basis that his client had not been given an opportunity to meet this attack on cross-examination. He asked for a severance. The trial judge agreed that counsel for D should have cross-examined L on this point but refused severance and held that the appropriate remedy was to allow L to re-open his case to reply to the new matters raised by D. L's counsel chose not to re-open his case. The trial judge called the jury's attention to the fact that L had the right to re-open and chose not to exercise it. His decision to permit L to re-open his case and call further evidence was within his discretion and represented a reasonable attempt to balance the rights of L and D in the circumstances. However, the trial judge erred in calling the jury's attention to the fact that L had chosen not to re-open. While the manner in which the trial judge dealt with the issue did not violate s. 4(6) of the Canada Evidence Act, R.S.C. 1985, c. C-5, as L had already chosen to testify and, in deciding not to call reply evidence, was not exercising his right to silence, the approach taken by the trial judge served only to exacerbate the prejudice to L caused by the failure of D's counsel to cross- examine him on the points at issue.

While it might have been possible to apply the proviso in s. 686(1)(b)(iii) with respect to some of the trial judge's errors had they occurred in isolation, when the cumulative effect of the errors was considered, the inevitable conclusion was that a new trial was required.

APPEAL by the accused from convictions for second degree murder and attempted murder.

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Michael Code and Leslie K.M. Paine, for appellant, A. Bau Diu. James Lockyer and P. Andras Schreck, for appellant, Chinh Troung Lam. Susan G. Ficek, for the Crown, respondent.

The judgment of the court was delivered by

SHARPE J.A.: --

OVERVIEW

1On December 18, 1993, the appellants Diu and Lam went to a massage parlour. While there, Diu stole possessions belonging to a group of four other patrons of the massage parlour. When these four men realized their possessions were missing, they confronted the appellants. The situation grew increasingly tense. The four men called for reinforcements and were joined by three friends. Shortly after the reinforcements arrived a shooting took place.

2Three weapons were involved in the shooting: Diu fired a Colt .45 calibre semi-automatic handgun (the "Colt .45"); Lam fired a Para-ordinance .45 calibre semi-automatic handgun (the "Para-ordinance"); one of the other seven men fired a .32 calibre handgun. Ten .45 calibre bullets and one .32 calibre bullet were fired during the shooting.

3When the shooting stopped the appellants stood uninjured. However, two of the other seven men were dead and two others were seriously injured.

4Diu and Lam were charged jointly on two counts of first degree murder and three counts of attempted murder. The appellants were tried jointly by a court composed of a judge and jury, Ewaschuk J. ("the trial judge") presiding. On June 13, 1996, after a 44-day trial, they were found guilty of certain offences. The jury convicted Diu of three offences:

1. second degree murder of Van Thai Nguyen ("Thai");

2. attempted murder of Van Hue Bui ("Bui"); and

3. attempted murder of Lai Pham ("Pham").

The jury convicted Lam of four offences:

1. second degree murder of Minh Chau Nguyen ("Chau");

2. second degree murder of Thai;

3. attempted murder of Pham; and

4. attempted murder of Khoan Dao ("Dao").

5The appellant Diu was sentenced to life imprisonment without parole for 15 years for the second degree murder conviction. For the two attempted murder convictions, Diu was sentenced to life imprisonment and 25 years concurrent. The appellant Lam was sentenced to life imprisonment without parole for 15 years for the second degree murder convictions and 18 years concurrent for the attempted murder convictions. Both Diu and Lam also received lifetime firearms prohibitions.

6The appellants appeal their convictions. Diu also appeals his sentence. The appeals were heard together.

THE FACTS

7The appellants Lam and Diu spent most of Friday, December 17, 1993 and Saturday morning drinking beer and taking drugs at Diu's residence. They left for the massage parlour at approximately 6 a.m. Saturday and, according to Diu, purchased more drugs on their way. They were still at the massage parlour when, at approximately 1:30 p.m., Thai, Chau, Pham and Nhu Vu Tien ("Tien") arrived. The four men placed their possessions in lockers and went for steam baths and massages.

8The appellant Diu stole money and other possessions while the four men were away from the locker room. The four men returned and discovered the theft. They claimed that Diu had stolen some $3,000 from them and waited to speak to the owner of the massage parlour. There was evidence that, while in the locker area, Diu pulled a gun and pointed it at Pham. Diu denied this allegation.

9At one point, Diu left the massage parlour for a short period of time but returned. Shortly thereafter, three other men arrived at the massage parlour. Bui and Dao arrived together. Pham Trung Xuan ("Xuan") arrived separately and left shortly thereafter. Although the evidence varied as to why these three men came to the massage parlour, the clear implication was that they had been called to come to assist Thai, Chau, Pham and Tien, the four men whose possessions had been stolen.

10Sometime around 4 p.m., the appellants and the remaining six men were together on the ground floor of the massage parlour when the shooting occurred.

11There was evidence that a total of 11 shots had been fired. Diu fired two shots from the Colt .45 and Lam fired four shots from the Para-ordinance. Four additional shots were fired from a .45 calibre gun but the bullets found at the scene could not be positively linked to either .45 calibre gun. There was some dispute as to which appellant fired the four unattributed shots. There was evidence that the .32 calibre gun initially jammed. One of the other six men cleared the jam and fired the gun once. A .32 calibre shell casing and a live round of .32 calibre ammunition were found at the scene.

12Four of the six men were shot. Chau and Thai died from gunshot wounds to the head and chest. Two other men were shot, but survived. Bui was shot in the chest and Pham received gunshot wounds to the face and right hand.

13Diu was arrested at his residence the following morning and Lam was apprehended in April 1994, nearly four months after the shooting.

THE THEORY OF THE CROWN

14It was the Crown's position that the appellants had been having a drug party since the night before the shooting. They went to the massage parlour and stole money and possessions from the lockers in order to buy more drugs. When the theft was discovered, they attempted to intimidate Thai, Chau, Pham and Tien into leaving. The appellant Diu pointed the Para-ordinance at Pham in the locker room. When it became apparent that the four men were not going to leave without a resolution of the situation, the appellants formed a common intention to kill the four men if it became necessary. Diu slipped the Para-ordinance to the appellant Lam and left the massage parlour to retrieve the Colt .45 from Lam's jeep.

15After Bui and Dao arrived, Lam demanded that Chau give the appellants his rings. The appellants then began shooting and were jointly responsible for all charges. It was the Crown's position that, aside from the appellants, Dao was the only person armed at the time of the shooting. Dao carried the .32 calibre gun that initially jammed but was eventually fired once as the appellants were fleeing the premises.

16The Crown submitted that the claim for self-defence and provocation, in addition to being inherently implausible, was contradicted by surviving witnesses, the ballistics evidence and the nature of the injuries.

THE THEORY OF THE APPELLANT DIU

17Diu admitted that he was armed with a Colt .45, which he was carrying for protection when buying drugs early that morning. He maintained that the gun belonged to the appellant Lam.

18Diu admitted stealing money and possessions from the four other patrons, without Lam's knowledge. The four men claimed to be out far more money than Diu had taken. He left the massage parlour to look for the owner or for someone who might lend him money to give to the victims of his theft and then returned. Tensions escalated when the four men called for reinforcements to assist them. Shortly after Bui and Dao arrived, Bui pointed his gun at Diu and Diu pulled out his Colt .45 and fired twice in self-defence. One shot hit Pham by accident and the other hit Bui. He fired two other shots without hitting anyone else.

19Diu claimed that he did not shoot either of the two men who were killed, namely, Chau and Thai. These men were shot by Lam. Diu said he was not aware that Lam had a gun.

20Diu also claimed that the ballistics evidence supported his testimony.

THE THEORY OF THE APPELLANT LAM

21It was the position of Lam that he did not know that Diu had committed the theft until after the shooting. He did not have a gun in his possession nor was he aware that Diu was armed until Diu pointed the gun at Pham in the locker area. Lam also testified that he had never seen the gun before and did not know where Diu got the gun.

22The situation intensified when the four men called for additional men and guns as back-up. Bui pulled a gun to shoot Diu and Thai pulled the Para-ordinance and threatened to kill Lam. Lam scuffled with Thai and Chau. Lam grabbed the Para- ordinance and fired at Chau in self-defence. Lam fired two more shots in panic and two other shots to prevent one of the other four from firing the .32 calibre gun. He was not certain which shots hit Thai. He then fled the scene.

23Lam maintained that the physical evidence of a scuffle and the ballistics evidence supported his version of events.

THE VERDICT

24The jury rejected the appellant Diu's defence of self- defence in relation to Bui and Pham and found him guilty on two counts of attempted murder. The jury also found him guilty of the second degree murder of Thai. However, the jury acquitted Diu on the charge of the first degree murder of Chau and on the charge of attempted murder of Dao.

25The jury rejected Lam's defences of self-defence and provocation and found him guilty of the second degree murder of Chau and Thai and guilty of the attempted murder of Pham and Dao. However, the jury acquitted Lam of the attempted murder of Bui.

THE ISSUES

26The appellants raised four common grounds of appeal on their convictions:

1. Did the trial judge err by admitting evidence of the peaceful dispositions of the deceased men Thai and Chau?

2. Did the trial judge err by admitting Dao's videotaped statement for the truth of its contents?

3. Did the trial judge err by allowing the videotape and transcript of Dao's statement to go to the jury room?

4. Did the trial judge err in his instructions to the jury on the permissible uses of evidence of the appellants' after- the-fact conduct?

27The appellant Diu raised four additional issues:

1. Did the trial judge err in refusing to order severance in view of the evidence led by Lam as to Diu's bad character?

2. Did the trial judge err in his charge to the jury on the permissible use of evidence of Diu's bad character?

3. Did the trial judge err in his charge to the jury on the issue of self-defence?

4. Was the jury's verdict that Diu was guilty of the second degree murder of Thai unreasonable?

5. Was Diu's sentence unreasonable?

28The appellant Lam raised four additional issues:

1. Did the trial judge err by giving a limiting instruction to the jury respecting the discreditable conduct of Diu?

2. Did the trial judge err by refusing to admit the videotaped statement of Tien for the truth of its contents?

3. Did the trial judge err by telling the jury that Lam "asked" to have the defence of provocation put to the jury?

4. Did the trial judge err by informing the jury that he offered Lam the right to reopen his case?

29The respondent raises the following issue:

1. If this court concludes that the trial judge erred on any or all of the grounds raised by the appellants, did such error or errors give rise to a substantial wrong or miscarriage of justice or may the proviso be applied?

ANALYSIS

I. Did the trial judge err by admitting evidence of the peaceful dispositions of the deceased men Thai and Chau?

(a) Facts

30During the Crown's case in chief, counsel indicated that he intended to introduce evidence that neither Thai nor Chau had criminal records. The stated purpose of such evidence was to rebut the defence of self-defence by showing that both Thai and Chau were of peaceful disposition and that it was therefore less likely that they had brought the Para-ordinance or had otherwise acted as the aggressors.

31The trial judge refused to allow the evidence relating to the lack of criminal records, but indicated that he would allow the Crown to call character evidence relating to Thai and Chau. The trial judge suggested that a family member might be called. He indicated, however, that the evidence could not be called as part of the Crown's case in chief, but that it could only come by way of reply, and then, only if the appellants provided a basis for the defence of self-defence.

32Counsel for Lam objected vigorously to the proposed evidence, but also took the position that if it were to be admitted, it should be called as part of the Crown's case and not by way of reply. Counsel for Lam submitted it was evident from the way the trial had gone and the way Crown witnesses had been cross-examined that self-defence was a live issue and, accordingly, that any evidence the Crown had to rebut that defence should be called then rather than later in reply. The trial judge rejected that submission.

33After the defence had closed its case, again over the objection of the appellants, the Crown called Thai's mother and Chau's father. They both testified that they had never known, or heard from others, of their sons getting into fights in Vietnam, in refugee camps or in Canada. These were the last witnesses heard by the jury.

34The trial judge referred to this evidence at several points in his charge to the jury. At one point he stated as follows:

It would be a drastic coincidence, beyond conjectural imagination, to believe that someone in a white, darkly tinted car, which no person beside Lam saw, delivered the twin .45 calibre firearms to Thai Nguyen, a person of previous peaceful disposition.

35Later, after referring to the "peaceful Thai Nguyen", he stated:

. . . the fact that Chau and Thai Nguyen were both unarmed . . . is even a more important factor to be considered in determining whether the accused Lam acted under reasonable apprehension or belief that he would die or be seriously harmed by the two unarmed men of previous peaceful disposition.

36In dealing with the matter specifically, he stated as follows:

General reputation for peaceful disposition. The Crown called My Thi Doan and Tho Huu Nguyen to give evidence of the general reputation for peaceful disposition in the Vietnamese community of the deceased Chau and Thai Nguyen. My Doan is Chau Nguyen's mother, and Thai Nguyen's aunt. Tho Nguyen is Chau Minh Nguyen's father and Thai Nguyen's uncle. Each witness testified that he or she had never seen or even heard of either Chau Nguyen or Thai Nguyen being involved in a fight. From this testimony it is open to you to infer that Chau and Thai Nguyen had a general reputation for peaceful disposition in the Vietnamese community.

(Emphasis added)

(b) Analysis

37The appellants' primary submission is that evidence of peaceful disposition is not admissible to rebut the defence of self-defence unless the accused has affirmatively attacked the character of the deceased. The appellants further submit that even if the evidence was admissible, the trial judge erred in allowing it to be called in reply. Finally, it is submitted that the evidence ought to have been excluded on the ground that it had virtually no probative value, and that its prejudicial effect was significant.

38The respondent submits that the trial judge did not err in admitting the evidence and that, even if he did, no substantial wrong or miscarriage of justice resulted from its admission.

39In general, the character of the victim of a crime is irrelevant and neither the accused nor the Crown may lead such evidence. A related principle precludes "oath-helping" evidence from a party to bolster the character of a witness absent an attack on the witness's character by the other side to impeach credibility: see R. v. Clarke (1998), 1998 14604 (ON CA), 112 O.A.C. 233, 129 C.C.C. (3d) 1 (C.A.).

40There are, however, circumstances in which the character or disposition of the victim of a crime may be relevant. It has been found, in some cases, that evidence of the disposition of the deceased may be relevant to a charge of murder where the accused relies on self-defence. A useful starting point in this area is the judgment of Martin J.A. in R. v. Scopelliti (1981), 1981 1787 (ON CA), 34 O.R. (2d) 524, 63 C.C.C. (2d) 481 (C.A.). In that case, the accused, relying on self-defence, introduced evidence of his own peaceful disposition and of the violent disposition of the two deceased. Martin J.A. held that the accused had opened the door and that the Crown was entitled to lead evidence that the deceased were of peaceful disposition. In the course of his reasons, Martin J.A. observed, at p. 536 O.R., p. 493 C.C.C., that:

. . . the admission of such evidence accords in principle with the view expressed by this Court that the disposition of a person to do a certain act is relevant to indicate the probability of his having done or not having done the act. The law prohibits the prosecution from introducing evidence for the purpose of showing that the accused is a person who by reason of his criminal character (disposition) is likely to have committed the crime charged, on policy grounds, not because of lack of relevance. There is, however, no rule of policy which excludes evidence of the disposition of a third person for violence where that disposition has probative value on some issue before the jury . . .

(Citations omitted)

However, Martin J.A. went on to caution against the potential dangers posed by disposition evidence, and added at p. 496 C.C.C. that "great care must be taken to ensure that such evidence, if admitted, is not misused".

41While not dealing with evidence of disposition in this precise context, R. v. Watson (1996), 1996 4008 (ON CA), 30 O.R. (3d) 161 at pp. 176, 108 C.C.C. (3d) 310 at pp. 327-28 (C.A.); R. v. Sims (1994), 1994 1298 (BC CA), 87 C.C.C. (3d) 402 at p. 421, 28 C.R. (4th) 231 (B.C.C.A.); and MacMillan v. R., 1977 19 (SCC), [1977] 2 S.C.R. 824 at p. 827 confirm the basic point, explained by Martin J.A., that there is no rule excluding evidence of the disposition of the deceased or a third party where such evidence is relevant, provided the trial judge concludes that the probative value of such evidence is not outweighed by its prejudicial effect.

42In R. v. Soares (1987), 1987 6841 (ON CA), 34 C.C.C. (3d) 403, 19 O.A.C. 97 (C.A.), the accused raised the defences of self-defence and accident to a charge of murder. The accused did not call evidence to suggest that the deceased had a violent disposition. There was, however, evidence that the deceased was intoxicated at the time he met his death, and the Crown called the deceased's father to testify as to the normal behaviour of the deceased when intoxicated. Morden J.A., at pp. 429-31, provided a helpful review of the authorities and arguments on the admissibility of character or propensity evidence in cases of self-defence. Morden J.A. referred to Wigmore on Evidence (Tillers Rev.), vol. 1A (1983), pp. 1369 and 1372-73, arguing in favour of a rule that would allow the prosecution to introduce evidence of the victim's good character in any case in which the issue of self-defence is raised. That text notes that while some American jurisdictions have adopted this rule, most have not. Some have adopted the intermediate position, reflected by the Federal Rules of Evidence, permitting the prosecutor to lead evidence of the victim's peaceful disposition where the accused offers evidence to show the victim was the aggressor, but only in homicide cases.

43Morden J.A. also quoted the Report of the Federal/ Provincial Task Force on Uniform Rules of Evidence (1982), favouring the approach in the U.S. Federal Rules of Evidence (at p. 91) [p. 431 C.C.C.]:

. . . should the Crown be allowed to adduce evidence of the victim's character to rebut a defence of self-defence when the accused makes no attack upon the disposition or general character of the victim for violence? In the opinion of the Task Force, the defence of self-defence by necessary implication involves an allegation that the victim was the aggressor. In homicide cases the victim will not be there to deny it, and reputation evidence as to his peaceable nature is therefore an important factor in determining what weight to give to the evidence of the accused. The Task Force therefore unanimously agrees that reputation evidence as to the character of the victim should be admissible at the instance of the Crown in homicide cases where the accused offers a defence of self-defence. The same rule should apply to assault cases not involving homicide if the victim is unavailable as a witness due to death or serious mental or physical illness that precludes him from testifying.

Morden J.A. concluded as follows [at p. 431 C.C.C.]:

On the basis of the reasoning in the foregoing passages it may be that the calling of character evidence of peaceable disposition of the deceased in a homicide case should not be confined to cases where the accused has adduced character evidence respecting the deceased but should also be allowed where the accused adduces evidence that he was acting in self-defence on the occasion in question. Assuming this to be the law, and assuming also that it is applicable to a case where the defence evidence is that the deceased was the first aggressor but the defence is not self-defence but accident, its application to the particular pieces of evidence in question in this case raises some uncertainties and difficulties to which I now turn.

44Morden J.A. concluded, however, that the Crown's evidence in Soares was not of sufficient probative value on any issue to warrant a finding of admissibility.

45Soares then leans in the direction of admissibility, but does not decide the point. The case does emphasize that, assuming such evidence is not excluded, it should only be admitted after careful consideration of whether it has sufficient probative value.

46The issue was also canvassed in R. v. Dejong (1998), 1998 5092 (BC CA), 125 C.C.C. (3d) 302, 16 C.R. (5th) 372 (B.C.C.A.). The accused, charged with murder, testified that the deceased had pointed a gun at him and that in response, he had acted in self-defence. There was evidence that the deceased was in the habit of carrying a starter pistol. The Crown led evidence in rebuttal of the deceased's peaceful disposition. The British Columbia Court of Appeal held that the evidence should not have been admitted and ordered a new trial. Writing for the court, Rowles J.A. observed that the only relevance the evidence of peaceful disposition could have was with respect to the defence of self- defence. After reviewing the authorities, including Scopelliti and Soares, supra, Rowles J.A. stated as follows at p. 323:

R. v. Soares, supra, highlights one of the difficulties with the recommendation of the Canadian Task Force. It is not every case where self-defence is raised that evidence of the deceased's "peaceable character" is going to have probative value in relation to a fact in issue. Having an inflexible rule governing the admissibility of such evidence would eliminate the discretion to exclude evidence where its probative value is outweighed by its prejudicial effect.

Rowles J.A. considered the evidence in the light of the issues raised and in the end concluded at pp. 325-26 that the evidence:

. . . should not have been admitted because whatever probative value it may have had (and I am inclined to the view that it had virtually none) was substantially outweighed by its prejudicial effect.

47The appellants rely on R. v. Wood (1951), 35 Cr. App. Rep. 61, [1951] 2 All E.R. 112n (Cir. Ct.) and R. v. Johnson (1965), 1965 971 (NS CA), 49 C.R. 176, 52 M.P.R. 21 (N.S.C.A.). These cases are said to stand for the proposition that the defence must first attack the credibility of the party in question before the Crown can adduce evidence of his or her peaceful disposition or good character. However, in Wood, the court was not dealing with self-defence in a murder trial. Thus, the proposed character evidence was properly excluded as "oath- helping" since the victim could testify. Likewise, it is unclear that self-defence was even an issue in Johnson.

48It may be said that restricting evidence of peaceful disposition to cases where the accused has attacked the character of the victim is consistent with the similar rule arising from the rule against "oath-helping" evidence. While this argument may well apply in cases other than murder, i.e., where the victim of an assault is available to testify, the argument is not compelling in a murder case as the deceased cannot testify and there is no oath to help.

49My review of the authorities has led me to conclude that no clear rule has been laid down with respect to evidence of peaceful disposition. It is, however, well established as a general proposition that there is no rule excluding evidence of the disposition of a third party, provided such evidence is relevant. Once that basic proposition is accepted, it seems to me that the question becomes one of assessing the relevance of the disposition evidence to the issues raised, and if the evidence is relevant, ensuring that its probative value outweighs its prejudicial effect.

50Whether the evidence is relevant will depend upon the issues raised by the case: "Relevance must be determined not in a vacuum, but in relation to some issue in the trial" (R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577 at p. 609, 66 C.C.C. (3d) 321 at p. 390). The test for relevancy is not high. In Clarke, supra, at pp. 241-42, Rosenberg J.A. explained:

. . . the test of relevancy in the law of evidence is not an exacting one and is not dependent upon scientific proof. In R. v. B. (L); R. v. G. (M.A.) (1997), 1997 3187 (ON CA), 102 O.A.C. 104; 116 C.C.C. (3d) 481 (C.A.) at 492 [C.C.C.], Charron J.A. quoted Paciocco & Stuesser, Essentials of Canadian Law: The Law of Evidence (1996), at p. 19. The authors explained that evidence will be deemed relevant "where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence".

51As already noted, it has been found that evidence of peaceful disposition may be relevant where the accused has attacked the character of the deceased. I can see no reason to adopt the strict exclusionary rule advocated by the appellants precluding the receipt of such evidence in all other circumstances. However, I hasten to add that, as has been repeatedly observed in the cases dealing with evidence of propensity, there are obvious inherent dangers involved in its use. In my view, this is an area where trial judges must scrutinize the evidence with particular care to ensure that its probative value outweighs its prejudicial effect. Thus, while I accept the logic of the arguments that persuaded Wigmore and the Federal/Provincial Task Force to recommend admissibility, it is my view that evidence of this kind poses dangers of misuse and that trial judges should be alive to such dangers.

52The power of the trial judge to exclude relevant evidence on the basis that its prejudicial effect outweighs its probative value is well established: see, e.g., Seaboyer, supra, at pp. 609-12 S.C.R., pp. 390-92 C.C.C.; Clarke, supra. As I have already noted, this power has been applied with some frequency to exclude evidence of propensity in situations similar to those posed by the case at bar: see Soares and Dejong, supra.

53In the circumstances of the present case, I accept that evidence tending to show that, given their dispositions, Thai and Chau were unlikely to have brought the Para-ordinance or to have been the aggressors on the day of the shooting, was relevant to the defence of self-defence. However, the trial judge appears not to have turned his attention to the potential misuse of the evidence in the case at bar. In my view, he ought to have done so. The evidence led by the Crown had virtually no probative value. A mother or a father is not well placed to give evidence of their son's reputation for violence. It is difficult to see how, in the circumstances of this case, the evidence from the parents of the victims could have assisted the jury.

54Not only did the evidence have little or no probative value, the danger that it would be misused by the jury was also considerable. Evidence from the parents of the deceased was bound to evoke sympathy. The very nature of the witnesses made the evidence highly prejudicial. In this case the prejudice is clear -- there was a danger that the evidence would arouse the jury's emotions of sympathy towards the victims and their families and hostility towards the appellants.

55The prejudicial effect was significantly amplified by the learned judge's decision to allow the two witnesses to be called in reply. In my view, if the evidence was to be admitted at all, it should have come as part of the Crown's case in chief. It was clear from the way the trial proceeded that self- defence was a live issue before the close of the Crown's case. There was no element of surprise. Nor was the Crown unable to anticipate that the evidence might be needed. In the words of the Supreme Court of Canada, this was not a "new matter or defence which the Crown has had no opportunity to deal with and which the Crown . . . could not reasonably have anticipated" but rather a matter that tended to "merely confirm or reinforce earlier evidence adduced in the Crown's case which could have been brought before the defence was made": see Krause v. R., 1986 39 (SCC), [1986] 2 S.C.R. 466 at p. 474, 29 C.C.C. (3d) 385 at p. 391. Indeed, the Crown sought to introduce the evidence as part of its case and did not do so only because the trial judge insisted that it come by way of reply. I note that the Federal/Provincial Task Force recommended that such evidence be adduced in chief by the Crown rather than by way of reply. I would add that even if it fell within the discretion of the trial judge to allow the evidence to be led in reply, in weighing prejudicial effect against probative value, the timing of presentation of the evidence was an important factor. The last testimony that the jury heard was evidence from the family members of the deceased. This raised the danger that the jury would convict the appellants out of sympathy for the deceased rather than on the basis of the evidence.

(c) Conclusion

56Accordingly, I conclude that the trial judge erred in admitting the evidence of the peaceful disposition of Chau and Thai.

II. Did the trial judge err by admitting Dao's videotaped statement for the truth of its contents?

(a) Facts

57Dao was the only Crown witness who had seen the shootings but had not been shot himself. At trial, Dao testified that although he was in the massage parlour at the time of the shooting and heard gun shots and yelling, he did not see who had the guns or who did the shooting. Indeed, he testified that he did not see the two appellants in the massage parlour at all. This evidence was inconsistent with the version he had given the police by way of a videotaped statement the day after the shooting. In that statement, he gave a version of the facts that was highly damaging to both appellants. The version given by Dao in his videotaped statement was that the appellants were the aggressors and that they had not acted in self-defence. In particular, Dao stated that Diu had been the first to show his gun, that the appellants had pulled their guns on the other men in the lounge, that Lam had demanded that Chau give him two diamond rings and that when Chau refused, Lam shot him in the head. Dao stated that Diu s hot at Chau twice after Chau fell to the ground. He also stated that he saw Diu shoot Bui and Pham.

58Due to the fact that Dao retracted significant aspects of his videotaped statement, the respondent sought a ruling that the videotaped statement be admitted into evidence for the truth of its contents on the authority of R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, 79 C.C.C. (3d) 257. The circumstances surrounding the taking of the videotaped statement, as revealed by the evidence led on the voir dire to determine its admissibility, were as follows.

59The shootings took place at the massage parlour at about 4:00 p.m. Shortly after the shootings, the police took Dao to the police station. By 7:00 p.m. Saturday, Dao gave an audiotaped statement to the police. The statement was not under oath. Dao remained in the custody of the police and at 1:40 a.m. the next morning he made a videotaped statement. The videotaped statement was not under oath. The police officers who took the statement testified on the voir dire that they had called a justice of the peace to administer an oath, but he did not appear and the officers proceeded to take the statement unsworn.

60At the beginning of the interview, the officer conducting the interview explained to Dao that he needed him to tell the truth and that if he did not tell the truth he could be charged with the offences of fabricating evidence, obstructing justice or public mischief. Neither the elements of those offences nor the sanctions were explained.

61During cross-examination in the voir dire on the admissibility of the videotape statement, Dao testified that he did not understand that he was going to be charged with a criminal offence if he lied because that was not fully explained to him. Crown counsel did not cross-examine on this point.

(b) The trial judge's ruling on admissibility

62The trial judge found that the Crown had satisfied the burden of establishing that Dao's videotaped statement met the criteria of necessity and reliability mandated by R. v. B. (K.G.), supra, and allowed the Crown's application to admit Dao's videotaped statement for the truth of its contents.

63As it was clear that Dao had retracted significant aspects of his videotaped statement, there was no issue as to necessity.

64The trial judge found that the lack of an oath was not fatal to the Crown's application. He found that the police told Dao, and Dao understood, that he must tell the truth. The police "detailed" the three criminal charges that he could face if he lied. As a result the trial judge found as a fact that Dao understood the solemnity of the situation and that he knew he had a duty to tell the truth and that he would be punished if he did not.

65The trial judge noted that there was an urgent need for the police to take Dao's statement for four reasons: Dao was Vietnamese and, according to the trial judge, the Vietnamese "are notoriously hostile to giving statements to the police"; Dao was afraid; Dao was, at the time, uncontaminated by outside sources; and there was a need to take Dao's statement before his sense of civic duty to cooperate and tell the truth waned.

66The trial judge found the statement to be reliable and circumstantially trustworthy because it was confirmed in material respects by evidence already tendered at trial and any inconsistencies with the rest of the evidence could be pointed out on cross-examination.

67The trial judge further found that despite Dao's trial evidence that he could recall very little about the shootings, he could still be effectively cross-examined. He noted that:

While the witness Dao now purports to remember little about the shootings, he does nonetheless purport to remember many details. It is available to defence counsel to cross-examine Dao on the details as to the source of the particular evidence and to point out to Dao the improbability of that evidence through various items of contradictory evidence.

(c) Analysis

68Until recently, prior inconsistent statements were only admissible for the purpose of impeaching the credibility of a witness. Unless the witness adopted the statement at trial, the prior statement was not admissible to establish the truth of its contents. The basis for the exclusionary rule was that the prior statement is hearsay. The evidentiary dangers associated with hearsay statements are the absence of oath or affirmation, the inability to assess the declarant's demeanour, and the lack of contemporaneous cross-examination. It is now firmly established that where the prior statement meets the twin tests of necessity and reliability, the dangers of hearsay evidence may be avoided and the statement may be received for the truth of its contents: B. (K.G.), supra. The reliability inquiry turns from a recognition of the dangers inherent in hearsay evidence to a search for indicia of reliability which provide a sufficient safeguard of the trustworthiness of the statement to overcom e the concerns arising out of those dangers: R. v. Tat (1997), 1997 2234 (ON CA), 35 O.R. (3d) 641 at p. 667, 117 C.C.C. (3d) 481 at p. 509 (C.A.).

69In the leading case, B. (K.G.), supra, at pp. 795-96 S.C.R., p. 294 C.C.C., Lamer C.J.C. set out a list of circumstances that a court could consider when determining whether a prior inconsistent statement is sufficiently reliable to admit it for the truth of its contents:

Therefore, the requirement of reliability will be satisfied when the circumstances in which the prior statement was made provide sufficient guarantees of its trustworthiness with respect to the two hearsay dangers a reformed rule can realistically address: if (i) the statement is made under oath or solemn affirmation following a warning as to the existence of sanctions and the significance of the oath or affirmation, (ii) the statement is videotaped in its entirety, and (iii) the opposing party, whether the Crown or the defence, has a full opportunity to cross-examine the witness respecting the statement, there will be sufficient circumstantial guarantees of reliability to allow the jury to make substantive use of the statement. Alternatively, other circumstantial guarantees of reliability may suffice to render such statements substantively admissible, provided that the judge is satisfied that the circumstances provide adequate assurances of reliability in place of those which the hearsay rule traditionally requires.

70In a later decision, Lamer C.J.C. observed that the court should take a flexible, case-by-case approach when assessing the necessity and reliability of the prior statement. The principled approach to exceptions to the hearsay rule should not mimic the rigid pigeon-holing of the rule's traditional exceptions: R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764 at p. 778, 101 C.C.C. (3d) 97 at p. 108. Instead, the court should consider all the circumstances of each case and not rely on a fixed checklist.

71B. (K.G.), supra, is one of a line of cases in which the Supreme Court of Canada has transformed the common law relating to hearsay evidence: see R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, 59 C.C.C. (3d) 92; R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, 75 C.C.C. (3d) 257. While the court applied the same principle of reliability in B. (K.G.) as in the earlier cases, it is apparent that the test for reliability is more stringent in the case of a prior inconsistent statement than for other forms of hearsay. The reason the search for reliability is particularly acute in these circumstances is that a prior inconsistent statement is proffered to contradict the truth of the declarant's sworn testimony at trial: B. (K.G.), supra, at p. 786-87 S.C.R., p. 288 C.C.C.; Tat, supra, at pp. 667-68 O.R., p. 510 C.C.C.

72The appellants submit that the trial judge erred in several ways in ruling that Dao's videotaped statement should be admitted for the truth of its contents. The respondent submits that the trial judge properly admitted the statement, and that in any event, if he did err, there was no substantial wrong or miscarriage of justice and the proviso should be applied.

(i) Did the trial judge fail to consider the absence of a warning as to the penalty for failing to tell the truth?

73The police officers who took the statement told Dao that he could be charged with fabricating evidence, obstructing justice and public mischief. However, the police did not explain to Dao the requisite elements of these offences, nor did they warn him of the possible penalties that could result if he were convicted of any of these offences.

74The appellants rely on the reasons of Lamer C.J.C. in B. (K.G.), supra, at pp. 790-91 S.C.R., pp. 290-91 C.C.C. in support of the proposition these failures undermine the reliability of the statement:

Of course, the incentives provided by the declarant's exposure to prosecution under ss. 137, 139 and 140 in relation to the first statement, and his or her fear of a perjury prosecution in relation to testimony given at trial, will only be effective if these sanctions are made known to the declarant. For this reason, the witness should be warned by the person taking the statement that the statement may be used as evidence at a subsequent trial if the witness recants (thereby engaging s. 137), and also that severe criminal sanctions will accompany the making of a false statement. This warning should refer specifically to ss. 137, 139 and 140 of the Criminal Code, and repeat the elements of and sanctions for those offences. As does the formal swearing of the witness in the trial process, this warning and the administration of the oath should serve to bring home to the witness the gravity of the situation and his duty to tell the truth.

(Emphasis added)

75The respondent submits that the failure to inform Dao about the sanctions for these offences does not mean that Dao did not understand the gravity of the situation or the duty to tell the truth. However, it must not be forgotten that Dao's uncontradicted testimony on the voir dire was that he did not understand that he could be charged with a criminal offence if he lied.

76By simply telling Dao that he could be charged with fabricating evidence, obstructing justice, and public mischief, the police officers taking the statement failed to comply with the recommended warning in B. (K.G.), supra. As stated by this court in R. v. Conway (1997), 1997 2726 (ON CA), 36 O.R. (3d) 579 at p. 587, 121 C.C.C. (3d) 397, Dao should have been warned that, if he recants, "the statement may be used as evidence at a subsequent trial and also that severe criminal sanctions will accompany the making of a false statement". Here, the police officers merely recited the possible offences and made no effort to impress upon Dao the serious consequences that would flow in the event he failed to tell the truth. The failure to follow the warning recommended by the Supreme Court of Canada in B. (K.G.) must be considered together with the absence of an oath in determining whether the solemnity of the occasion was brought home to Dao before he made his statement.

(ii) Did the trial judge err by discounting the significance of the oath in general and in particular to persons of Vietnamese heritage?

77The trial judge admitted the videotaped statement despite the fact that it was not made under oath. It is clear that the trial judge discounted the significance of the oath with respect to Dao. In his ruling, he stated that the Vietnamese "are notoriously hostile to giving statements to the police". Similar comments were made by the trial judge during the course of argument regarding assumed attitudes of Vietnamese to the oath. At one point, the trial judge stated, "I'm sure in Vietnam there's no oath, so it's foreign to them".

78To the extent that these comments are indicative of the adoption of a racial stereotype as to the attitudes of persons of Vietnamese origin to the police or to telling the truth, they are plainly unacceptable.

79An oath or affirmation is not an absolute requirement for a finding of reliability. There will be situations where an appropriate substitute for the oath may be established and, notwithstanding the absence of the oath, the statement may be found to be reliable. However, as Lamer C.J.C. stated in B. (K.G.), supra, at p. 792 S.C.R., p. 291 C.C.C., "these occasions may not be frequent". In the present case, the absence of an oath must be taken together with the failure of the police to explain in an adequate fashion the potential legal consequences of failing to tell the truth.

(iii) Did the trial judge err by finding that there existed a meaningful opportunity to cross-examine Dao?

80The most significant danger associated with the admission of hearsay evidence is the absence of contemporary cross-examination: B. (K.G.), supra, at p. 794 S.C.R., p. 293 C.C.C.; Tat, supra, at p. 669 O.R., p. 511 C.C.C.; Conway, supra, at p. 589. In the case of a prior inconsistent statement, the problem can frequently be remedied by cross- examination of the witness at trial. However, where the recanting witness cannot recall making the prior statement or has no present recollection of the facts related in the prior statement, cross-examination at trial will only test the witness's credibility, not the reliability of the statement itself. Although Dao testified at trial that some parts of his videotaped statement were true, and that parts were lies, he consistently failed to recall key elements of his videotaped statement that were damaging to the appellants. During the course of his cross-examination on the contents of his videotaped state ment, Dao claimed that he could not remember over 70 times. The appellants submit that Dao's stated lapse of memory effectively deprived the appellants of any opportunity to cross-examine him on the version of the shootings he gave in his videotaped statement.

81Lamer C.J.C. dealt with this issue in U. (F.J.), supra, at p. 794 S.C.R., p. 119 C.C.C.:

The first factor contributing to reliability is the cross- examination of the witness. If the witness provides an explanation for changing his or her story, the trier of fact will be able to assess both versions of the story, as well as the explanation. However, where a witness does not recall making an earlier statement, or refuses to answer questions, the trial judge should take into account that this may impede the jury's ability to assess the ultimate reliability of the statement.

82In view of Dao's professed inability at trial to recall any of the significant details of the shootings that he had related in his videotaped statement, it is clear that the trial judge erred in his assessment of the effectiveness of cross- examination of Dao as an indicator of the reliability of the prior inconsistent statement. Conway states that where cross- examination is ineffective, the other indicia of reliability become more important. In the present case, however, there are few, if any, sufficient indicators of reliability.

(iv) Did the trial judge err by relying on confirmatory evidence from trial to establish the threshold reliability of the statement?

83The trial judge did not have the benefit of three decisions of this court holding that confirmatory evidence from other sources is irrelevant to the threshold reliability inquiry: R. v. Merz (1999), 1999 1647 (ON CA), 46 O.R. (3d) 161 at p. 175, 140 C.C.C. (3d) 259; Conway, supra, at p. 593; Tat, supra, at p. 670 O.R., pp. 512-13 C.C.C. Those decisions establish that the question of threshold reliability is to be assessed on the basis of the circumstances in which the prior statement was made that tend to diminish the danger of admitting out of court statements. As was stated by Doherty J.A. in Merz, supra, at p. 175:

The reliability inquiry, when made in the context of determining the admissibility of a hearsay statement, looks to those factors surrounding the making of the statement which tend to diminish the risks associated with the admission of out-of-court statements. Evidence from other witnesses which is consistent with the substance of an out- of-court statement is not a circumstance surrounding the making of that statement and cannot generally be seen as diminishing the risks associated with the admission of hearsay evidence.

84The respondent concedes that the trial judge erred by relying on confirmatory evidence from the trial when deciding the question of threshold reliability.

(v) Did the trial judge err by treating urgency and the good faith of the police officers who took Dao's statement as indicia of reliability?

85As noted, the trial judge considered the good faith of the police officers conducting the interview, and the urgent need to conduct the interview as indicia of the statement's reliability. With respect, these factors had no bearing on the issue of reliability. The evidentiary dangers associated with hearsay evidence are the absence of oath or affirmation, the inability by the court to assess the declarant's behaviour and the lack of contemporaneous cross-examination. It is difficult to see how the urgency, or lack thereof, felt by the police officers conducting the interview, in any way diminishes the risks associated with admitting the statement for the truth of its contents. The good faith of the officers is similarly irrelevant to the trial judge's consideration of whether the statement meets the threshold test for reliability and admissibility. While it is conceivable that an interview conducted in bad faith could affect the voluntariness of the statement, and thus its admissibility, it is difficult to see how an officer's good faith diminishes the traditional hearsay dangers associated with a prior statement.

86The requirement for an oath is not onerous. Police officers should have no difficulty finding someone to put the declarant under oath. Dao was at the police station for several hours. Recognizing "good faith" efforts as a substitute for the oath in these circumstances would turn the following observation of Lamer C.J.C. in B. (K.G.), supra, at pp. 791-92 S.C.R., p. 291 C.C.C. on its head:

Were the oath an absolute requirement for a finding of reliability, the only prior inconsistent statements which could be received would be statements made in circumstances where the person receiving the statement is authorized to administer the warning and the oath or affirmation. Thus, statements made to family members or friends would generally not comply, unless the witness then repeats the statement for appropriately authorized persons. In the case of police interviews, this would likely present no real difficulty, since each police station will usually have a Justice of the Peace present or readily available for interim release hearings. The Justice could then administer the warning before the statement is made, and the oath after the statement is made. Similarly, police officers on duty as the Officer in Charge could be made commissioners for the taking of oaths in the province, and administer the warning and oath in the justice's absence.

(vi) Did the trial judge err in finding that the fact that the statement was made immediately following the events rendered it more reliable?

87The trial judge concluded that the fact that the statement was taken within 24 hours of the shooting, and before Dao had "spoken to any outside contaminating sources", was an indicator of reliability.

88The respondent submits that the fact that the statement was made relatively soon after the event is an important circumstance in assessing the reliability of the statement. In support of this position, the respondent cites Tat, supra, at p. 668 O.R., p. 510 C.C.C., where Doherty J.A. stated:

What circumstances surrounding the taking of the January 5 statement compensate for three inherent [hearsay] dangers outlined above? I can find only two. The statement was made relatively soon after the event described in the statement and [Q.] had no personal stake in making the identifications.

89However, Doherty J.A. did not find that this factor "compensated for the inherent dangers" of admitting the hearsay statement. In fact, Doherty J.A. found that the statement should not have been admitted for the truth of its contents.

90As Labrosse J.A. noted in Conway, supra, at p. 591, except in the case of small children, the timing of the statement is a neutral factor in the assessment of threshold reliability:

Finally, the trial judge relied on the timing of the statement. As noted in KGB, a statement is neither more nor less likely to be true based solely on a consideration of when it was made (p. 770 S.C.R., p. 276 C.C.C.). (This is not the same situation as referred to by McLachlin J. in R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, 59 C.C.C. [(3d)] 92, where because of the special consideration that comes into play in the case of a child of tender years, the timing between the alleged assault and the spontaneous declaration may be relevant to the issue of reliability.)

91Moreover, as pointed out by the appellants, the videotaped statement was not the first statement Dao gave to the police and it was made over eight hours after he was first taken to the police station. The fact that Dao's statement was given before discussing the events with anyone may make it more credible, but in the circumstances of this case, the timing of this statement cannot by itself provide a sufficient indicator of reliability to justify the admission of the videotape for the truth of its contents.

(d) Conclusion

92It is clear from B. (K.G.) and U. (F.J.) that a flexible, case-specific approach is to be taken with respect to the determination of the reliability factor. However, viewed as a whole, it is my view that given the accumulation of errors, the ruling of admissibility cannot be sustained. The mere recitation of the names of the three offences that Dao could be charged with if he lied on the statement was insufficient to diminish the traditional hearsay dangers associated with out of court statements. The trial judge erred in discounting the absence of an oath as an indicator of reliability. In view of Dao's professed failure to recall the events of the shooting at trial, there was no meaningful opportunity to cross-examine him on the truth of his out of court statement. This failing is particularly serious given the absence of other indicia of reliability. The trial judge based his ruling on a number of factors that have no bearing on the question of threshold reliability.

He erred by relying on the fact that other evidence in the trial confirmed parts of the statement. Neither the urgency of the need to take Dao's statement, nor the good faith of the police officers involved are relevant to the decision on the statement's reliability.

93I conclude, therefore, that the trial judge erred in admitting Dao's videotaped statement for the truth of its contents.

III. Did the trial judge err by allowing the videotape and transcript of Dao's statement to go to the jury room?

94In view of my conclusion that Dao's videotaped statement should not have been admitted into evidence, it is unnecessary to consider this ground of appeal as it is apparent from the conclusion I have reached on admissibility that none of this material should have been left with the jury.

IV. Did the trial judge err by refusing to admit the videotaped statement of Tien for the truth of its contents?

(a) Facts

95On October 1, 1995 in Vancouver, almost two years after the shooting took place, and after Tien had spoken with other witnesses to the shooting, Tien gave a videotaped statement to the police. The statement was made under oath, and Tien was warned of the consequences of not telling the truth, including prosecution under the Criminal Code, R.S.C. 1985, c. C-46. During the interview, Constable Poranganal asked Tien questions that Constable Thai translated into Vietnamese. Constable Thai also translated Tien's answers into English. Because Constable Thai was forced to translate quickly, the Crown had another version prepared by a translator, Ms. Wan Ngo, for use at the trial.

96The crucial issue related to Tien's description of the interaction between the appellant Lam and the deceased Thai. There appears to be no doubt that during his videotaped statement, Tien used the Vietnamese words "giang co". That is where the certainty ends. On the videotape, Constable Thai translated these words as "and there was an argument broke out". Ngo translated these words as "then there was a shoving match about something".

97At trial, Tien, testifying through a Vietnamese interpreter, denied that there was a shoving, tugging or pulling match. The description of the interaction between Thai, Chau and Lam was of particular significance to Lam's defence. Lam asserted that Thai was the one who brought the Para- ordinance gun to the massage parlour and that there had been a struggle between these men over the weapon. Tien's videotaped statement supported Lam's version, while Tien's trial evidence did not.

98When Diu's trial counsel indicated that he might bring a B. (K.G.) application to admit parts of Tien's prior statement for the truth of its contents, the trial judge indicated his concerns with the quality of the translation of the prior statement. The trial judge suggested that Diu's counsel bring in a "university professor" to provide a better translation of the contentious material. Accordingly, the Crown retained Dr. Tung Ngo Pham to review the translation.

99A voir dire was held to determine whether the videotaped statement should be admitted for the truth of its contents. In Dr. Pham's opinion, Ms. Ngo's translation was 90 per cent accurate. However, Dr. Pham believed that the phrase "giang co" was more correctly translated as "tugging match". In response to a question from the trial judge, Dr. Pham testified that, "I think it mean[s] one man is trying to grab at something, and the other man try to hold on to this." Dr. Pham rejected the suggestion of Crown counsel that it could mean an argument because the word clearly meant a physical struggle over something, not a verbal interaction. All counsel agreed that they could live with Dr. Pham's interpretation for the purposes of the voir dire. Dr. Pham was the only witness called on the voir dire.

(b) Trial judge's ruling

100The trial judge denied the application to have the videotape introduced for the truth of its contents. The trial judge concluded that the statement was not necessary because Tien could be cross-examined on the very words he used on the tape. He also found that the tape was not reliable since the statement was given two years after the incident and after Tien had spoken with Pham.

(c) Evidence led after the ruling and the trial judge's instruction to the jury

101After the trial judge dismissed the application, the defence was allowed to reopen its cross-examination of Tien. The videotape was played back and Tien was asked if he had said, "then there was a tugging match." Tien reiterated, "My meaning is different from what you are saying." However, Tien did accept the fact that he said giang co in his prior statement. He also admitted that it was possible that giang co could mean tugging match or argument.

102Dr. Pham was called to give evidence in the presence of the jury. He rejected Constable Thai's translation entirely. Dr. Pham stated that Ngo's translation was closer, but that "shoving match" should have been translated as "a pulling match involving a struggle": "You have something and you want to keep it and I try to grab it from you. You would say giang co." Dr. Pham also testified that the words were very common "like bread or rice." Dr. Pham also concluded the words were being used as a transitive verb, referring to a non-verbal confrontation of some sort. However, on cross-examination, Dr. Pham admitted that the words giang co could have different meanings depending on the context and the intent of the speaker, and that a possible meaning was that something was "unsettled".

103Midway through counsel for Diu's address to the jury, after reference had been made to Tien's evidence, the trial judge instructed the jury that Tien's out of court statement could not be used for the truth of its contents.

104In his charge, the trial judge stated that the jury was free to believe all the evidence given by a witness, part of that evidence, or none of it. He also informed the jury that where a witness adopted an out of court statement, that adoption constituted evidence for all purposes:

Finally, I again mention that where the witness at this trial adopted the prior statement, that adoption constitutes proper evidence at this trial on the issue of the guilt or innocence of the accused, as well as on the issue of the witness' credibility.

105However, this general instruction was severely limited by the trial judge with respect to the evidence of Dr. Pham. The trial judge stated that Dr. Pham's evidence only related to a possible inconsistency between Tien's videotaped statement and his trial testimony. The trial judge then instructed the jury that although at trial Tien admitted using giang co, he did not testify at trial that there was a pulling match. Thus, "his hearsay statement" could not be used to prove that there was a pulling match:

Dr. Pham was called only to assist you in determining the correct English translation of what Vu Tien said on his videotape statement.

Please keep in mind that what Tien said in his videotape statement is not admissible to prove the truth of what he said, unless he adopted the particular matter as true at this trial. He gave that statement in October 1995, well after the events.

The evidence of Dr. Pham only related to a possible finding of inconsistency on the part of Tien from his testimony at trial and from his videotape statement. That relates only to the question of Tien's credibility as a witness here at trial.

The first potential inconsistency relates to whether an argument broke out, whether it was a shoving match, or whether it was a pulling match for some unspecified thing.

Dr. Pham testified that the literal meaning of the word Tien used related to a pulling match, even though figuratively it could refer to an argument. The witness Tien admitted he used the word and meant by it an argument was taking place.

Again I remind you that since Tien did not testify at trial that there was a pulling match over a concrete object, his hearsay statement cannot be used to prove that there was a pulling match over anything, particularly not a gun.

(d) Analysis

106The principles governing the admissibility of prior inconsistent statements for the truth of their contents have already been discussed with respect to Dao's videotaped statement.

107I disagree with the trial judge's conclusion that Tien's videotaped statement did not meet the test for reliability. Tien's statement was made under oath and he was clearly warned of the consequences of lying. He was available for cross-examination at trial and the truth of what he said in his videotaped statement could be thoroughly and effectively tested. In my view, the possibility of Tien's statement being tainted because of contact with Pham went to its weight, not to its threshold reliability. Similarly, the mere fact that many months had elapsed between the event and the statement should not prevent the admissibility of the prior statement any more than it would preclude trial testimony.

108However, I agree with the trial judge's conclusion that the videotaped statement did not meet the necessity requirement, although I arrive at that conclusion for somewhat different reasons. In B. (K.G.), supra, at p. 799 S.C.R., p. 296 C.C.C., Lamer C.J.C. discussed the necessity test in the context of prior inconsistent statements. Lamer C.J.C. noted that in the case of prior inconsistent statements, the court could not expect the viva voce evidence to be of the same value as the prior statement. This was because the witness held the prior statement "hostage" by refusing to adopt the statement on the stand:

In the case of prior inconsistent statements, it is patent that we cannot expect to get evidence of the same value from the recanting witness or other sources: as counsel for the appellant claimed, the recanting witness holds the prior statement, and thus the relevant evidence, "hostage". The different "value" of the evidence is found in the fact that something has radically changed between the time when the statement was made and the trial and, assuming that there is a sufficient degree of reliability established under the first criterion, the trier of fact should be allowed to weigh both statements in light of the witness' explanation of the change.

109In my view, a distinction must be drawn between the Vietnamese words used by Tien on the videotape and the translations provided by Constable Thai, Ms. Ngo, and Dr. Pham. The only thing Tien could "hold hostage" was whether he did or did not use the words giang co. Tien did not deny using those words and he therefore did not retract his statement. The issue was what those words mean in English.

110As there was no retraction, the necessity test was not met and the trial judge did not err in refusing to admit Tien's videotaped statement for the truth of its contents.

111However, the conclusion that the necessity test was not met leads to a further problem, namely, the trial judge's explicit direction to the jury, both during counsel for Lam's closing address and in the trial judge's final instructions, that the jury could not find, on the basis of Tien's evidence, that there was a tugging or shoving match. In my view, there was admissible evidence from which the jury could conclude that there was a tugging or shoving match. In his evidence at trial, Tien admitted that in his prior statement, he said "giang co". There was the evidence of two interpreters that this meant tugging or shoving match. It was certainly open to the jury to conclude on the evidence that Tien had adopted his prior statement, and that, on the evidence of the interpreters, the words he used meant that there was a tugging or shoving match. In the final analysis, the trial judge's conclusion that the necessity test was not met was inconsistent with his instruction to the jury that there was no evidence of a tugging or shoving match. It follows that the trial judge erred by instructing the jury that they could not use Tien's "hearsay statement" to prove there was a tugging match. As Tien adopted the words giang co at trial, those words were no longer a hearsay statement and are admissible for all purposes. The meaning of those words was a matter for the jury to decide based on the various interpretations of those words by Tien, Constable Thai, Ms. Ngo, and Dr. Pham. Therefore, there was evidence before the jury that they could use to conclude that there was a "tugging match".

112I conclude, therefore, that the trial judge erred in instructing the jury that Tien's statement could not be used to prove that there was a pulling or shoving match between Lam and Thai.

V. Did the trial judge err in his instructions to the jury on the permissible uses of evidence of the appellants' after- the-fact conduct?

(a) Facts

113At trial, the Crown relied upon evidence of after-the- fact conduct by both appellants. With respect to Diu, the evidence led by the Crown included the following: (a) his flight from the scene; (b) his concealment of the weapons; (c) the fact that he did not readily surrender himself to the police; and (d) his initial statements to the police that he had not been the shooter. With respect to Lam, the evidence led by the Crown included the following: (a) the flight from the massage parlour; (b) sending two different people to retrieve his jeep; (c) ridding himself of the clothes he wore during the shooting; (d) putting the two guns into a bag for disposal; and (e) hiding from the police for several weeks until his arrest.

(b) The trial judge's charge

114The trial judge's initial charge to the jury on the issue of after-the-fact conduct was relatively brief, and is set out below in full:

The doctrine of consciousness of guilt is inappropriately titled and it should instead be entitled consciousness or awareness of fault. In this case, the Crown relies on various items of evidence in respect of both accused to establish consciousness of guilt. I start by cautioning you that no one item or even the items taken collectively, itself or themselves, establish guilt. The item only constitutes an item of evidence which, when weighed together with all the other evidence, may establish guilt. Consciousness of guilt may occur when an accused acts in a manner which is consistent with conduct expected of a guilty person and inconsistent with conduct expected of an innocent person. In other words, the accused acts in a manner that indicates he was aware he had acted unlawfully, as opposed to being aware that he had acted in self-defence or in defence of others or under provocation.

Furthermore, you may act on the particular item of evidence of after fact circumstantial evidence only if you reject as untrue or invalid the accused's explanation for his conduct. As well, if you act on the particular item, it may tend to prove only that the accused acted unlawfully and did not have a valid defence. It does not prove that the accused had any particular state of mind at the time of the offence.

The Crown relies on the following items of evidence against the accused Lam as being capable of constituting consciousness of guilt. First, Lam's flight from the massage parlour. Second, Lam sending both Emily Ngo and Andy Nguyen at separate times to retrieve his jeep. Third, Lam ridding himself of the clothes he wore during the shootings. Fourth, Lam putting the twin .45 calibre guns into an opaque plastic bag for disposal, and fifth, Lam hiding from the police until his arrest on April 5th, 1994.

The accused Lam offered various explanations for his conduct, most based on stupidity, ignorance and fright. Most of all, he did not want to lose his liberty.

The Crown relies on the following items of evidence against the accused Diu as being capable of constituting consciousness of guilt. First, Diu's flight from the massage parlour. Second, Diu's hiding the gun in the ceiling and the stolen keys in the couch. Third, Diu's not surrendering to the police at the front door when aware that the police were there to arrest him. Fourth, Diu's false statement that he didn't shoot, and fifth, Diu's further false statement that the other person was the shooter, the sole shooter.

The accused Diu offered various explanations for his conduct, some based on language problems and some based on stupidity. Furthermore, he denied putting the keys in the couch. Again, I remind you that these items do not prove guilt and are only capable of strengthening the Crown's case. Obviously you may not act on any particular item unless you reject as untrue or invalid the accused's explanation for that particular conduct.

Finally, I should add that none of the items indicate planning or intent to kill. At most the items may suggest that the particular accused acted unlawfully at the massage parlour in shooting the four Vietnamese and had no valid defence for his unlawful conduct.

115In his submissions regarding the charge, counsel for Diu asked the trial judge to instruct the jury that there was an alternate explanation for the fact that Diu fled the massage parlour, namely, that Diu took the first viable opportunity to retreat. The trial judge accepted this submission, and also agreed to re-charge the jury to the effect that Diu was in possession of illegal narcotics and an unregistered handgun when he left the massage parlour. Counsel for Lam sought a "no probative value" charge with respect to Lam's after-the-fact conduct on the grounds that Lam had raised the defence of self- defence. The trial judge rejected that submission and refused to re-charge on that issue.

116In the portion of his recharge dealing with the issue of after-the-fact conduct, the trial judge instructed the jury as follows:

In respect of the accused Diu's explanation for having left the massage parlour, you will recall that he had the unlawful possession of heroin and crack cocaine and the unlawful possession of the unregistered .45 calibre Colt, as well as what he had stolen from the lockers. Obviously those offences do not relate in any way to the accused Diu having engaged in any unlawful acts during the shootings.

117After the re-charge, the trial judge decided to clarify his instruction on "consciousness of guilt". The trial judge essentially repeated his earlier instruction and added:

Furthermore you may act on the particular item of after-the- fact circumstantial evidence only if you reject as untrue or invalid the accused's explanation for his conduct.

Finally, the particular item of evidence must relate to the charges, including lesser and included offences, before the court. In the end, the particular item of evidence must be capable of tending to prove that the accused acted after the fact in a manner consistent with conduct expected of a guilty person knowing that he had acted unlawfully and without a valid defence to the charges before the court.

118The appellant Diu submits that the trial judge erred in failing to instruct the jury that as self-defence and provocation had been raised, the evidence of after-the-fact conduct had limited probative value in relation to the shooting of Bui and Pham. The appellant Diu also takes the position that the trial judge should have given a "no probative value" instruction in relation to the death of Thai and, more generally, that the trial judge erred in failing to explain to the jury that there could be other explanations for the after- the-fact conduct, including fear or panic and the commission of other offences. The appellant Lam adopts these submissions and argues that as each appellant admitted to shooting one or more persons, the evidence of after-the-fact conduct had no probative value.

(c) Analysis

119It has long been recognized that in certain circumstances, the conduct of an accused after a crime has been committed may provide circumstantial evidence of the accused's culpability with respect to that crime: R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72 at p. 84, 125 C.C.C. (3d) 385 at p. 397. See also R. v. Peavoy (1997), 1997 3028 (ON CA), 34 O.R. (3d) 620, 117 C.C.C. (3d) 226 at p. 238 (C.A.): "Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person."

120However, it has also been repeatedly recognized that evidence of after-the-fact conduct is often highly ambiguous. As Martin J.A. stated in R. v. Minhas (1986), 1986 144 (ON CA), 29 C.C.C. (3d) 193 at p. 222, 16 O.A.C. 42 (C.A.), "there is ample room for an erroneous inference as to a consciousness of guilt from the accused's conduct." There is often a serious risk that the jury may fail to consider alternative explanations for the after- the-fact conduct and erroneously infer guilt: White, supra, at p. 86 S.C.R., p. 398 C.C.C.; R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129 at p. 143, 87 C.C.C. (3d) 289 at p. 299; R. v. Jenkins (1996), 1996 2065 (ON CA), 29 O.R. (3d) 30 at p. 60, 107 C.C.C. (3d) 440 at p. 471 (C.A.). It is, therefore, important for the trial judge to ensure, by careful jury instructions, that the jury does not misuse the evidence. Accordingly, there is a well- developed body of jurisprudence to the effect "that juries be carefully instructed that there may be alternative explanations for the accused's conduct and that, in such cases, the accused's conduct is not capable of supporting an inference of consciousness of guilt": see Jenkins, supra, at p. 60 O.R., p. 471 C.C.C.

121In general, the trial judge should instruct the jury that the evidence of the accused's after-the-fact conduct has only an indirect bearing upon the issue of guilt, and that the jury should exercise caution in inferring guilt because the conduct might be explained in an alternative manner: Arcangioli, supra, at pp. 143-44 S.C.R., pp. 299-300 C.C.C., citing Gudmondson v. R. (1933), 1933 415 (SCC), 60 C.C.C. 332 (S.C.C.). The trial judge should also instruct the jury that the evidence of the accused's after-the-fact conduct can only be used to support an inference of guilt where they have rejected any innocent explanation for the conduct: Peavoy, supra, at p. 629 O.R., p. 238 C.C.C.

122In some cases, the trial judge should provide specific instructions on the use of evidence of after-the-fact conduct. The specific instruction will depend on the facts of each case and the position advanced by the accused during the trial. There is no clear rule to determine the circumstances in which evidence of after-the-fact conduct may be used to support an inference of guilt. It is, in the end, a question of relating the evidence of after-the-fact conduct to the issues raised and determining the extent to which, if at all, it is logically probative of the issues.

123It has been found in several cases that evidence of after-the-fact conduct may be relevant to the issue of guilt in cases where self-defence is raised. In White, supra, the accused admitted the act but asserted he had acted in self- defence. Major J., writing for a unanimous court, stated at p. 91 S.C.R., p. 403 C.C.C., that post offence conduct could be used to support an inference of guilt where the accused has "admitted to committing a physical act but asserts that the act was justified in some way; in those circumstances . . . the jury could infer that the accused was conscious that he or she had committed a culpable act and had not, for example, acted in self-defence." In Peavoy, supra, Weiler J.A. faced a similar situation where the accused had admitted killing the victim, but relied on self-defence. Weiler J.A. concluded at p. 631 O.R., p. 241 C.C.C. that "the after-the-fact conduct was some evidence from which, along with other evidence, the jur y could infer that the appellant was aware he had committed a culpable act and had not acted in self-defence." However, as already stated, there are no categoric rules in this area, and in other cases where self-defence is raised, it may well be that that after-the-fact conduct has no probative value with respect to the issue of culpability: see Jenkins, supra.

124After-the-fact conduct is problematic where more than one offence has been committed or where the issue is the level of culpability. The leading case is Arcangioli, supra, where the accused admitted committing a common assault but denied that he had committed aggravated assault. The Supreme Court of Canada held that in such a case, evidence of after-the-fact conduct had no probative value. The court held (at p. 145 S.C.R., pp. 300-01 C.C.C.) that where the accused has admitted committing the actus reus of a criminal act but denied a specific level of culpability for that act, or has denied committing some related offence arising from the same operative set of facts, it will be appropriate for the trial judge to instruct the jury that the evidence has no probative value with respect to any particular offence.

125The sufficiency of the trial judge's charge to the jury with respect to the appellants' after-the-fact conduct must, then, be assessed on the basis of the issues raised by the evidence and the defences advanced by the appellants.

126With respect to the charges of first degree murder, evidence of after-the-fact conduct was equally consistent with the accused committing manslaughter or second degree murder as it is with first degree murder. Accordingly, the evidence of after-the-fact conduct could not be used as proof of intent to commit murder. The trial judge correctly instructed the jury that the after-the-fact conduct did not support a finding of planning or intent to kill.

127Lam and Diu both admitted to having committed the actus reus of various offences. Specifically, Lam admitted to shooting Thai once and Chau twice, and to shooting in the direction of Pham; Diu admitted to shooting both Bui and Pham. However, neither Lam nor Diu admitted culpability with respect to their admitted acts. Both relied upon the defence of self- defence. In my view, on the authority of White and Peavoy, supra, it was open to the trial judge to conclude on these facts that the evidence of after-the-fact conduct could be left with the jury on the basis that it was relevant to the issue of whether Lam and Diu had truly acted in self-defence, or whether Lam and Diu had committed culpable homicides. The jury was entitled to consider whether Lam's after-the-fact conduct was consistent with the conduct of a person who believed he had acted in self-defence in shooting two people and firing shots at a third. Similarly, the jury was entitled to consider whether Diu's after-the-fact conduct was consistent with the conduct of a person who believed he had acted in self-defence in shooting two people. Accordingly, the trial judge did not err in instructing the jury that after-the-fact conduct might indicate the accused's awareness that he had acted "unlawfully and without valid defence".

128However, as indicated by the Supreme Court of Canada in White, supra, at p. 93 S.C.R., p. 404 C.C.C., even where after- the-fact conduct is relevant, the trial judge should still provide the jury with an instruction regarding the proper use of that evidence. In my view, the more difficult issue in the circumstances of the present case is the extent to which a specific instruction was required in light of the multiple charges faced by the appellants. The appellants were charged with five separate offences: two murders and three attempted murders. The case was far from an "all-or-nothing" situation in which the jury was bound to conclude that either or both of the appellants were simply guilty or not guilty of all the offences charged. There were live issues as to which appellant had shot which victim and whether, in relation to each victim, the act of shooting was justified. The evidence of the appellants' after-the-fact conduct provided no basis for distinguishing between the five offences.

129While I do not agree that the circumstances called for a "no probative value" instruction in relation to after-the- fact conduct, it is still necessary to consider whether the trial judge erred in failing to give a limiting instruction. In my view, given the complexity of the issues with which the jury was presented, something by way of a limiting instruction was required. Each accused was charged with five counts, and each accused admitted to having committed the physical act of some, but not all, of the counts. While after-the-fact conduct might provide a basis for inferring guilt for one of the offences charged, it does not follow that it provided a logical basis for inferring guilt for all of the offences charged.

130Although the facts of the present case are not identical to those on Arcangioli, supra, at p. 145 S.C.R., pp. 300-01 C.C.C., the applicable underlying principle is the same.

. . . evidence [of after-the-fact-conduct] can serve the function of indicating consciousness of guilt only if it relates to a particular offence. Consequently, where an accused's conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one of more of those offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence.

(Emphasis added)

The same point was made by this court in R. v. Wiltse (1994), 1994 822 (ON CA), 19 O.R. (3d) 379 at pp. 384-85 where Doherty J.A. stated:

[The appellant's] conduct after the homicide might also have been explained by reference to his participation in unlawful conduct other than the killing of the deceased. His acts may have rendered [him] an accessory after the fact to the murder, even if he was not a party to the murder.

In my view, the jury should have been instructed as to the limited use of evidence of consciousness of guilt in determining [the appellant's] culpability in the homicide. The jury also should have been told that the evidence had no probative value unless the jury was satisfied that the consciousness of guilt reflected by those acts was with respect to the killing of the deceased and not some other conduct of [the appellant].

(Citations omitted)

131Of particular concern is the relevance of after-the- fact conduct to Diu's culpability for the murder of Thai. Diu denied shooting Thai. If the charge of murdering Thai stood in isolation, Diu's after-the-fact conduct could be used to determine Diu's culpability for the murder of Thai. However, Diu admitted to shooting Bui and Pham. In light of that admission, Diu's after-the-fact conduct might well be explained by his culpability for the attempted murder of either Bui or Pham. The jury should have been given a limiting instruction that caution was required in relation to what could be inferred from the after-the-fact conduct. In my view, the trial judge should have instructed the jury that Diu's after-the-fact conduct was of limited probative value in determining his culpability for the murder of Thai, particularly if the jury concluded (as it did) that Diu had not shot Bui and Pham in self-defence. A similar limiting instruction should have been given with respect to the use of Lam's after-the-fact conduct.

132I conclude, therefore, that the trial judge erred in the manner he dealt with evidence of after-the-fact conduct in his instruction to the jury.

VI. Did the trial judge err in refusing to order severance in view of the evidence led by Lam as to Diu's bad character?

Did the trial judge err in his charge to the jury on the permissible use of evidence of Diu's bad character?

Did the trial judge err by giving a limiting instruction to the jury respecting the discreditable conduct of Diu?

133As these three issues are closely related, they can conveniently be dealt with together.

(a) Facts

134In cross-examining Diu, Lam's counsel led several pieces of evidence of bad character and disposition to commit weapons offences that would not have been admissible if led by the Crown: see R. v. Laurier (1983), 1 O.A.C. 128 (C.A.) and R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, 41 C.C.C. (3d) 385. This evidence included:

-- the facts underlying a 1988 conviction for use of an unregistered restricted weapon, which included details of the use of a .22 pistol;

-- at the time of his arrest a .38 calibre bullet was found at Diu's home;

-- a grenade was found stuck to the ceiling of Diu's house;

-- at the time he brought the gun to the massage parlour, Diu was subject to a firearms prohibition;

-- the facts underlying a 1991 conviction for aggravated assault, which included the fact that he assaulted someone with a tire iron;

-- the facts underlying a 1991 guilty plea for assault causing bodily harm, which included the fact that he had attacked someone with a metal bar;

-- Diu's brother had fired shots from a .45 semi-automatic weapon around the time he might have been living with Diu.

(b) Trial judge's mid-trial instruction and charge to the jury

135After the cross-examination by Lam's counsel, the trial judge gave the jury a mid-trial instruction on the use of bad character evidence:

You have heard evidence of criminal misconduct on the part of both accused. I want to instruct you of this fundamental principle. Evidence of prior criminal misconduct by an accused is generally admissible only as to the credibility or believability of the witness, the accused as a witness.

Prior criminal misconduct may indicate a lack of moral trustworthiness or responsibility on the part of the accused as a witness to tell the truth. I'll repeat that . . . .

However, this case must not be decided on the basis of what the accused have done in the past. Thus, prior criminal misconduct must not be used, not, I stress, to be used to infer that either accused has a general propensity or tendency to commit crime in general.

(Emphasis added)

136In his final instructions to the jury, the trial judge had the following to say on the use of bad character evidence:

Turning to the criminal records of the accused. Both have a criminal record. In addition, the accused themselves led evidence that they were involved in other criminal conduct relating to possession of drugs and relating to either or both having possession of that .45 Colt firearm, and also theft from lockers.

The fact that an accused has been convicted or admitted to a crime may be considered by you for only one purpose, that is to judge the credibility or truthfulness of the accused as a witness. The fact of such a conviction does not necessarily destroy or impair his or her credibility, but it may indicate, as I've said before, a lack of moral responsibility to tell the truth. It is simply one of the circumstances that you may take into consideration in weighing his trustworthiness as a witness.

Obviously you should consider the nature and date of the conviction. Convictions relating to dishonesty tend to bear more directly upon the accused's credibility than do crimes not relating to dishonesty. Similarly, older convictions may have less bearing upon the accused's testimony than more recent convictions.

Finally I must warn you, you may not use the prior convictions or admitted crimes as evidence that the accused committed the crime with which he is now charged. You must not conclude that because an accused has been convicted or has committed or has admitted committing other crimes that he has a propensity to commit further crimes, and specifically not the crimes with which he is charged at this time. The law does not permit you to draw that inference. You can only consider the prior convictions or admitted offences, as I have said, in deciding the credibility of the accused and you will decide what weight, if any, should be given to the prior criminal record and the admitted offences of the accused on the charges before the court.

(Emphasis added)

(c) Analysis

137So-called "cut-throat" defences, where co-accused attack each other, create a difficult situation. The court has to balance the fair trial right of the accused who has been attacked with the right of the co-accused to make a full answer and defence. It has been held that even where the Crown could not adduce evidence of an accused's bad character, a co-accused may do so where it would be relevant to the defence of that co- accused: R. v. Kendall (1987), 1987 180 (ON CA), 35 C.C.C. (3d) 105, 20 O.A.C. 134 (C.A.). The issue has been dealt with in three recent judgments of this court: R. v. Suzack, 2000 5630 (ON CA), [2000] O.J. No. 100, 141 C.C.C. (3d) 449 (C.A.); R. v. Valentini (1999), 1999 1885 (ON CA), 43 O.R. (3d) 178, 132 C.C.C. (3d) 262 (C.A.) and R. v. Marks (2000), 2000 4096 (ON CA), 48 O.R. (3d) 161, [2000] O.J. No. 1376 (C.A.), all handed down after the trial in the case at bar. Prejudice to the co-accused against whom the evidence is led is to be dealt with by a careful instruction to the jury on the use that may b e made of the evidence by the accused who led it and by the Crown. The trial judge gave the usual criminal record instruction. The appellants submit that this was inadequate.

(i) Severance

138Suzack, supra, holds that severance is not the appropriate way to deal with this issue. While counsel for Diu did not abandon the point, he conceded that for the purposes of severance, he could not distinguish Suzack. Accordingly, I would dismiss that ground of appeal.

(ii) Appropriate jury instruction

139Suzack and Valentini, supra, establish that where bad character evidence is adduced by one accused to show propensity (i.e., that the co-accused is the type of person more likely to have committed the crime), the trial judge must include a special instruction in the charge to the jury. This instruction should contain both a positive and negative aspect, which are equally important, telling the jury the use the jury may make of the evidence of propensity and the use the jury may not make of such evidence. The positive aspect is that evidence of bad character can be used by the accused leading the evidence (Lam) to raise a reasonable doubt as to that accused's guilt on the basis that the bad character of the other accused (Diu) suggests a propensity of that accused to commit the offence. The negative aspect is that bad character evidence cannot be used by the jury when considering whether the Crown has proved its case against the other accused (Diu). In other wo rds, it was incumbent on the trial judge to instruct the jury that it might consider evidence of Diu's disposition in deciding whether it had a reasonable doubt that Lam committed the crime, but that the jury must not use evidence of Diu's disposition to find Diu guilty. Counsel asked the trial judge to instruct the jury in these terms, but the trial judge, who did not have the benefit of the judgments in Suzack and Valentini, refused to do so. In my view, in the light of Suzack and Valentini, the trial judge erred.

140The first error is the failure to give the positive portion of the instruction. Nowhere in the charge is there any mention of the use that Lam can make of the evidence. This omission clearly prejudiced Lam who was entitled to have the jury consider the evidence of Diu's propensity when deciding whether the Crown had proved its case against Lam beyond a reasonable doubt. The respondent concedes this error, but submits that no substantial wrong or miscarriage of justice resulted and that the proviso ought to be applied, a point which I will consider in due course.

141It is also submitted by the respondent that no prejudice resulted to Diu. The respondent contends that the instruction was unduly favourable to Diu as the jury was told that it could not take the evidence of propensity into account at all in determining guilt. I do not accept this submission. The failure to provide the jury with guidance as to the appropriate use of the evidence left the jury in a vacuum. The evidence had been admitted and the jury should have been clearly told what use it could make of it. The positive part of the instruction was relevant to the situation of Diu as it would help to ensure that the jury would not use the evidence in an impermissible way: see Valentini, supra.

142The second error is that the trial judge failed to give the correct negative instruction. He stated that the jury could use the bad character evidence "in deciding the credibility of the accused". The respondent contends that once the bad character evidence was admitted, the jury was entitled to use it in assessing credibility. In my view, this proposition cannot be accepted. The trial judge should have made it clear that this bad character evidence could not have been used to further the Crown's case at all, even on the issue of credibility. This error squarely affected the fair trial right of Diu.

143The point is implicit from Suzack, supra. Doherty J.A. stated, at para. 97, that the trial judge is required to instruct the jury in such a way as to permit the use of the propensity evidence by the defence while at the same time preventing the misuse of the evidence as part of the case for the Crown. Doherty J.A. adopted the model charge of the Ontario Specimen Jury Instruction Project which states the following (at para. 127):

It is up to you to determine whether the disposition evidence, alone, or together with other evidence, raises a reasonable doubt that (NOA1) committed the offence charged. However you must not use the disposition evidence in any way when you consider whether Crown counsel has proven the case against (NOA2). No one can be convicted of a crime just for being the sort of person who might have committed it.

(Emphasis added)

144In my view, limiting the use of bad character evidence in the circumstances presented here is consistent with basic principles of evidence law. As the appellant Diu submits, "use follows admissibility". If Diu alone was on trial, the Crown could not adduce the underlying facts of a conviction or other evidence of bad character: see R. v. Laurier, supra. The same principle should apply where Diu faces trial with a co-accused. Since only Lam could have this evidence admitted, only Lam could use this evidence to further his case. Since the Crown could not ask to have the evidence admitted, the Crown cannot use this evidence, even though it may be admitted and used by Lam.

145Similarly on the trial of a single accused, the Crown may only adduce bad character evidence to refute a good character allegation made by an accused, see R. v. McNamara (No. 1) (1981), 1981 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont. C.A.). The same rule should apply in a trial with joint accused. Where Diu has not put his character in issue vis-à-vis the Crown, the Crown should not have the benefit of the evidence adduced by Lam. To hold otherwise, would be to afford the Crown an unfair advantage by proceeding with a joint trial.

146The trial judge should still give the classic instruction on the use of an accused's criminal record. However, this must be followed by the "positive" and "negative" instruction on the use of bad character evidence that makes it clear what can be used by the co-accused and what can be used by the Crown. Since this was not done, Diu's right to a fair trial was prejudiced as was Lam's right to make full answer and defence.

147I conclude, accordingly, that the trial judge erred in the manner in which he instructed the jury with respect to the permissible and impermissible uses of the evidence of Diu's bad character.

VII. Did the trial judge err in his charge to the jury on the issue of self-defence?

148The trial judge instructed the jury to consider the application of the self-defence provisions under s. 34(2) of the Criminal Code. This subsection provides a defence where the accused was unlawfully assaulted and caused death in repelling the assault, if the accused was under a reasonable apprehension of death or grievous bodily harm from the original assault and he believed, on reasonable grounds, that he could not otherwise preserve himself from such harm.

149Diu argues that the trial judge made two errors in this self-defence instruction. First, he should have emphasized that s. 34(2) is available even where the accused is the initial aggressor. Failing that, he should have also put the self- defence provisions of s. 35 to the jury. Second, Diu submits that the trial judge erred in failing to instruct the jury that an accused's belief in imminent danger may be mistaken but reasonable.

150Section 35 specifically provides for self-defence where the accused is the initial aggressor. It states:

35. Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if

(a) he uses the force

(i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and

(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;

(b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and

(c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.

151It has been established that s. 34(2) also applies where the accused was the initial aggressor, even where the accused does not meet the requirements of s. 35: R. v. McIntosh, 1995 124 (SCC), [1995] 1 S.C.R. 686, 95 C.C.C. (3d) 481. Diu submits that it is possible that the jury would have found that he was the initial aggressor as a result of flashing his gun in the locker room, but that in so doing, he did not intend to cause death or grievous bodily harm within the meaning of s. 35(b), that Bui's use of the .32 was in response and caused Diu to apprehend death or grievous bodily harm (s. 35(a)(i)), and that Diu shot Bui to prevent this (s. 35(a)(ii)).

152In R. v. Jenkins, supra, at pp. 40-41 O.R., p. 452 C.C.C., leave to appeal dismissed [1996] S.C.C.A. No. 583 (Q.L.), Laskin J.A. stated:

It is an error in law to expressly tell the jury that an accused who provokes an assault cannot rely on s. 34(2). Whether it is an error in law not to tell the jury that even an accused who does provoke an assault can rely on s. 34(2) depends on the rest of the instructions on self-defence. If the instructions as a whole reasonably could have misled the jury into believing that an accused who provokes an assault is deprived of the defence of self-defence under s. 34(2), then the non-direction on provocation is an error of law.

(See also R. v. Nelson (1992), 1992 2782 (ON CA), 8 O.R. (3d) 364 at pp. 374-75, 71 C.C.C. (3d) 449 at p. 461 (C.A.); R. v. Elkins (1995), 1995 3510 (ON CA), 26 O.R. (3d) 161 (C.A.).)

153In my view, there is nothing in the trial judge's explanation of self-defence that would lead the jury to believe that s. 34(2) was not available to Diu even if he was an initial aggressor. I conclude, accordingly, that there was no reversible error with respect to s. 34(2). To paraphrase the words of Doherty J.A. in Elkins, supra, at pp. 169-70, given the evidence presented in this case and the instructions of the trial judge, I do not accept that a reasonably intelligent lay person, unschooled in the remarkable subtleties and ambiguities of the law of self-defence, would conclude that the defence of s. 34(2) was not available to Diu because he showed his gun to Pham in the locker room.

154In any event, the application of s. 35 to Diu was problematic, and to put that section and all of its requirements to the jury might well have led to confusion and even prejudice to Diu. In refusing to put s. 35 to the jury, the trial judge expressed the view that Diu was better off with s. 34 alone. In the circumstances of this case, the trial judge was entitled to take the "functional approach" and restrict the charge to s. 34(2): R. v. Pintar (1996), 1996 712 (ON CA), 30 O.R. (3d) 483, 110 C.C.C. (3d) 402 (C.A.).

155For s. 35 to apply, the jury would have to consider a number of points not required for the s. 34(2) defence: that Diu did not commence the assault with intent to cause death or grievous bodily harm; that Diu did not endeavour to cause death or grievous bodily harm before the necessity of preserving his own life arose; and the issue of "retreat" under s. 35(c). There would be the added issue of applying s. 35 in view of the fact that Diu pulled his gun on Pham and the subsequent acts involved Diu and Bui. The s. 34(2) instruction left the defence open even if the jury found that Diu had pulled his gun in the locker room and without the need to consider all these additional factors. To have charged on s. 35 would only have complicated the matter with no perceivable benefit to Diu.

156In his charge, the trial judge failed to deal with the issue of mistaken belief. However, when that omission was brought to his attention he dealt with the issue in his re- charge.

157In my view, this instruction was sufficient, especially in light of the fact that Diu's position at trial was that he did not have a mistaken belief. On Diu's evidence, Bui fired at him and there was no room for mistake.

158I conclude, accordingly, that the trial judge did not err with respect to his instructions to the jury on the defence of self-defence.

VIII. Did the trial judge err by telling the jury that Lam "asked" to have the defence of provocation put to the jury?

(a) Facts

159During the trial, the appellant Lam relied upon self- defence and made no reference to provocation. Lam did not testify that he was provoked, nor did his counsel allude to provocation in his address.

160Prior to the trial judge's charge to the jury, counsel for both of the appellants made submissions in which they addressed the defence of provocation. Both counsel specifically requested that the defence of provocation be put to the jury as it was available on the evidence.

161The trial judge's charge to the jury with respect to the defences available to Diu and Lam was as follows:

In this case we have the defence of self-defence raised by Mr. Diu in relation to Mr. Bui and shooting Lai Pham; and we have the defence of self-defence raised by the accused Mr. Lam in relation to the deaths of Chau Nguyen and Thai Nguyen.

We also have the defence of defence of others, although it is expressly denied by Mr. Diu, raised in respect of his shooting Chau Nguyen. You haven't heard this as yet, but [counsel for Lam] asked me to put it and I will put it to you, this is the defence of provocation which reduces murder to manslaughter.

Those then are the three defences raised in this case. Self-defence, defence of others and provocation.

(Emphasis added)

162The trial judge later reviewed the three defences with the jury in detail.

163Counsel for the appellant Lam objected to the manner in which the trial judge charged the jury on the defence of provocation.

There's a way of putting it without suggesting it is Mr. Lam's position. It can be said as follows. The accused Lam is to be acquitted of murder if the Crown does not prove beyond a reasonable doubt the following things, and then mention the concepts of provocation without suggesting that Lam is sitting on the fence on those issues.

164The trial judge failed to address counsel's concerns in his recharge to the jury.

(b) Analysis

165A trial judge has a duty to leave every defence to the jury for which the evidence provides an air of reality. The issue of how to deal with a defence that arises on the evidence but that is not raised by the accused was dealt with in Peavoy, supra. The accused was charged with second degree murder. The accused admitted to having stabbed the deceased, and relied on the defence of self-defence. Defence counsel did not want the defence of provocation left with the jury, believing that it would undermine the principal defence of self-defence. Weiler J.A., writing for the court, addressed the issue at p. 632 O.R., p. 242 C.C.C.:

A trial judge is required to leave every defence to the jury for which there is an air of reality on the evidence. In his instructions, it would have been highly preferable for the trial judge to explain to the jury that provocation was not a position being advanced by the defence but one about which he felt he was required to charge them.

166Peavoy, supra, was considered by this court in R. v. Tombran (2000), 2000 2688 (ON CA), 47 O.R. (3d) 182, [2000] O.J. No. 273 (C.A.), at paras. 51-52, where again it was pointed out that in some circumstances, an accused is entitled to have a defence put to the jury without having the defence attributed to a request from the accused.

167It is clear that in the present case, the trial judge was required to put the defence of provocation to the jury. It is not disputed that there was an evidentiary basis to support the defence. Moreover, counsel for both accused specifically requested the trial judge to charge the jury on the defence of provocation. I repeat what was said by this court in both Peavoy and Tombran, supra: it would clearly have been preferable for the trial judge not to have stated that the appellant Lam requested that the defence of provocation be left with the jury. Where the trial judge puts a defence that has not been raised by the accused before the jury, the trial judge should ordinarily instruct the jury that the defence was not raised by the accused, but is one that he considers necessary to put to them. An instruction stating that the defence is being put at the request of the accused might well have the effect of undermining the defence advanced at trial by suggesting that the accused was advancing alternative defences. I reject the proposition put by the trial judge to counsel for Lam: "That's the danger you run. You wanted me to put it." Lam was entitled, as a matter of law to have the defence put to the jury, and it is wrong to suggest that somehow, there was a price to be paid for insisting upon that right.

168I conclude, accordingly, that the trial judge erred by telling the jury that Lam asked that the defence of provocation be considered.

IX. Did the trial judge err by informing the jury that he offered Lam the right to re-open his case?

(a) Facts

169Lam called his defence first and testified on his own behalf. Lam testified that he did not have a gun at the massage parlour and did not know that Diu had a gun with him until Diu brandished it at Pham. Counsel for Diu briefly cross-examined Lam, but did not ask Lam any questions regarding the ownership of the Colt .45 handgun.

170Diu testified that Lam owned the Colt .45 and had left the gun at Diu's house two or three days before the shooting. Diu further testified that he and Lam used heroin together on the day of the shooting and that after the shooting Lam had placed both the Para-ordinance and the Colt in a plastic bag on Diu's porch. These statements were not consistent with Lam's evidence in chief and they were not put to Lam by Diu's counsel in cross-examination.

171When counsel for Diu advanced this evidence, counsel for Lam objected on the ground that his client had not been given an opportunity to meet this attack on cross-examination. He asked for a severance. The trial judge agreed that counsel for Diu should have cross-examined Lam on these points on the basis of the rule in Browne v. Dunn (1893), 6 L.R. 67 (H.L.). However he refused severance and held that the appropriate remedy was to allow Lam to re-open his case to reply to the new matters raised by Diu. The trial judge ruled that any further cross-examination of Lam would be limited to the new matters testified to by Lam.

172At the conclusion of Diu's defence, the trial judge asked Lam's counsel in the absence of the jury if he had "anything to say about me asking you in front of the jury whether or not you want to call evidence in response to the new matters." Lam's counsel stated that he would not call further evidence, but he asked the trial judge not to raise the issue in front of the jury, relying on the Canada Evidence Act, R.S.C. 1985, c. C-5, s. 4(6):

4(6) The failure of the person charged, or of the wife or husband of that person, to testify shall not be made the subject of comment by the judge or by counsel for the prosecution.

173The trial judge rejected that submission, recalled the jury and posed the following question:

THE COURT: Mr. Silverstein, I want to ask you whether you wish to call further evidence on behalf of the accused Chinh Lam.

In particular, Mr. Marko unfortunately failed to cross- examine the accused Lam on various matters later testified to by the accused A. Bau Diu. Among the matters not cross- examined upon include the testimonial allegations by Diu that the .45 calibre Colt belonged to Lam; that he and Lam consumed heroin together; and that Lam put the two .45 calibre guns into an opaque plastic bag and placed that bag on Diu's porch the night following the shootings at the massage parlour.

Mr. Silverstein, do you wish to call evidence now in response to the allegations made by the accused Diu against your client, Chinh Lam? Obviously you don't have to.

MR. SILVERSTEIN: I have no further evidence my Lord.

174During the submissions regarding whether he should offer Lam the opportunity to re-open in the presence of the jury, the trial judge asked Diu's counsel whether he would make any comment regarding Lam's decision not to take up the offer. Diu's counsel advised the trial judge that he would make no comment on the issue. Nevertheless, prior to closing arguments, Diu's counsel asked for and received permission to comment on Lam's decision to not call additional evidence. During his closing arguments, he stated that Lam's counsel had declined the invitation to call further evidence.

175In his charge to the jury, the trial judge commented on the failure of Diu's counsel to cross-examine Lam on the contentious points. He then reminded the jury that Lam's counsel had been given the opportunity to call further evidence. He continues as follows:

The question remains as to what effect the failure of [counsel for Diu] to have cross-examined on the matters has on the testimony of Lam and Diu. I would think that it should have little effect on their testimony. To start with, you need not accept Diu's evidence about the allegations if you do not find them to be credible, even though there is no denial of them. In fact, it appears that Lam did deny in cross-examination by the Crown that the Colt was his and did deny that he ever smoked or used heroin.

As for Lam, he was not required to testify a second time to deny the allegations, some of which, as I have just stated, he denied during cross-examination by Crown counsel. It seems to me that the fault was that of [counsel], and his sins must not be visited on his client, the accused A Bau Diu.

(b) Analysis

176It was within the discretion of the trial judge to permit counsel for Diu to elicit Diu's testimony despite the violation of the rule in Browne v. Dunn, supra. The decision to remedy the situation by permitting Lam to re-open his case and call further evidence was also within the discretion of the trial judge. In my view, this ruling represented a reasonable attempt to balance the rights of Lam and Diu in the circumstances.

177The more difficult issue is whether the trial judge erred by calling the jury's attention to the fact that Lam had the right to re-open and chose not to exercise it. Lam relies on the Supreme Court of Canada decision in R. v. G. (S.G.), 1997 311 (SCC), [1997] 2 S.C.R. 716 at pp. 738-39, 116 C.C.C. (3d) 193 at pp. 211-12 as authority for the proposition that requiring an accused to re-open his or her case causes prejudice. Lam also submits that the trial judge violated s. 4(6) of the Canada Evidence Act.

178I agree with the submission of the respondent that the circumstances of G. (S.G.), supra, are distinguishable. There, the Crown was permitted to call an additional witness after both the Crown and the defence had closed. The trial judge permitted the Crown to re-open and permitted the defence to re- open in reply. The Supreme Court held that, in the circumstances presented, the Crown should not have been permitted to re-open as the effect was to give the Crown the unfair advantage of splitting its case. It was in that context that the court held that an accused will almost invariably be prejudiced, when re-opening his or her case, will require the accused to take the stand for a second time and undergo a second round of cross-examination. In the case at bar, it was the co-accused Diu, not the Crown, who caused the prejudice to Lam and the issue of the Crown splitting its case does not arise.

179The manner in which the trial judge dealt with the issue did not violate the provisions of s. 4(6) of the Canada Evidence Act. While that provision constitutes a "blanket prohibition against comments" on the failure of the accused to testify (R. v. Miller (1998), 1998 5115 (ON CA), 131 C.C.C. (3d) 141 at p. 146, 21 C.R. (5th) 128 (Ont. C.A.)), the Supreme Court of Canada has held that the provision is to be interpreted purposively not literally: R. v. Potvin, 1989 130 (SCC), [1989] 1 S.C.R. 525 at pp. 557-58, 47 C.C.C. (3d) 289 at p. 312; McConnell v. R., 1968 22 (SCC), [1968] S.C.R. 802, [1968] 4 C.C.C. 257. In McConnell, supra, at p. 809 S.C.R., p. 263 C.C.C., Ritchie J. held that the purpose of the section was to prevent an accused from having his right not to testify being presented in a manner suggesting his silence was a cloak for guilt:

I think it is to be assumed that the section in question was enacted for the protection of the accused persons against the danger of having their right not to testify presented to the jury in such fashion as to suggest their silence is being used as a cloak for their guilt.

Here, Lam had already chosen to testify. In deciding not to call reply evidence, he plainly was not exercising his right to silence nor could it be said that he was hiding behind that right "as a cloak for [his] guilt".

180However, that does not conclude the matter. The trial judge made it clear to the jury that Diu's counsel had violated the rules and pointed out to the jury that Lam had testified on cross-examination by the Crown regarding the heroin use and the ownership of the gun. In my view, the preferable course would have been to make no further comment to the jury on this matter.

181In a recent judgment of this court, released after the appeal was argued R. v. McNeill (2000), 2000 4897 (ON CA), 48 O.R. (3d) 212, [2000] O.J. No. 1357 (C.A.), released after this appeal was argued, Moldaver J.A., at para. 47 [p. 224 O.R.], considered the appropriate jury instruction where the rule in Browne v. Dunn had been violated:

In cases such as this, where the concern lies in a witness's inability to present his or her side of the story, it seems to me that the first option worth exploring is whether the witness is available for recall. If so, then assuming the trial judge is otherwise satisfied, after weighing the pros and cons, that recall is appropriate, the aggrieved party can either take up the opportunity or decline it. If the opportunity is declined, then, in my view, no special instruction to the jury is required beyond the normal instruction that the jury is entitled to believe all, part or none of a witness's evidence, regardless of whether the evidence is uncontradicted.

182I agree with this approach. In the present case, it seems to me that the approach taken by the trial judge served only to exacerbate the prejudice to the appellant Lam caused by the failure of Diu's counsel to cross-examine him on the points at issue. It is difficult to see why it was necessary to call to the jury's attention the fact that Lam had declined to go back into the witness box. The trial judge should not have required counsel for Lam to make his election not to call further evidence on the point in the presence of the jury, nor should the trial judge have made any reference to Lam's election not to re-take the stand in his first instruction.

183I conclude, accordingly, that the trial judge erred by informing the jury that he offered Lam the right to re-open his case.

X. Was the verdict against Diu for the death of Thai unreasonable?

184In my view, it cannot be said that the jury's verdict against Diu for the second-degree murder of Thai was unreasonable in light of the ballistics evidence and the evidence from surviving witnesses and Lam.

185Thai was shot once in the mouth with a bullet fired from a .45 Para-ordinance and once in the chest with a bullet fired from a .45 calibre weapon which could not be positively identified. The medical evidence indicated that the chest wound was likely fatal even if treated and that the shot to the mouth, while likely not fatal on its own, contributed to the cause of death. There was no evidence about which shot occurred first. The shot to Thai's mouth was fired from a range of 24-30 inches. The firing range of the shot to Thai's chest could not be determined but might have been fired from a distance given that no gunpowder stippling was found.

186Diu's submission that the verdict against him for the murder of Thai was unreasonable and not supported by the evidence may be summarized as follows:

-- Given that the shot to Thai's mouth was fired by a .45 Para- ordinance (which is the gun Lam used), the jury's verdict must be based on Diu firing a slug from the .45 Colt into Thai's chest.

-- Four slugs might have been responsible for Thai's chest wound. Two of these four slugs were positively identified to be fired from the .45 Para-ordinance (i.e., the gun shot by Lam).

-- The other two slugs were fired from a .45 calibre weapon, which make could not be positively identified. These two slugs could not have been fired by Diu given (i) the trajectories of these bullets, and (ii) that the number of .45 Colt casings found at the scene established that the .45 Colt was only fired four times and these four shots are accounted for by the two shots Diu fired at Bui and Pham and the other two shots Diu fired over the television and near the speaker.

-- Slug 31, which the ballistics experts testified might have caused Thai's chest wound, could only have done so if Diu had been standing closer to the bar than Thai. Virtually none of the witnesses placed Diu in this location. As well, the location of the .45 Colt casings suggest that this gun was fired from a location considerably further south than the bar area.

187While the ballistics evidence was not conclusive about who fired the shot to Thai's chest, the ballistics evidence also did not, in my view, eliminate the possibility that Diu shot Thai. The ballistics evidence established the minimum number of shots fired by each weapon, based on the number of casings found, but such evidence is not conclusive about the actual number of shots fired because not all casings may have been found. Further, the experts who testified were reluctant to say that the guns were fired from the area where the casings were found because casings can bounce or may have been kicked around. The trajectory evidence was not conclusive because such evidence was dependent on where the parties were relative to each other during the shooting and such positions could not be determined with any precision.

188On the other hand, there was some evidence that clearly implicated Diu in the death of Thai. Pham testified that he saw Diu shoot Thai, and Tien testified that he saw Thai fall after he heard a gunshot from the doorway where Diu had been standing. Lam testified that Thai was shot from a distance which supported the verdict that Diu shot Thai. The evidence that the shot to Thai's chest may have been fired from a distance and the evidence that the bullet entered Thai's chest from the side also supports the conclusion that Diu rather than Lam shot Thai in the chest.

189In light of this evidence, it cannot be said that the verdict against Diu for the murder of Thai was unreasonable.

XI. If this court concludes that the trial judge erred on any or all of the grounds raised by the appellants, did such error or errors give rise to a substantial wrong or miscarriage of justice or may the proviso be applied?

190The respondent submits that this is an appropriate case in which to apply the proviso, s. 686(1)(b)(iii), essentially on the basis that the ballistics evidence is so overwhelming against both appellants that, despite any errors made by the trial judge, we should find that there was no substantial wrong or miscarriage of justice and uphold the convictions.

191The fact that, as revealed by the ballistics evidence, the appellants fired their guns nine times while being fired at only once, certainly weakens the defence of self-defence. While the verdicts were consistent with the ballistics evidence, I am not persuaded that the ballistics evidence conclusively resolves the issue of self-defence. In my view, that issue cannot be resolved without coming to grips with the credibility of the appellants and the surviving witnesses.

192In determining whether there has been no substantial wrong or miscarriage of justice, as a result of an error at trial, an appellate court is to ask whether "the verdict would necessarily have been the same if such error had not occurred" (Colpitts v. R., 1965 2 (SCC), [1965] S.C.R. 739 at p. 744, [1966] 1 C.C.C. 146 p. at 149) or "whether there is any reasonable possibility that the verdict would have been different had the error at issue not been made" (R. v. Bevan, 1993 101 (SCC), [1993] 2 S.C.R. 599 at p. 617, 82 C.C.C. (3d) 310 at pp. 328-29). Section 686(1)(b) (iii) does not allow an appellate court to "retry the case to assess the worth of the residual evidence after the improperly adduced evidence has been extracted from the record": John v. R., 1985 15 (SCC), [1985] 2 S.C.R. 476 at pp. 481-82, 23 C.C.C. (3d) 326 at p. 330.

193In my view, the errors I have found were highly prejudicial to both accused. It is difficult to assess the impact on the jury of the reply evidence from the parents of the two deceased, but I cannot say with any degree of certainty that it would have been insignificant. Dao's improperly admitted videotaped statement identified both appellants as the aggressors. It implicated Diu in the death of Thai and was particularly damaging to Lam with respect to the death of Chau. Tien's excluded description of a struggle between Lam and Thai would have supported Lam's version of the events. The treatment of the bad character and propensity evidence against Diu and the evidence of after-the-fact conduct could well have had an impact upon the manner in which the jury assessed the credibility of the appellants.

194While it might have been possible to apply the proviso with respect to some of the errors I have identified had they occurred in isolation, when the cumulative effect of the errors is fairly considered, the inevitable conclusion is that a new trial is required.

195Accordingly, I conclude that s. 686(1)(b)(iii) should not be applied and that a new trial for both accused on all charges is required.

XII. Was Diu's sentence unreasonable?

196As I have concluded that a new trial is required, it is unnecessary to address this ground of appeal.

CONCLUSION

197For these reasons, I would set aside the convictions and order a new trial.