COURT OF APPEAL FOR ONTARIO
WEILER, LASKIN and GOUDGE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
James Lockyer and Andras Schreck For the appellant
Respondent
- and -
SALINDER DHILLON
Eric Siebenmorgen and Amy Alyea For the respondent
Appellant
Heard: October 10, 2001
- On appeal from the conviction and sentence imposed by Justice John Ross Belleghem, sitting with a jury, dated May 5, 1995.
A. INTRODUCTION
[1] On September 17, 1992, Gurdial Singh Sandhu was at his home in Brampton with his family and friends. Around 9:30 p.m. a man rang the door bell and asked to see him. When Sandhu came to the door, the man, apparently a stranger to him, shot him to death. The appellant was arrested the next afternoon as he left work and was charged with first degree murder.
[2] The fundamental issue at trial was the identity of the gunman. The Crown’s theory was that the appellant killed the victim because of an unpaid drug debt. The case for the Crown consisted of three categories of evidence: the eyewitness evidence of the victim’s son, his daughter and his nephew; some limited circumstantial evidence; and evidence of a confession by the appellant to a jailhouse informant. The appellant testified and denied that he committed the murder. On May 5, 1995, after two days of deliberation, the jury convicted the appellant of first degree murder.
[3] In this court the appellant raises numerous of grounds of appeal, which he says require that his conviction be set aside and a new trial ordered. These grounds of appeal support his overall submission that he was deprived of a fair trial. Because we have concluded that the appellant’s conviction cannot stand, we have decided to deal only with two of the grounds of appeal.
[4] The first ground is that the trial judge erred in his instructions to the jury about the evidence that was capable of providing confirmation of the jailhouse informant’s evidence. The second ground is that the trial judge erred by improperly admitting investigative hearsay evidence concerning the appellant’s antecedents.
[5] We agree with the appellant that these two grounds of appeal must succeed. In our view, each error deprived the appellant of a fair trial. We would therefore order a new trial.
B. BACKGROUND
[6] To put the two grounds of appeal in context, we will briefly highlight some of the salient facts.
[7] The Crown led evidence from three people who identified the appellant as the gunman. On the evening of September 17, the deceased’s 16-year-old son answered the door when the gunman rang. He called his father in response to the gunman’s request. The father came to the door, stepped outside, and was shot. The shooting was witnessed by the son and the victim’s 29-year-old nephew, who were both standing at the front door. The victim’s 21-year-old daughter, who was sitting in the living room, also saw the gunman when he was just outside the front door. None of the three eyewitnesses had ever seen him before.
[8] The eyewitness testimony was seriously compromised. Both the son and the nephew first identified the appellant from photographs shown to them the next day by the police. However, all of these photographs were of the appellant. About two and one-half months later, the daughter selected the appellant’s photograph from a proper photographic line-up. Before this, however, she had seen the same photograph of the appellant a number of times in the newspaper and on television in stories about his arrest for the murder of her father.
[9] The circumstantial evidence called by the Crown included evidence that on September 17 the appellant stayed overnight at the house of a relative who lived on the same street as the victim. The appellant’s relative owned a Pontiac Grand AM, which was found engulfed in flames late that night. It was like some of the descriptions of a car seen speeding away from the scene after the murder. Initially, the appellant and his relative maintained the lie that the car had been stolen on the evening of September 17. The appellant’s relative made a fraudulent insurance claim in respect of the car.
[10] At the residence where the appellant normally lived with his roommates, the police found a jacket similar to the one worn by the gunman and which was found to have some gunshot residue on its cuffs. The police also found an orange parna similar to one worn by the gunman. There was, however, no evidence that the appellant had returned to his own residence on the night of the murder. Nor were any clothes like the shirt and pants that the gunman was described as wearing ever found.
[11] Finally, the Crown led evidence from B.S. of a confession by the appellant that he had murdered the victim. B.S. first met the appellant in custody in late 1992 and shared a cell with him from March to May of 1993. Both men spoke Punjabi. By the time of the trial, B.S. had a criminal record of 43 convictions, 34 of them for offences of dishonesty. He had offered unsuccessfully to be a police informant at least once previously. In this case he came forward about a year after sharing a cell with the appellant because he said that he wanted to change his criminal ways.
[12] The appellant gave evidence in his own defence. He denied the murder and said he had never met nor heard of the victim. He said that the jacket and orange parna belonged to one of his roommates. He acknowledged sharing a cell with B.S. and discussing his case with him, but denied confessing anything to him. The appellant said that he had with him in their cell disclosure materials and press clippings about his case to which B.S. had access.
C. ANALYSIS
The improper instruction on evidence capable of confirming the testimony of the jailhouse informant
[13] B.S., whose evidence was described by the trial judge in his charge as central to the Crown’s case, was a quintessential jailhouse informant. He first met the appellant in custody. He had a very lengthy criminal record, much of it for crimes of dishonesty. He had previously offered information to the police, which they had declined to use.
[14] The trial judge therefore quite properly decided to give the jury a “Vetrovec” warning about his evidence. The trial judge reviewed with the jury the disreputable nature of the witness’s character, including his criminal record, and he several times repeated to the jury that, as a matter of common sense, they needed to find some confirmatory evidence tending to persuade them that B.S. was telling the truth before they could rely on his evidence. He thus reflected the simple approach set out by Moldaver J.A. in R. v. Krugel (2000), 2000 5660 (ON CA), 143 C.C.C. (3d) 367 (Ont. C.A.) at 395:
In light of Vetrovec, there is only one question that must be asked in deciding whether evidence is capable of being confirmatory – does the evidence strengthen our belief that the suspect witness is telling the truth?
[15] The trial judge illustrated for the jurors the type of evidence that they might find to be corroborative of the evidence of B.S. This is where, in our view, he went wrong. He gave the jury seven examples of potentially confirmatory evidence. Six of the examples he gave were not capable of confirming the evidence of B.S. Erroneously citing these examples gave the evidence of B.S. a credence it did not merit.
[16] The trial judge’s first example of potentially confirmatory evidence consisted of several background facts common to B.S. and the appellant. The trial judge charged the jury as follows:
Keeping in mind his lengthy criminal record, his admissions of past dishonesty and even the intervening fraud during the time that he was testifying before you, generally consider, first of all, you have two cellmates in close proximity. You have the length of time that they are together in a small cell, March to May. You have the fact that they are both Punjabi speaking individuals, they are strangers in a foreign land.
[17] That the appellant and B.S. shared a cell, that they spoke a common language or that they had a common ethnic origin as strangers in a foreign land does nothing to strengthen our belief that B.S. was telling the truth. Although these considerations might make it more likely that the appellant spoke truthfully to B.S., they are of no use in determining whether B.S. gave truthful evidence of that conversation. Circumstances might make an accused more likely to confide in an unsavoury witness but they do not strengthen the veracity of that witness’s account of the exchange. Indeed, circumstances tending to promote candour by an accused only appear to add strength to the unsavoury witness’s evidence that the accused confessed if one assumes that the accused is guilty. The trial judge was wrong to identify these background facts common to the appellant and the jailhouse informant as potentially confirmatory of the informant’s testimony.
[18] Second, the trial judge suggested that the appellant might feel secure in confessing to B.S. because he would know B.S. would be characterized as a “rat” for passing on this information to the authorities. The trial judge told the jury:
You may consider that there was a reasonable expectation of privacy by Mr. Dhillon; that is, that rats were frowned upon in jail, I suppose frowned upon is not strong enough, but rats are very unpopular in jail. However, we do know in response to that that [B.S.] ratted. [B.S.]’s history of gaining the trust of other persons and duping them, he is an admitted confidence man, [is] borne out by his record. If this was known to Dhillon, would he have confessed in the manner that [B.S.] says[?] What is the likelihood of anyone’s past involvement not being a matter of common knowledge in jail? Those are considerations.
[19] Again, in our view, this instruction is wrong. As with the first example used by the trial judge, this example might make the appellant more likely to speak candidly with B.S., but does nothing to strengthen our belief in the truthfulness of B.S.’s testimony about the conversation. Moreover, B.S.’s history of gaining the confidence of others and then duping them does nothing to confirm his credibility. Indeed, his previous fraudulent conduct was another reason to disbelieve him, not to believe him.
[20] Third, the trial judge referred to the appellant’s reaction to the news of the arrest in early 1993 of the relative with whom he stayed and whose Grand AM had been burned on the night of the murder. The appellant and B.S. offered differing accounts of the appellant’s reaction to the arrest. The appellant testified that he was happy because he thought the truth would come out and he would be released. According to B.S., however, the appellant was upset about his relative’s arrest. The trial judge appears to have offered this discrepancy as confirmation of B.S.’s evidence, inviting the jury to conclude that B.S.’s account was more “consistent”. This difference in the two men’s stories does nothing to confirm the truthfulness of B.S.’s evidence. It shows only that the jailhouse informant’s story was inconsistent with the other evidence on this point, that of the appellant. The mere fact that part of a jailhouse informant’s story seems generally plausible does not amount to confirmatory evidence.
[21] Fourth, as part of his review of evidence capable of confirming the evidence of the jailhouse informant, the trial judge told the jury they could take into account that B.S. did not seem to have received any material benefits from testifying. Instead, he was in solitary confinement or protective custody for ratting.
[22] This too was an error. The seeming absence of any benefit to B.S. should be scrutinized with scepticism. In the Report on the Commission on Proceedings Involving Guy Paul Morin, Commissioner Kaufman conducted a review of the “benefits” aspect of jailhouse informant testimony. He concluded that these informants came forward because of any number of real or perceived benefits and that an informant’s motive to lie may not be obvious or known to the court.
[23] The trial judge did not suggest that the jury view sceptically B.S.’s claim of having received no benefit for testifying. He did not tell the jury that B.S.’s claim of having come forward for altruistic motives – “I wanted to change myself because I have given a lot of pain to my family” – rang hollow in the light of his continuing criminal activity. More fundamentally, evidence that B.S. received no benefits for his testimony does not strengthen his credibility. At most it would counter a reason for disbelieving him, if it was ever suggested that he had received a benefit.
[24] Fifth, the trial judge invited the jury to consider that B.S. almost always – “90 percent of the time” – pleaded guilty to his charges. In effect, the trial judge transformed B.S.’s lengthy criminal record into a consideration weighing in favour of his credibility. We cannot see how B.S.’s guilty pleas support his credibility. How he collected his lengthy record for crimes of dishonesty is surely irrelevant to his credibility. As counsel for the appellant pointed out, the guilty pleas may simply have reflected the strength of the Crown’s case against him. B.S.’s lengthy criminal record, even if the product of guilty pleas, was a good reason to doubt his veracity, not enhance it.
[25] The trial judge’s sixth example, though weak, was the one example capable of confirming the evidence of B.S. The trial judge told the jury they could find confirmation in B.S.’s testimony that the appellant told him that, before ringing the victim’s doorbell, he looked through the front window and could see people in the house. The Crown suggested that only the murderer could have known that there was a front window through which people could be seen.
[26] The victim’s son testified that the murderer did not ring the doorbell as quickly as might be expected, and the Crown advanced the theory that the appellant looked in through the window before ringing the bell. But the only testimony on whether the murderer could see through the window came from the nephew of the victim, who said the window had curtains on it and nothing was visible. In addition, B.S. was out of custody for some time before to giving evidence and had the opportunity to observe the victim’s house himself, instead of learning about it from the accused. Nevertheless, the jury had a photograph of the house, which had been tendered in evidence and from which they could have drawn their own conclusion about whether it was possible to see in the front window. Thus, though not strong, this evidence was properly put to the jury as possible confirmation of B.S.’s testimony.
[27] Finally, the trial judge invited the jury to consider that the appellant was much smaller physically than B.S. and that B.S. was “a highly experienced inmate”. The trial judge suggested these facts might increase the likelihood the appellant would have trusted B.S. Again, we cannot see how this evidence was capable of providing any confirmation of B.S.’s evidence. If anything, B.S.’s experience as an inmate made it more likely that he could successfully fabricate a story for the jury.
[28] This brief review shows that six of the seven examples of evidence put to the jury as potentially confirmatory of B.S.’s testimony were not capable of being confirmatory. Leaving this evidence with the jury as confirmatory evidence amounts to an error of law. See R. v. B.(G.), 1990 115 (SCC), [1990] 2 S.C.R. 57; R. v. G.(G.) (1995), 1995 8922 (ON CA), 97 C.C.C. (3d) 362 (Ont. C.A.).
[29] We must therefore consider whether the Crown can rely on the proviso in s. 686(1)(b)(iii) by showing that the trial judge’s error occasioned no substantial wrong. What favours the Crown’s position are the following considerations: defence counsel at trial – not Mr. Lockyer or Mr. Schreck – did not object to the examples used by the trial judge; the trial judge listed some of the counter-arguments to be considered in deciding whether any evidence supported B.S.’s testimony; he also made it abundantly clear to the jury that whether evidence did in fact confirm B.S.’s evidence was for them to determine; and he told the jury that, even if they found confirmatory evidence, they were still free to reject all or part of B.S.’s evidence.
[30] Despite these considerations, in our view, the trial judge’s error is fatal to the appellant’s conviction. The Crown’s case was not overwhelming. Moreover, the other evidence relied on by the Crown – the eyewitness and circumstantial evidence – each had its own difficulties. The evidence of B.S. was thus of central importance to the Crown’s case. In accordance with Vetrovec, the jury was told that it should not act on this evidence without finding confirmation of it. Properly instructing the jury on confirmatory evidence was thus essential. These considerations show the seriousness of the error. The proviso does not help the Crown. This error by itself requires a new trial.
[31] After the argument of this appeal, the appellant tendered proposed fresh evidence relating to the activities of B.S. since his testimony at the appellant’s trial and made submissions regarding Commissioner Cory’s comments on jailhouse informants in the Report of the Inquiry Regarding Thomas Sophonow. Both the appellant and the respondent submitted written argument on what the court should do with the proposed fresh evidence and the Sophonow Report.
[32] Given the conclusion we have reached, we need not deal with the issues raised after argument save for this: we do not view the Sophonow Report as having changed the law concerning the admissibility of jailhouse informant evidence as that law has been developed by the Supreme Court of Canada in, for example, R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237.
The Improper Admission of Investigative Hearsay Evidence concerning the Appellant’s Antecedents
[33] During the course of the trial, the jury heard a great deal of evidence about the appellant’s alleged antecedents and about the antecedents of his relatives and associates. Almost all of this evidence was hearsay as it was based on what people – some named, some anonymous – and “Indian authorities” had told the police investigating the victim’s murder. And much of it was highly prejudicial to the appellant. For example, the jury learned the police had been told that the appellant’s family was involved in the drug trade and political extremism, that the appellant was involved in an extremist or terrorist group, and that the appellant had been charged with (and acquitted of) drug trafficking in India.
[34] In our view, the trial judge erred by permitting the Crown to lead this investigative hearsay evidence about the appellant’s antecedents. This evidence effectively deprived the appellant of a fair trial. We doubt that any limiting instruction to the jury could have undone the prejudice to the appellant caused by the admission of this evidence. At least the trial judge’s instruction to the jury did not do so.
[35] The Crown was permitted to lead this evidence of the police investigation because of two rulings made by the trial judge, one at the outset of the trial and the other mid-trial. To put the legal issue in context, we will briefly review what occurred. Before the jury was selected, the defence sought a ruling that it be permitted to lead evidence of other suspects and classes of suspects. The defence wanted to show that the police investigation was inadequate and that the police settled too early on the appellant as the murderer, ignoring or downplaying other possible leads. In seeking this ruling, the defence simply outlined what the evidence would be. The proposed evidence was not called by means of a voir dire.
[36] The trial judge’s ruling – the “other suspects ruling” – profoundly affected the rest of the trial. He ruled that the defence would be permitted to lead the following evidence:
The victim was “a prominent member of the Sikh community and embroiled in political controversy within that community”;
The Sikh community was “subject to serious political factionalism” in Canada and India that was “deep and deadly”;
The victim’s defence to his importing heroin charge had insulted the Golden Temple, the most sacred Sikh shrine; and
A man named Brar, who could be connected to the same faction as the victim, had been murdered in a similar manner three months after the victim’s murder, by which time the appellant was in custody.
- [37] The trial judge permitted the evidence to be led because he accepted defence counsel’s argument that “[t]hese facts are consistent with the defence theory that persons other than the accused killed the deceased and are, therefore, capable of supporting the accused’s alibi defence”. In addition, in the trial judge’s opinion,
The circumstances sought to be introduced by the defendant, with the evidence sought to be tendered by the Crown, are also necessarily appropriate to put the entire killing in context. To deprive the defendant of the contextual setting would be to give the jury a misleading picture of what occurred.
[38] Much of this proposed evidence about the background of the victim and his involvement with Sikh extremist politics was ultimately introduced at trial. Indeed, the Crown spoke of this evidence in its opening address to the jury and led this evidence through its witnesses. For example, the Crown called Detective English, one of the homicide investigators, who testified in chief that, while executing a search warrant on the victim’s family home, he seized the “Malhi” document. This was a document of unknown origin found in the victim’s home, identifying him as a member of the high command of a Sikh extremist group (the International Sikh Youth Federation) and setting out the victim’s illegal activities as a member of that group. In cross-examination, the defence began to question Detective English on the police investigation arising out the Malhi document. It appears that in the course of doing so, the defence became concerned about the lines of questioning this defence strategy could open for the Crown.
[39] As a result, when court resumed the following day, the defence raised with the trial judge the implications of his further questioning of Detective English and his questioning of other important police witnesses. The defence wanted to raise “various leads of theories or information arising from the Malhi document which is clearly second, third hand, multi-hand hearsay”. But the defence was also concerned that questioning the police witnesses on this hearsay evidence might open the door for the Crown to lead hearsay evidence of the appellant’s antecedents, and specifically of his alleged involvement in drug smuggling. The Crown responded by contending that the defence had already opened the door to hearsay evidence regarding the appellant’s political activities and involvement in the drug trade.
[40] The trial judge accepted the Crown’s contention. He ruled:
The Crown has to be free to respond to the position of the defence when it is couched in terms of other suspects and the only way that it can do that is to be permitted to adduce the evidence either in chief or cross-examination of the total extent of the investigation carried out.
In doing so, there is bound to be evidence which is hearsay, rumour and suspicion upon which the police acted, but the police are entitled to act differently than a jury does. If the defence position is that the investigation was deficient and the defence wishes to argue to the jury that because of that deficiency other possible leads or suspects can’t be ruled out, then the Crown must be at liberty to adduce the evidence which motivated the investigation.
I agree with the Crown that once the defence gets into asking the theories upon which the police investigated that the Crown is free to lead evidence of virtually everything that the police did that motivated them in their investigation, particularly as it pertains to ruling out other suspects. The reason for this is that by ruling out all other suspects, who may have been caught in the larger investigational net, they narrow their investigation to the accused and the Crown must be free to show the jury that this is the direction in which the investigation took them. [Emphasis added.]
[41] After this very broad mid-trial ruling – which the trial judge seems to have considered an inevitable consequence of the “other suspects ruling” – the strict rules of evidence were largely ignored. The Crown led all sorts of hearsay evidence about how the police eliminated other suspects in their investigation. Some of this evidence may well have been admissible in the light of the defence strategy. Thus, although on appeal the appellant argues that this evidence was inadmissible in its entirety, we prefer to focus on the far more objectionable consequence of the trial judge’s ruling: the Crown was permitted to lead otherwise inadmissible evidence of the information uncovered in the investigation that led the police to conclude that the appellant was the murderer.
[42] The Crown led hearsay evidence about the appellant’s past, linking him and members of his family with drug smuggling and terrorism. This evidence of the appellant’s antecedents included:
Rumour and comments that the appellant’s family had been in “a conflict with the Indian government, because of their association to a group that were deemed as extremists, if not terrorists”;
Information from unnamed “Indian authorities” that the appellant was also a member of an extremist or terrorist group, that he had been arrested because of his membership in the group, that he had bribed the police to be released from custody and that he fled India with the police in pursuit;
Information from Indian authorities that the appellant’s brother was involved in the drug trade, had been arrested in India, jumped bail and was still at large;
Evidence of the appellant’s arrest in India on heroin trafficking charges, and of his acquittal on those charges; and
Evidence of an anonymous letter linking the appellant with the victim.
In an effort to explain this evidence, the appellant confirmed much of it in his own testimony, thereby making the evidence no longer hearsay but acknowledged fact.
[43] This evidence of the appellant’s antecedents was undoubtedly prejudicial. The trial judge permitted the Crown to introduce this evidence to counter the defence’s contention that the police investigation was inadequate. The question we must answer is whether the trial judge erred in doing so.
[44] Ordinarily, evidence of the kind led by the Crown – bad character evidence of the accused’s antecedents – is inadmissible in a criminal trial. But this general principle admits of exceptions when the defence seeks to point the finger at other suspects. For example, if an accused leads evidence that a third person had the disposition to commit the crime alleged, the Crown may be entitled to lead evidence to show that the accused also had the disposition to commit the crime. To preclude the Crown from doing so would keep from the jury relevant evidence and would thus give them a distorted picture. As this court said in R. v. McMillan (1975), 1975 43 (ON CA), 23 C.C.C. (2d) 160 at 177:
It was implicit in the defence advanced that there were two people in the house who could have inflicted the injuries which caused the baby's death, one was a psychopath (the wife), the other was a normal person of good character (the respondent). In my view, the entire nature of the defence involved an assertion that the respondent was a person of normal mental make-up. In those circumstances, Crown counsel was entitled to show, if he could, that there were two persons present in the house who were psychopaths, not one. Any other conclusion would permit an accused to present an entirely distorted picture to the jury.
See also R. v. Parsons (1993), 1993 3428 (ON CA), 15 O.R. (3d) 1 (Ont. C.A.).
[45] In these cases evidence of the accused’s character became relevant because the defence asserted that a third party’s character made it more likely that the third party committed the crime charged. Here, however, the defence did not claim that a particular suspect was more likely than the appellant to have committed the crime. It did not seek to introduce evidence about the disposition of any particular suspect to commit the crime. Instead, the defence simply contended that the police investigation was inadequate. Cases like McMillan and Parsons do not apply.
[46] This is not the proper case to decide when, if ever, the defence should be permitted to introduce investigative hearsay evidence to support an allegation that the police investigation of other leads was inadequate. Where, however, as here, the defence asserts an inadequate police investigation and the trial judge admits this type of evidence, the Crown must be given a fair opportunity to rebut the defence allegation. Therefore, the Crown may be entitled to lead hearsay evidence of the police investigation to rebut a defence allegation that the investigation was inadequate where the trial judge is of the opinion that the probative value of the proposed evidence outweighs its prejudicial effect and the jury is instructed on its limited use. Indeed, the Crown may be able to lead otherwise inadmissible evidence of an accused’s antecedents if that evidence is relevant to the adequacy of the investigation. Evidence of an accused’s antecedents may be relevant where the police eliminated other possible suspects because of the strength of the case against the accused.
[47] But that was not the situation here. The police did not eliminate other suspects on the strength of their case against the appellant. They did not even claim to have established a link between their case against the appellant and their abandonment of other leads. Thus, the evidence of the appellant’s antecedents, though highly prejudicial, had no probative value. In these circumstances, assuming that the appellant was entitled to allege and lead evidence that the police never followed up promising leads, he should not have been exposed to having otherwise inadmissible hearsay evidence of his bad character led against him. To the extent that the trial judge’s “other suspects ruling” and his mid-trial ruling permitted the Crown to lead this hearsay evidence of the appellant’s antecedents, he erred in law. This error deprived the appellant of a fair trial.
[48] This bad character evidence so permeated the trial that we doubt that any jury instruction could have relieved against its prejudicial effects. We are at least satisfied that this jury instruction did not do so. Admittedly the trial judge did instruct the jury on the difference between evidence admissible for the truth of its contents and hearsay evidence, which is not admissible for the truth of its contents, and which therefore could be used only to assess the adequacy of the police investigation. And the trial judge did so not just in his charge to the jury but at various points during the trial.
[49] In his charge, however, the trial judge did not assist the jury by setting out those parts of the evidence of the police officers that amounted to investigative hearsay and those parts that did not. He therefore left the jury with the nearly impossible tasks of making the distinction themselves and determining the legitimate use of the hearsay evidence they had heard. And with the exception of a limiting instruction related exclusively to allegations against the appellant of prior acts of dishonesty, the trial judge never gave the jury a limiting instruction on the evidence of the appellant’s antecedents. He did not tell the jury that the hearsay evidence linking the appellant with political extremism, terrorism and the drug trade was not admissible to prove the truth of the contents and could not be used to infer that the appellant was the kind of person likely to commit the crime with which he was charged. Moreover, the trial judge failed to instruct the jury that the appellant’s acquittal on trafficking charges in India prevented them from concluding that the appellant had committed that offence. See R. v. Verney (1993), 1993 14688 (ON CA), 87 C.C.C. (3d) 363 (Ont. C.A.). The failure to so instruct the jury was important because of the Crown’s theory that the appellant had been motivated to kill the victim on account of a drug debt.
[50] We therefore conclude that the improper admission of investigative hearsay evidence of the appellant’s antecedents deprived him of a fair trial. Either for this reason or because of the improper instruction on evidence confirmatory of B.S.’s testimony, the appellant’s conviction for first degree murder must be set aside. He is entitled to a new trial.
[51] We conclude this part of our reasons with some general observations about investigative hearsay evidence led to address a defence contention of an inadequate police investigation.
(a) The risks of an accused advancing this kind of defence are all too apparent.
(b) If an accused intends to claim that a police investigation was inadequate, it may well be safest for the trial judge to conduct a full voir dire before ruling. In a voir dire, the trial judge can more precisely balance the probative value and prejudicial effect of the proposed evidence and need not rely on counsel’s broad representations about the evidence. Moreover, the accused’s decision about whether to pursue this line of questioning can then be made with fuller information about its potential impact.
(c) If the defence seeks to cast doubt on the adequacy of the investigation of other possible suspects, in principle we see no reason why the Crown is necessarily precluded from leading evidence about the police investigation of the accused, provided that evidence is relevant to the adequacy of the investigation. With limited resources, police decisions about investigating other suspects may well depend on their knowledge of the accused and his activities.
(d) If evidence of the police investigation is admissible and is pursued, its limited use must be made clear to the jury. See R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para. 184. In the course of instructing the jury on the permissible uses of this evidence, the trial judge would be wise to highlight specifically those parts of the investigation that would otherwise be inadmissible as either hearsay or police opinion.
D. DISPOSITION
- [52] For the reasons given we would allow the appeal, set aside the appellant’s conviction and order a new trial.
“John Laskin J.A.”
“S. Goudge J.A.”
“I agree: K.M. Weiler J.A.”
Released: July 16, 2002
