Her Majesty the Queen v. Marshall [Indexed as: R. v. Marshall]

77 O.R. (3d) 81

[2005] O.J. No. 3549

Docket: C33980

Court of Appeal for Ontario,

Rosenberg, Goudge and Borins JJ.A.

August 26, 2005

Criminal law -- Appeals -- Proviso -- Accused charged with first degree murder -- Accused's defence consisting of denial that he killed deceased -- Trial judge erroneously making it appear in his charge to jury that accused had requested alternative verdict of manslaughter or had made submissions on that issue -- Circumstantial case against accused very strong -- Proviso applying - Error occasioning no substantial wrong or miscarriage of justice.

Criminal law -- Evidence -- Privilege -- Informer privilege --"Innocence at stake" exception -- Accused charged with murder -- Trial judge refusing to order disclosure of identity of two police informers who provided police with some information concerning murder -- Trial judge correctly finding that accused had not shown that "innocence at stake" qualification to informer privilege operated in circumstances of this case.

Criminal law -- Trial -- Charge to jury -- Failure to call witnesses -- Defence counsel failing to call two witnesses who were in position to support his story -- Failure to call those witnesses permitting inference that their evidence would not have supported accused's testimony -- Adverse inference instruction could properly have been given to jury -- Trial judge not giving explicit adverse inference instruction and simply telling jury that failure to call witnesses meant that they had only accused's unsupported version of those important matters -- Instruction not erroneous.

Criminal law -- Trial -- Conduct of trial judge -- Number and quality of trial judge's many interventions during trial not making trial unfair but coming close to doing so.

Criminal law -- Trial -- Cross-examination -- Rule in Browne v. Dunn -- Defence advancing theory of case which was not put to Crown witnesses in cross-examination -- Trial judge permitting Crown counsel to cross-examine accused upon omissions in defence counsel's questioning and to allege recent fabrication -- Crown's cross-examination not improper -- Failure to cross-examine Crown witnesses on central aspects of accused's testimony relevant to accused's credibility -- Trial judge not erring in telling jury that they could take that into account in assessing weight to be given to accused's uncontradicted evidence.

The accused was charged with the first degree murder of a former drug associate of his. The theory of the Crown was that the accused, who was in financial difficulties, decided to accompany the deceased on a trip from Montreal to Toronto for a drug deal, steal the cocaine from him, kill him to cover up the crime and sell the cocaine on his own. The Crown alleged that the accused and the deceased drove from Montreal to Toronto in a Jeep borrowed from the accused's girlfriend P. The deceased was found stabbed to death in a parking lot in Toronto. The Crown contended that the accused sold the cocaine after killing the deceased, drove back to Montreal and arranged to have the Jeep cleaned of the deceased's blood in an acquaintance's garage. When the police recovered the Jeep, they [page82 ]found blood in the vehicle. The DNA profile matched that of the deceased. The police seized a cell phone belonging to the accused which was stained with blood. Most of the DNA profile matched that of the deceased, while some of it matched that of the accused. The accused co-operated with the police before his arrest, making several statements in which he admitted that he drove to Toronto with the deceased in the Jeep.

In his opening address to the jury, defence counsel for the first time advanced a different story, claiming that the accused and the deceased travelled separately to Toronto. The defence had not cross-examined any of the Crown witnesses on the accused's different account of the events surrounding the deceased's death. The accused testified. He claimed that the deceased drove P's Jeep to Toronto by himself and that the accused stayed behind in Montreal to attend a birthday party for one of his friends, L. He stated that he later drove to Toronto in another vehicle belonging to P, met the deceased at a restaurant, left him in the company of two men who he claimed later murdered the deceased, retrieved the cocaine from a bus station locker at the deceased's bidding, sold it and left Toronto.

During the cross-examination of the accused and in its closing submissions, the Crown relied on defence counsel's failure to cross-examine the Crown witnesses, who were key players in the events surrounding the murder, as evidence of fabrication. The Crown also relied on the accused's failure to call any witness to corroborate his attendance at L's birthday party, or even whether there was such a party, and his failure to call P to testify as to his use of her other vehicle on the day of the murder. The defence brought a motion for the disclosure of the identity of two police informants who had provided information relating to the deceased's murder. In dismissing the motion, the trial judge refused to apply the "innocence at stake" exception to the informer privilege. The accused was convicted of first degree murder. He appealed.

Held, the appeal should be dismissed.

The accused was not prejudiced by the Crown's cross- examination of him on the failure of the defence to call P or L. The accused's unexplained failure to call those witnesses permitted, if not compelled, the inference that their evidence would not have supported his testimony. An adverse inference instruction could properly have been given to the jury. The trial judge neither urged nor encouraged the jury to draw an adverse inference from the accused's failure to call P and L, and indeed did not use the words "adverse inference" at all. The trial judge instead told the jury that the result of the failure to call those witnesses was "that you have only the accused's version of the particular matter, unsupported by the evidence of any other witness on that important matter". There was no reversible error in the trial judge's instructions.

The trial judge did not err in permitting Crown counsel to cross-examine the accused upon any omissions in his counsel's questioning of witnesses and to allege recent fabrication. The cross-examination was proper. The failure of counsel to cross- examine Crown witnesses on central aspects of the accused's testimony was relevant to his credibility and it was proper for the trial judge to tell the jury that they could take this into account in assessing the weight to be given to the accused's uncontradicted evidence on those key issues. The trial judge did not suggest that the accused should be held responsible for the sins of his counsel, and in fact specifically instructed the jury that they were not to do so.

At trial, the Crown contended that the accused relied on cell phone records which were part of the Crown disclosure in an attempt to establish an alibi and create an innocent explanation for what happened on the day of the offence. Both [page83 ]the Crown and the trial judge were alert to the general rule that the Crown cannot cross-examine an accused on his use of disclosure because an accused's constitutional right to this disclosure cannot be allowed to become a trap for him. The trial judge instructed the jury that they were not to draw an adverse inference from the accused having availed himself of his right to disclosure. In the circumstances of this case, it was proper for the Crown to cross-examine the accused on the use that he made of the telephone records. The instructions to the jury were also proper.

The trial judge did not err in dismissing the accused's application to prevent the Crown from cross-examining him on his extensive criminal record or, alternatively, to edit it. It was open to the trial judge to conclude that the criminal record was probative of the accused's credibility.

In ruling that statements made by the accused to the police were admissible, the trial judge properly considered the full context of the various statements, including that they were not audio- or video-recorded and that in some cases not all officers who were present during the interview testified on the voir dire. The only custodial interrogation of the accused was completely recorded on videotape. The finding that the other statements were voluntary was not tainted solely because they were not taped or because some of the attending officers did not testify on the voir dire.

The trial judge correctly found that the accused had not shown that the "innocence at stake" qualification to the informer privilege operated on the facts of this case. The accused failed to meet the threshold requirement that disclosure of the informers' identities was the only way to raise a reasonable doubt as to his guilt. The information disclosed by the informers did not provide a basis for concluding that they were present at the murder, nor that they would be in a position to exculpate the accused.

The number and quality of the trial judge's many interventions during the trial came close to crossing the line of compromising the fairness of the trial, but ultimately did not create an unfair trial.

The trial judge erroneously told the jury that the defence conceded that it would be open to the jury to convict the accused of manslaughter. In fact, the accused had not asked for alternative theories to be placed before the jury. In every case where a trial judge knowingly attributes an alternative contradictory defence to an accused person who has not relied on the defence, the trial judge has not only undermined the defence, he has misled the jury. The accused's defence was his denial that he killed the deceased. However, the verdict would necessarily have been the same notwithstanding the trial judge's error. The circumstantial case against the accused was extremely strong. The error occasioned no substantial wrong or miscarriage of justice.

APPEAL from a conviction entered on July 21, 1999 by Ewaschuk J. of the Superior Court of Justice, sitting with a jury, for first degree murder.

Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.); R. v. Diu (2000), 2000 4535 (ON CA), 49 O.R. (3d) 40, [2000] O.J. No. 1770, 144 C.C.C. (3d) 481, 33 C.R. (5th) 203 (C.A.) [Leave to appeal to S.C.C. abandoned [2000] S.C.C.A. No. 406]; R. v. Paris, 2000 17031 (ON CA), [2000] O.J. No. 4687, 138 O.A.C. 287, 150 C.C.C. (3d) 162 (C.A.) [Leave to appeal to S.C.C. dismissed [2001] S.C.C.A. No. 124]; R. v. Poirier, 2000 3294 (ON CA), [2000] O.J. No. 2292, 133 O.A.C. 352, 146 C.C.C. (3d) 436 (C.A.), consd Other cases referred to R. v. Brown, [2002] 2 S.C.R. 185, [2002] S.C.J. No. 35, 210 D.L.R. (4th) 341, 92 C.R.R. (2d) 189, 162 C.C.C. (3d) 257, 50 C.R. (5th) 1, 2002 SCC 32; [page84] R. v. Cavan, 1999 9309 (ON CA), [1999] O.J. No. 4181, 126 O.A.C. 201, 139 C.C.C. (3d) 449, 139 C.C.C. (3d) 449 (C.A.) [Leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 560, [1999] S.C.C.A. No. 600]; R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, [1988] S.C.J. No. 40, 28 B.C.L.R. (2d) 145, 85 N.R. 81, [1988] 4 W.W.R. 481, 34 C.R.R. 54, 41 C.C.C. (3d) 385, 64 C.R. (3d) 1; R. v. Henderson (1999), 1999 2358 (ON CA), 44 O.R. (3d) 628, [1999] O.J. No. 1216, 134 C.C.C. (3d) 131 (C.A.); R. v. Koffman, 1985 3640 (ON CA), [1985] O.J. No. 133, 10 O.A.C. 29, 20 C.C.C. (3d) 232 (C.A.); R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281, [1997] S.C.J. No. 14, 143 D.L.R. (4th) 38, 207 N.R. 145, [1997] 3 W.W.R. 457, 41 C.R.R. (2d) 266, 112 C.C.C. (3d) 385, 4 C.R. (5th) 259; R. v. Lomage (1991), 1991 7228 (ON CA), 2 O.R. (3d) 621, [1991] O.J. No. 362, 44 O.A.C. 131 (C.A.); R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, [2001] S.C.J. No. 13, 195 D.L.R. (4th) 513, 266 N.R. 275, 80 C.R.R. (2d) 217, 151 C.C.C. (3d) 321, 40 C.R. (5th) 1; R. v. McNeill (2000), 2000 4897 (ON CA), 48 O.R. (3d) 212, [2000] O.J. No. 1357, 144 C.C.C. (3d) 551, 33 C.R. (5th) 390 (C.A.); R. v. Moore-McFarlane (2001), 2001 6363 (ON CA), 56 O.R. (3d) 737, [2001] O.J. No. 4646, 160 C.C.C. (3d) 493, 47 C.R. (5th) 203 (C.A.); R. v. Oickle, [2000] 2 S.C.R. 3, [2000] S.C.J. No. 38, 2000 SCC 38, 187 N.S.R. (2d) 201, 190 D.L.R. (4th) 257, 259 N.R. 227, 585 A.P.R. 201, 147 C.C.C. (3d) 321, 36 C.R. (5th) 129 (sub nom. R. v. Oickle (R.F.)); R. v. Peavoy (1997), 1997 3028 (ON CA), 34 O.R. (3d) 620, [1997] O.J. No. 2788, 117 C.C.C. (3d) 226, 9 C.R. (5th) 83 (C.A.); R. v. Scott, 1990 27 (SCC), [1990] 3 S.C.R. 979, [1990] S.C.J. No. 132, 43 O.A.C. 277, 116 N.R. 361, 1 C.R.R. (2d) 82, 61 C.C.C. (3d) 300, 2 C.R. (4th) 153; R. v. Tombran (2000), 2000 2688 (ON CA), 47 O.R. (3d) 182, [2000] O.J. No. 273, 142 C.C.C. (3d) 380, 31 C.R. (5th) 349 (C.A.) [Leave to appeal to S.C.C. dismissed [2000] S.C.C.A. No. 294]; R. v. White (1999), 1999 3695 (ON CA), 42 O.R. (3d) 760, [1999] O.J. No. 258, 132 C.C.C. (3d) 373, 22 C.R. (5th) 56 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 686(1) [as am.]

James Lockyer and Brian Snell, for appellant. Sandra Kingston and Eric Siebenmorgen, for respondent.

The judgment of the court was delivered by

[1] BORINS J.A.:-- Following a three-month trial before Ewaschuk J. and a jury, David Marshall was convicted of the first degree murder of Denis Haldas and sentenced to life imprisonment without parole for 25 years. He appeals his conviction, alleging nine grounds of judicial error. While the Crown's position is that there is no merit in any ground of appeal, it submits that were we to find that the trial judge erred, this is a proper case for the application of the proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 because the evidence of the appellant's guilt is so overwhelming. The Crown submits that because of the overwhelming nature of the evidence of the appellant's guilt, there is no reasonable possibility that the result would have been different had there been no errors.

[2] For the reasons that follow, I would dismiss the appeal. [page85 ]

Background

[3] The body of Denis Haldas was found in downtown Toronto on the morning of June 6, 1997. The appellant was arrested and charged with the first degree murder of Haldas on September 29, 1997. On July 21, 1999, following a trial before Ewaschuk J. and a jury, the appellant was convicted of first degree murder and sentenced to life imprisonment without parole for 25 years.

[4] At the time of trial, the appellant was 34 years old. He had been living in the Montreal suburb of Pierrefonds at the time of Haldas's death. His primary source of income was from drug dealing. He dealt large quantities of cocaine, hashish and marijuana in Montreal, Toronto and Hamilton. He had a lengthy criminal record consisting of 46 previous convictions.

[5] The deceased was also a drug dealer. He was introduced to the appellant in June 1996. They became friends. Later that summer Haldas and his common law partner, Rachel Morin, moved a few blocks away from the appellant. By July 1996, the appellant and Haldas had become partners in the drug trade, distributing cocaine in Toronto through a network they had established. During that same year, they also started a legitimate business, an import/export company, which did not generate a substantial income.

[6] There were numerous players involved in the appellant's and Haldas's network, many of whom testified at the trial. William Ramsay, David Goobie and Dominic Baressi all dealt drugs in the Toronto and Hamilton areas. According to the appellant's evidence at trial, Steve Vogel supplied him with kilograms of cocaine in Montreal. Andrew Scoppa was a known drug dealer in Montreal and a supplier of large quantities of cocaine.

[7] The events preceding the murder began to take shape on February 20, 1997, when the appellant was incarcerated for violating his parole. He remained in custody until his release on May 2, 1997. During the intervening months, Haldas continued dealing drugs through Ramsay and Goobie, who previously had been the appellant's contacts. At the same time, the relationship between the appellant and Haldas began to deteriorate and they ceased doing business together. By the time of his release from custody in May 1997, the appellant was in financial difficulty as a result of past drug debts. He ultimately filed for bankruptcy on July 23, 1997.

[8] From this time onwards, the Crown and the defence at trial presented very different versions of events. It is necessary to present both versions. [page86 ]

Overview of the Crown's Case

[9] The Crown pointed to the appellant's financial pressures as the primary motive for murdering Haldas. The appellant was alleged to owe money directly to Haldas and others, and to have personally guaranteed a loan made by Scoppa to Haldas. Furthermore, Haldas had taken over their joint drug operation while the appellant was in jail for a parole violation. This resulted in the severance of their business relationship and they became competitors in the drug trade.

[10] The Crown led evidence of the animus that the appellant had for Haldas. This included statements given by him about Haldas on May 22 and 29 and on June 2, 1997.

[11] To deal with his mounting financial troubles, in late May 1997, the appellant organized a meeting with Baressi, his Hamilton contact, for the purpose of arranging a deal where he would provide Baressi drugs to pay off debts that he owed to Baressi. He intended to steal the drugs from Haldas, who would be accompanying him from Montreal to Toronto in early June 1997 for a purported drug deal involving Ramsay and Goobie. The appellant planned to kill Haldas in the process to cover his tracks and to eliminate Haldas as a source of financial pressure and competition. On June 5, 1997, Haldas told both Vogel, from whom he had obtained two kilograms of cocaine, and Rachel Morin, that he was travelling with the appellant to Toronto to take care of some business affairs that afternoon.

[12] Sometime around 2:00 p.m. on June 5, 1997, the appellant arrived at Haldas's house driving the jeep of his girlfriend, Pina Panzera. A short while later, Morin witnessed Haldas and the appellant driving away in the jeep. That was the last she saw of Haldas.

[13] Using phone records from the appellant's cellular telephone, the Crown tracked the appellant's progress in the jeep as he drove from Montreal to Toronto with Haldas and the two kilograms of cocaine obtained from Vogel. Phone records placed the appellant near Brockville at 6:37 p.m. and near Port Hope at 8:39 p.m. By 9:55 p.m., phone records indicated the appellant was in downtown Toronto where he received a call from Montreal. After storing the two kilograms of cocaine in a locker at the Toronto bus station, the appellant and Haldas went to eat at Rodney's Oyster Bar in Toronto. A call record placed them at the restaurant at 10:52 p.m.

[14] According to the Crown, the appellant and Haldas then drove to Goobie's apartment, allegedly to confirm that it was safe to deliver the cocaine at that time. It was in the parking lot next [page87 ]to Goobie's residence where Haldas's body was found the next morning. The Crown contended that the appellant killed Haldas in the jeep by stabbing him 22 times. He then dumped Haldas's body in the parking lot.

[15] At 11:18 p.m., a phone call from a pay phone at the Toronto bus station was made to Baressi. The Crown reasoned that after killing Haldas, the appellant returned to the bus station to retrieve the cocaine. He sold it to Baressi, keeping the entire profit from the sale for himself. The appellant then drove back to Montreal. Again, his progress was tracked with the assistance of call records.

[16] At 7:38 a.m. on June 6, 1997, the appellant called Goobie from Lancaster, Ontario. By that time, Goobie was aware that a body had been discovered in the parking lot next to his apartment building, but was unaware that it was Haldas's. The Crown maintained that the purpose of this call was to ascertain whether the body had yet been discovered. Once back in Montreal, the appellant arranged to have his jeep cleaned of Haldas's blood in the garage of Ralph Mascoll, an acquaintance he had met in prison. Call records indicated that the appellant contacted Mascoll a number of times between June 6 and June 10, 1997.

[17] Later on June 6, 1997, the appellant was sent back to Toronto by Vogel to look for Haldas and the unaccounted for two kilograms of cocaine. While in Toronto, the appellant informed his travelling companions that the body found next to Goobie's apartment building was that of Haldas. At that time, the police had not yet ascertained the identity of the body. The Crown contended that only his killer could have known that Haldas was dead.

Overview of the Appellant's Case

[18] The appellant testified on his own behalf and provided a markedly different version of the events surrounding the death of Haldas than that asserted by the Crown.

[19] According to the appellant, while he was incarcerated for his parole violation, he continued to receive proceeds from the drug transactions that Haldas was conducting. Once released from prison in May 1997, he repaid a debt to Andrew Scoppa that he had guaranteed on behalf of Haldas. The appellant testified that he was kidnapped by Scoppa on May 14, 1997 and held forcibly until the outstanding debt was repaid. He claimed that during the course of his confinement, he was beaten by two of Scoppa's associates, nicknamed "Iceman" and "Loco". The appellant testified that he was concerned for his safety and wanted to remove himself from the centre of the drug trade. [page88 ]

[20] The meeting between the appellant, Ramsay, Baressi and his associate in late May 1997 was for the purpose of setting up a new arrangement whereby Haldas would supply cocaine directly to Baressi. Previously, Baressi had been the appellant's connection. On June 5, 1997, Haldas was to travel to Toronto with cocaine from Vogel and was to deliver it to Baressi. Ramsay was going to facilitate the introduction.

[21] On the afternoon of June 5, 1997, the appellant said that he went by Haldas's house to pick him up in Panzera's jeep. They later drove to a mall where Panzera was working and the appellant got the keys to Panzera's other vehicle, a Pontiac Bonneville. Thereafter, Haldas, who had the cocaine, drove the jeep to Toronto.

[22] According to the appellant, later that day he met with Vogel who informed him that he wanted the appellant to travel to Toronto to facilitate the introduction between Haldas and Baressi, because Vogel did not have sufficient confidence in Ramsay to do the job. The appellant was delayed in leaving for Toronto that afternoon because he had to attend a birthday party for one of his friends, Jimmy Lionis. The appellant testified that he drove to Toronto alone in the Pontiac Bonneville, leaving Montreal at approximately 6:00 p.m.

[23] The appellant gave a different account than the Crown with respect to many of the phone calls listed on his cellular phone record. He testified that one of the calls made near Port Hope at 8:39 p.m. was to Ramsay to tell him that he was no longer needed at the drug transaction that night. He also asserted that the 9:55 p.m. call he received was from Haldas, who asked him to meet him at Rodney's Oyster Bar. The appellant arrived there 20 minutes later to find Haldas seated with two men, nicknamed "Trigger" and "Loco". The appellant knew these men as associates of Scoppa. "Loco" had been one of the assailants in the kidnapping of the appellant on May 14, 1997.

[24] The appellant testified that he left Rodney's Oyster Bar shortly after 11:00 p.m. and drove to the Toronto bus station in the Pontiac Bonneville, leaving Haldas, "Trigger" and "Loco" at the restaurant, as well as Panzera's jeep. He did not see Haldas again after their meeting at the restaurant. At Rodney's, Haldas had given the appellant a key to a locker at the bus station where he had stored three kilograms of cocaine. After retrieving the cocaine at the bus station, the appellant called Baressi to arrange the delivery. He then drove to meet Baressi in Oakville. While en route, at 11:22 p.m. he received a call which the Crown asserted was made from Montreal, but which the appellant stated was from Haldas. The Crown similarly alleged that the 9:55 p.m. call that the appellant said was from Haldas was in fact made from [page89 ]Montreal, based on expert testimony that both calls had originated at the "Montreal switch".

[25] The appellant supplied the drugs to Baressi in Oakville at around midnight on June 5, 1997. At approximately 2:00 a.m. on June 6, 1997, after receiving partial payment from Baressi, the appellant began his drive back to Montreal.

[26] On the morning of June 6, 1997, the appellant called Goobie to find out when Haldas had come to his apartment. He testified that he did not know at that time that Haldas had been murdered. He then met with Vogel and gave him the money he had received from the cocaine sale to Baressi. As Vogel had supplied five kilograms of cocaine to Haldas, only three of which were sold, he was concerned about the whereabouts of the remaining two kilograms. The appellant was directed by Vogel to fly to Toronto with one of Vogel's associates to search for the two kilograms of cocaine, the jeep and Haldas. Before leaving Montreal, the appellant again called Goobie in an effort to ascertain the whereabouts of Haldas.

[27] While participating in the search in Toronto, the appellant called Vogel around 5:00 p.m. It was during this conversation that Vogel told the appellant that a body found in the parking lot next to Goobie's apartment building was that of Haldas, based on information he had deduced from inquiries being made by the Montreal police at the time. The appellant repeated this to Ramsay, who had met him at the airport in Toronto. The appellant returned to Montreal later that evening. Three days later, on June 9, 1997, the appellant told police that Haldas had "met with foul play". The appellant testified that he recovered Panzera's jeep in Montreal on either June 12 or 13, 1997. He could not remember whether he met someone when he picked it up.

[28] The defence attacked the Crown's theory of the murder. Defence counsel contended that the Crown had not established a motive for why the appellant would murder his friend. His declaration of bankruptcy on July 23, 1997 belied any suggestion that he received a financial windfall through the alleged theft and sale of the two kilograms of cocaine. Counsel also argued that the timing of the murder precluded the appellant's participation in it given his account of his whereabouts, which was established by his explanation of each of the numerous calls tracking his location.

Post-Murder Investigation

[29] The appellant became a suspect shortly after the police determined that it was Haldas who had been murdered. On June 27, 1997, the police executed a search warrant for Panzera's jeep at the appellant's residence. The jeep was not there. The appellant informed the police that his lawyer had advised him to give [page90 ]the jeep to a private investigator to catalogue everything inside of it. At trial, the appellant testified that he had lied to the police and that the jeep had never been provided to a private investigator. He said that he had lied on the instructions of his lawyer.

[30] On June 28, 1997, the police recovered the jeep. Blood was in various areas of the jeep and the DNA profile matched that of Haldas. In addition, blood stains on the floor of Mascoll's garage revealed the deceased's DNA profile. According to the Crown, the appellant had taken the jeep to Mascoll's garage to be cleaned. As well, tire tread marks from the scene of the murder were matched with the right front tire of the jeep. On September 16, 1997, a search warrant was executed at the appellant's house. Among the items seized was the appellant's old cell phone, which he had replaced on June 9, 1997. The phone was stained with blood. Most of the DNA profile matched that of Haldas, while some of it matched that of the appellant.

[31] During the course of the investigation, the appellant spoke to the police on 37 different occasions, including a lengthy statement to the police on September 29, 1997, the date he was arrested. In several statements, he admitted that he drove to Toronto in the jeep with Haldas. After his arrest, he promised to produce evidence that would clear him of the charge, but failed to attend a meeting with the police to do so. He mentioned to police that there were two other individuals who knew what happened on the day of the murder, but refused to provide the police with their names. The appellant maintained to the police that he would prove his innocence. However, he did not tell the police that on June 5, 1997, he and Haldas drove from Montreal to Toronto in separate vehicles, nor did he provide evidence to substantiate his differing accounts of what he told the police at their many lengthy interviews throughout the police investigation of Haldas's murder.

The Trial

[32] Several contentious issues arose regarding the conduct of the trial that now form grounds of appeal in this case.

[33] In defence counsel's opening address to the jury after the Crown had closed its case, counsel advanced for the first time the version of events that the appellant and Haldas travelled separately to Toronto. Counsel contended that sometime after Haldas had left for Toronto in the jeep, Vogel directed the appellant to go there as well, which he did in the Pontiac Bonneville. The defence had not, however, cross- examined any of the Crown witnesses, including Vogel, Goobie and Ramsay, on the appellant's different account of the events surrounding June 5, 1997. [page91 ]

[34] The trial Crown argued that the appellant's version of events had been fabricated after having been provided with the Crown's disclosure of its case. During the cross-examination of the appellant and in its closing submissions, the Crown relied on defence counsel's failure to cross-examine the Crown witnesses, who were key players in the events surrounding the murder, as evidence of the fabrication. The Crown also relied on the failure of the appellant to call any witness to corroborate his attendance at Jimmy Lionis's birthday party, or whether there even was such a party. The Crown made much of the appellant's failure to call Pina Panzera to testify as to his use of her Pontiac Bonneville on the day of the murder. The Crown asserted that an adverse inference should be drawn from the failure of the defence to call these witnesses. It was a central element of the Crown's case that in his 37 conversations with the police, the appellant at no time told the police that he and Haldas drove from Montreal to Toronto in separate vehicles on June 5, 1997.

[35] The defence brought several pre-trial motions. One was to determine whether the appellant's many statements to the police were voluntary and admissible. At the conclusion of the voir dire, nearly all were admitted. As well, the defence brought a motion for the disclosure of the identity of two police informants who had provided information relating to Haldas's murder. In dismissing the motion, the trial judge refused to apply the "innocence at stake" exception to the informer privilege.

[36] In summary, there was one central factual issue at trial. As it was common ground that on June 5, 1997, the appellant and Haldas travelled from Montreal to Toronto, the key issue was how and when they did so. The Crown's position was that they left Montreal together after 2:00 p.m. and drove to Toronto in a jeep belonging to the appellant's girlfriend, Pina Panzera, and that the appellant later killed Haldas in the jeep. The appellant's position, advanced for the first time at his trial, was that he and Haldas drove to Toronto separately, Haldas in the jeep and the appellant in the Bonneville.

[37] The issue whether the appellant drove to Toronto in the jeep with Haldas or alone in the Bonneville was critical to the case. The presence of the deceased's blood in Panzera's jeep was much more damning evidence in relation to the appellant if that was the vehicle he had in Toronto on the night of the murder. The issue of how the appellant travelled to Toronto was also critical to the veracity of the appellant's testimony that he left from Rodney's in the Bonneville, leaving the deceased at the restaurant with the supposed murderers, Trigger and Loco, and that he received a call from Haldas while en route to meet Baressi in the Bonneville. [page92 ]

[38] As I will explain, this central issue of how and when the appellant and Haldas travelled to Toronto is the basis of several of the appellant's grounds of appeal.

[39] The appellant, who it can be said in fairness is a career criminal, participated in many meetings and interviews with the police in which he purported to help them solve Haldas's murder. However, it was not until he testified following the conclusion of the Crown's evidence that he disclosed that he and Haldas travelled to Toronto separately. In the appellant's many interviews with the police, the appellant had maintained that they had driven together to Toronto where they became separated, after which he did not know what happened to Haldas.

The Issues

[40] The appellant raises nine grounds of appeal. I will deal with them in the order in which they were presented in the appellant's factum.

(1) The appellant's failure to call certain witnesses

[41] The appellant contends that he was prejudiced by the Crown's cross-examination of him on the failure of the defence to call Pina Panzera to confirm that he took her Pontiac Bonneville on the afternoon of June 5, 1997, or Dominic Baressi to confirm meeting with him on June 5, 1997 and in late May 1997, or Jimmy Lionis to confirm that he was at Lionis's birthday party on the afternoon of June 5, 1997. The appellant also contends that he was prejudiced by the Crown's position in closing argument to the jury that his failure to call Panzera and Lionis to support his testimony was because they could not confirm his story "because it never happened".

[42] The appellant further argues that he was prejudiced by various comments made by the trial judge in reviewing this portion of the evidence, including the trial judge's comment: "The story of the Bonneville is unadulterated nonsense and pure perjury, unsupported by the evidence of one single witness other than the accused himself." In addition, the appellant submits that the trial judge's charge was in error because in the circumstances it was improper to instruct the jury that it could draw adverse inferences from the failure of the defence to call these witnesses. The appellant submits that the trial judge should have instructed the jury that there may have been good reasons for not calling the witnesses and that there was no onus on the appellant to corroborate his own testimony.

[43] In summary, the appellant submits that the Crown's contention to the jury that it should draw adverse inferences from [page93 ]the appellant's failure to call these witnesses, together with what the appellant characterized as the trial judge's "approval" of this contention, resulted in a miscarriage of justice.

[44] In response, the Crown, correctly in my view, argues that the only two witnesses who were the subject of a potential adverse inference instruction arising from the appellant's failure to call them were Panzera and Lionis. They were critical witnesses for the defence as they were capable of corroborating the appellant's testimony that he did not drive to Toronto together with Haldas in Panzera's jeep, and that he drove there alone later in the day in Panzera's Pontiac Bonneville, having remained in Montreal to attend a birthday party for Lionis. As such, the appellant's unexplained failure to call them certainly permits if not compels the inference that their evidence would not have supported his testimony.

[45] The Crown points out that in his testimony, the appellant raised the importance of other witnesses on a material issue, namely, how and when he and Haldas drove to Toronto on June 5, 1997. Pina Panzera was the appellant's common law wife. The appellant testified that he and Haldas went to her place of employment on that day to get the keys for the Bonneville. If true, this evidence isolated the appellant from Haldas's blood in the jeep. Similarly, Jimmy Lionis could corroborate the appellant's testimony that he did not travel to Toronto with Haldas on June 5, 1997. Both witnesses were critical to removing the appellant from arguably the most incriminating evidence -- Haldas's blood in the jeep. It was clear that the appellant had greater access to the witnesses than did the Crown, yet no reason was advanced for not calling them. Panzera had been sitting in the courtroom throughout the trial. Thus, the failure of those witnesses to testify can properly be attributed to the conduct of the appellant, who in his testimony initially raised their corroborative significance to his defence. As the appellant had advanced the certainty that Panzera and Lionis could corroborate that he did not travel to Toronto with Haldas, there was a clear and compelling reason that would entitle the jury to draw an adverse inference from his failure to call them.

[46] In language approved by defence counsel at the pre- charge conference and to which no objection was taken, the trial judge instructed the jury as follows:

Both the Crown and accused have criticized the other side for not calling particular witnesses. Let me start with the Crown. It failed to call Dominique Baressi, Raymond, Jonathon Soles and Ralph Mascoll as Crown witnesses. It may be that the Crown did not do so because those individuals appeared to be the accused's friends, and their evidence would not likely [page94 ]have helped the Crown. In any event, neither did the accused call these witnesses, and it was open for him to do so.

Let me now turn to the accused. The accused failed to call Pina Panzera to prove he took the Bonneville to Toronto and that he returned to Montreal in it. Similarly, he called none of the many individuals who could have proven that he was at the birthday party or the alleged birthday party at the Pizza Luna, without Denis Haldas, shortly before the accused allegedly left for Toronto alone in the Bonneville.

In evaluating the failure of the accused to call these witnesses, it is necessary to keep in mind that it was also open to the Crown to call these potential witnesses. However, it must also be kept in mind that these individuals appeared to be the accused's friends, and that the Crown only learned about the relevance of their evidence at the thirteenth hour, when the accused testified. The result is that you have only the accused's version on the particular matter, unsupported by the evidence of any other witness on that important matter.

I repeat. The result is that you have only the accused's version of the particular matter, unsupported by the evidence of any other witness on that important matter.

Finally, it is necessary to keep in mind the basic principle that the Crown must establish the accused's guilt beyond a reasonable doubt, and the accused need prove nothing.

[47] Speaking for this court in R. v. Koffman, 1985 3640 (ON CA), [1985] O.J. No. 133, 20 C.C.C. (3d) 232 (C.A.), at p. 237 C.C.C., Martin J.A. discussed the principles that apply when it is permissible to instruct a jury that they are entitled to draw an adverse inference from the failure of a party to call a witness:

Comment on the failure to call a witness, although permissible in some circumstances, should be exercised with caution: see R. v. Zehr (1980), 1980 2964 (ON CA), 54 C.C.C. (2d) 65 at p. 68; R. v. Charrette (1982), 1982 3738 (ON CA), 67 C.C.C. (2d) 357 at p. 359, 27 C.R. (3d) 268. Even where it is appropriate for the trial judge to comment on the failure of an accused to call a particular witness it is incumbent upon the trial judge to instruct the jury that there is no obligation on the defence to call a particular witness and that there may have been a perfectly valid reason for not calling the witness: see R. v. Zehr, supra, at pp. 72-3; R. v. Gallagher, [1974] 3 All E.R. 118 at p. 123. Even where a comment on the failure to call a witness is appropriate, the failure to call a witness should not be given undue prominence and a comment should only be made where the witness is of some importance in the case.

At pp. 237-38 C.C.C., Martin J.A. added that it must be made clear to the jury that there is no onus on the defence to produce corroborative evidence of the accused's testimony and that the inference that may be drawn from the failure to call a witness is not the guilt of the accused, but, rather, that if the witnesses were called, their testimony would be unfavourable to the defence.

[48] There is no doubt that the credibility of the appellant was critical in respect to the central issue in the case from both the [page95 ]perspective of the Crown and the defence -- whether the appellant and Haldas drove to Toronto together in Panzera's jeep on June 5, 1997. As well, there is no doubt that as potential witnesses, Panzera and Lionis were witnesses of "some importance". It follows, in my view, that this is a case in which an adverse inference instruction could properly be given.

[49] In general, the instruction given by the trial judge satisfied the criteria outlined in Koffman by Martin J.A. The jury were neither urged, nor encouraged, to draw an adverse inference from the appellant's failure to call Panzera and Lionis. Indeed, the trial judge did not use the words "adverse inference". It was not made to appear that the accused bore any onus to produce corroborative evidence of his testimony, nor did the trial judge give this part of his instructions undue prominence. Although the trial judge did not specifically instruct the jury that they could not infer the appellant's guilt from his failure to call the witnesses, given that he never used the words "adverse inference", there is no likelihood that they would have understood that they could draw such an inference. In not suggesting that the missing evidence might have been adverse to the appellant, the instruction was favourable to him. The trial judge should have made it clear that there was no obligation on the appellant to call a particular witness and that there may have been valid reasons for not doing so. But given the way the trial developed, where it no doubt became obvious to every person involved in the trial that a major issue was whether the appellant had recently fabricated his evidence, I do not think that this omission prejudiced the appellant. Consequently, I find no reversible error in the trial judge's instructions.

[50] I would not give effect to this ground of appeal.

(2) The cross-examination of the appellant and the rule in Browne v. Dunn

[51] In his opening address to the jury, delivered after the case for the Crown had been closed, the appellant's counsel, Mr. Cohen, stated for the first time that on June 5, 1997, the appellant did not drive to Toronto with Haldas in the jeep. This statement conflicted with the position consistently taken by the appellant in his various statements to the police. To the Crown's surprise, defence counsel further asserted that the appellant's evidence would be that on June 5, 1997, he obtained the keys to the Bonneville from Panzera; that it was only later in the afternoon that Vogel told him that he would be going to Hamilton to do a drug deal and that Vogel was to be repaid the following [page96 ]morning; and that en route to Toronto, the appellant telephoned Ramsay to obviate his attendance at the anticipated drug deal involving Haldas. It was not until his trial testimony that the appellant stated, also for the first time, that Haldas was on a mission of his own to Toronto, in part, to collect moneys owed to him by Goobie.

[52] Vogel, Ramsay and Goobie had testified for the Crown. They were not cross-examined by defence counsel on any of the "facts" outlined by him for the first time in describing the appellant's case in his opening to the jury.

[53] Immediately after defence counsel's opening, he was asked by the trial judge if "any of this" was put to "Vogel or Goobie or Ramsay". The trial judge was, of course, alert to the rule in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.). In R. v. Henderson (1999), 1999 2358 (ON CA), 44 O.R. (3d) 628, [1999] O.J. No. 1216, 134 C.C.C. (3d) 131 (C.A.) at p. 636 O.R., p. 141 C.C.C., Labrosse J.A. described the rule in this way: "This well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box."

[54] Considerable discussion ensued between counsel and the trial judge, who was concerned by the difficulties arising from the appellant's late-breaking theory of his defence. After expressing the view that the jury had to be alerted to the issue of defence counsel's failure to cross-examine on this version of the evidence, the trial judge suggested three possible remedies to the situation that had been created: (1) a mistrial; (2) recalling the witnesses in reply; or (3) crafting an appropriate instruction to the jury.

[55] Regarding the option of an appropriate instruction, the trial judge recognized that care had to be taken to tell the jury that the appellant should not be held responsible for the failure to cross-examine the Crown witnesses, as that may have been a tactical decision or oversight on his counsel's part. The trial judge was also alive to the issue of whether to exercise his discretion to require the recall of the witnesses before considering a special instruction. The trial judge's analysis of the available options in the situation is consistent with the subsequent judgment of our court in R. v. McNeill (2000), 2000 4897 (ON CA), 48 O.R. (3d) 212, [2000] O.J. No. 1357, 144 C.C.C. (3d) 551 (C.A.), at paras. 47-48 [See Note 1 at the end of the document]. As Crown [page97] counsel ultimately decided not to request leave to recall any witnesses, I do not think that the trial judge can be faulted for failing to recall them on his own initiative.

[56] The Browne v. Dunn issue arose again prior to the Crown's completion of his cross-examination of the appellant. The Crown asked the court for permission to cross-examine the appellant upon the omissions in his counsel's questioning of Vogel, Ramsay and Goobie, not to suggest that this was the appellant's fault, but to suggest that the appellant's evidence was recently fabricated. He also requested a special instruction to the jury, the content of which could be decided at the end of the case.

[57] In the discussion that followed, defence counsel agreed that Crown counsel could cross-examine the appellant upon his testimony in-chief, including those matters on which the Crown witnesses had not been cross-examined and to suggest to the appellant that he had concocted his evidence upon such matters after the fact. Defence counsel's real concern, as it was throughout the various discussions on this issue, was that the accused not be blamed, or an adverse inference against him be drawn, for his own failure to cross-examine the witnesses. The trial judge ruled that Crown counsel could cross-examine the appellant upon any omissions in his counsel's questioning and to allege, in this regard, recent fabrication.

[58] During cross-examination, Crown counsel questioned the appellant upon each of the important areas that his counsel had failed to put to the Crown witnesses. It was not suggested during the cross-examination that Mr. Cohen's failure to cross-examine the Crown's witnesses should be held against the appellant, nor that an adverse inference should be drawn against the appellant for these failures.

[59] At the pre-charge conference, the trial judge read his proposed instruction to the jury on the Browne v. Dunn issue and asked Mr. Cohen if he was happy with it, to which defence counsel replied: "Perhaps not the sins of the lawyer, but that's fine, Your Lordship." Prior to addressing the jury, the trial judge again read his proposed instruction to counsel. Defence counsel stated he thought it was "fair enough".

[60] This is the instruction to the jury to which the appellant's counsel now takes exception:

It is a rule that a lawyer must generally put a suggestion to a witness in cross-examination if the lawyer wishes to contradict the witness by later calling evidence to the opposite effect testified to by the witness, or wishes to make an allegation against the witness on a matter not mentioned in examination in-chief.

I repeat. A lawyer must generally put a suggestion to a witness in cross-examination if the lawyer wishes to contradict the witness by later calling [page98 ]evidence to the opposite effect testified to by the witness, or to make an accusation against the witness on a matter not mentioned in examination-in-chief. Consequently, I ruled that Crown counsel was entitled to cross-examine the accused on various points that the accused testified to on which his lawyer had not cross-examined the particular Crown witness, and to point out in cross-examination the failure of the lawyer to follow the normal rule.

However, that said, I must also add that the rule is not cast in stone. For example, defence counsel may have honestly anticipated that he would not be calling a defence when he was cross-examining the Crown witness, and therefore did not want to put the matter to the witness, particularly if it did not help his client, even though he knew that should his client testify, he would be forced to contradict the Crown witness on the particular point.

In any event, several Crown witnesses were not cross- examined on various points on which they generally would have been cross-examined so as to give them a fair opportunity to respond to the allegation at that time. In the end, neither the accused nor the Crown chose to recall the particular witness to allow him or her to respond to the particular matter. It was open for either side to recall the witness. Of course, the side who called the witness would be at a disadvantage by not being permitted to cross-examine the witness. The result is that you have only the accused's version of the particular matter, unsupported by the witness who testified on other matters at trial but who had knowledge of the matter testified to by the accused. On the other hand, you must keep in mind that the Crown bears the onus of proving the accused's guilt beyond a reasonable doubt, and the accused need prove nothing. Thus it is most problematic whether the failure of defence counsel to put the allegations to the Crown witnesses when they testified during the Crown's case, should reflect adversely on the accused. Please keep in mind that the sins of the lawyer, if that be the case, should not be visited on his client.

[61] The appellant submits that Crown counsel's cross- examination of him was unfair and prejudicial as it was suggested that he be held responsible for his counsel's decision. He also argues that the ongoing debate between counsel on the issue would have been distracting to the jury. He further submits that the prejudice flowing from the cross- examination was "exacerbated" by the following errors in the trial judge's instructions to the jury:

(1) Telling the jury that whether the failure to cross-examine should reflect adversely on the appellant was "most problematic", when he should have told them that the appellant should not be held responsible for his counsel's tactical decision or oversight.

(2) Telling the jury that "the side who [re-]called the witness would be at a disadvantage by not being permitted to cross- examine the witness" as this gave the impression that the Crown was unfairly prejudiced by the appellant's conduct of the case and that the Crown chose not to recall [page99 ]any witnesses because it had unfairly been placed in a disadvantageous position.

(3) Overstating the significance of the rule in Browne v. Dunn.

[62] In R. v. Paris, 2000 17031 (ON CA), [2000] O.J. No. 4687, 150 C.C.C. (3d) 162 (C.A.), application for leave to appeal to S.C.C. dismissed [2001] S.C.C.A. No. 124, which was a sexual assault case, Doherty J.A. provided the following helpful discussion of the so-called rule in Browne v. Dunn (at paras. 22-24):

Where a witness is not cross-examined on matters which are of significance to the facts in issue, and the opposing party then leads evidence which contradicts that witness on those issues, the trier of fact may take the failure to cross- examine into consideration in assessing the credibility of that witness and the contradictory evidence offered by the opposing party. The effect of the failure to challenge a witness's version of events on significant matters that are later contradicted in evidence offered by the opposing party is not controlled by a hard and fast legal rule, but depends on the circumstances of each case: . . . [citations omitted].

The potential relevance to the credibility of an accused's testimony of the failure to cross-examine a complainant on matters that the accused subsequently contradicts in his testimony will depend on many factors. These include the nature of the matters on which the witness was not cross- examined, the overall tenor of the cross-examination, and the overall conduct of the defence. In some circumstances, the position of the defence on the matters on which the complainant was not cross-examined will be clear even without cross-examination. In other circumstances, the areas not touched upon in cross-examination will not be significant in the overall context of the case. In such situations, the failure to cross-examine will have no significance in the assessment of the accused's credibility. In other circumstances, however, where a central feature of the complainant's evidence is left untouched in cross- examination or even implicitly accepted in that cross- examination, then the absence of cross-examination may have a negative impact on the accused's credibility.

The connection between the failure to cross-examine a complainant on significant matters and the accused's credibility seems to me to be straightforward. In discussing the "costs" of the failure to cross-examine, Professor Mewett puts it this way in his text, supra at 2-32 [A. Mewett, Witnesses, 2nd ed., looseleaf (Toronto: Carswell, 1999)]:

. . . The cost is how much credence a fact finder will give to evidence that is introduced for the first time after the witness whose testimony is now being questioned has finished testifying and who no longer has an opportunity to tell his or her side of the story. As such, it may be unwise not to cross-examine an opposing witness when he or she is on the stand if it is intended to contradict that witness's evidence. . . . The trier of fact may well wonder why there was no cross-examination, and take that into account in determining what weight to give to the contradictory testimony.

[63] In my view, there was nothing improper about the Crown's cross-examination of the appellant. Indeed, in discussions with [page100] the trial judge that preceded his ruling permitting the cross-examination, defence counsel agreed that the Crown could cross-examine the appellant on those matters about which the Crown witnesses had not been cross- examined to suggest that he had recently concocted his evidence. This was not a case where the anticipated evidence of the appellant would have been apparent from his counsel's cross-examination throughout the Crown's case. Nor was it a case where the omissions in cross-examination were matters of mere detail.

[64] As for the trial judge's instruction to jury, before it was delivered the trial judge twice read his proposed charge to give defence counsel the opportunity to suggest any changes that he felt were required. Defence counsel was satisfied with the content of the proposed instruction. Nor did defence counsel object to the instruction after it was delivered to the jury. Clearly, the failure of counsel to cross-examine Crown witnesses on central aspects of the appellant's testimony was relevant to his credibility and it was proper for the trial judge to tell the jury that they may take this into account in assessing the weight to be given to the appellant's uncontradicted evidence on these key issues.

[65] Although the trial judge's instruction may not have been perfect, in my view the appellant was not prejudiced. The trial judge told the jury that "neither side" chose to recall witnesses, although it was "open" for either side to do so. The jury would not necessarily draw the inference that it would be the Crown who would be prejudiced by defence counsel's conduct. They equally might have thought that the appellant could suffer from a lack of cross-examination if his counsel recalled the witnesses. The trial judge did not suggest, implicitly or otherwise, that the appellant should be held responsible for the sins of his counsel; on the contrary, he specifically instructed the jury not to do so. Although it would have been preferable had the trial judge not used the word "problematic" as he concluded his instruction on this issue, the word appeared in his proposed charge which defence counsel twice approved, and also in his charge to the jury to which no objection was taken.

[66] Having said this, I would question the need for what amounted to a "special instruction" on the Browne v. Dunn issue. See Doherty J.A.'s comments in Paris at para. 28 that "there is no need" for a trial judge "to refer to counsel's obligations [under the rule in Browne v. Dunn] when instructing the jury". I think that much of the detail in the trial judge's charge could have been omitted and that the charge should have been limited to a simple direction that the failure to cross-examine Vogel, Goobie and Ramsay on the matters in issue could be considered in weighing [page101] the appellant's evidence and did not necessitate an adverse inference in respect to the appellant's credibility.

[67] Nonetheless, it would appear that both parties were requesting such an instruction. In particular, defence counsel was very concerned that the jury not draw an adverse inference against the accused as a result of his failure to cross-examine the Crown witnesses. As the Browne v. Dunn issue was a live one in this case, in my view, the jury properly could have taken the failure to cross-examine into consideration in determining whether the appellant had concocted his evidence. I thus do not think that there was any reversible error in the trial judge's charge.

[68] I would not give effect to this ground of appeal.

(3) The Crown's allegation that the appellant used disclosure to tailor his evidence

[69] In support of its case that the appellant and Haldas drove to Toronto together in the jeep and that the appellant stabbed the deceased to death in the jeep, the Crown relied on the call records of the appellant's cell phone to track both his whereabouts and that of Haldas. A record of the calls was produced at the preliminary hearing and an amended record was produced before the trial. At trial, the Crown contended that the appellant relied on the record of his calls to attempt to establish an alibi and an innocent explanation of what occurred on June 5, 1997. As such, the appellant's use of the records was a central aspect of the Crown's position that the appellant's testimony was fabricated or a recent concoction. Consequently, the Crown sought a ruling that it be permitted to cross-examine the appellant to establish that he had used the records to tailor his testimony.

[70] In argument before the trial judge, as a foundation for permission to cross-examine the appellant to this effect, Crown counsel pointed out that in his examination-in-chief the appellant referenced each of his activities before, during and after the murder, to a specific telephone call. In its factum the Crown provided a detailed summary of the appellant's testimony in this respect. The Crown contended that in the appellant's statement to the police on September 29, 1997, he taunted the police with what he was going to say after he obtained disclosure from the prosecution.

[71] Both the Crown and the trial judge were alert to the general rule that the Crown cannot cross-examine an accused on his use of disclosure because an accused's constitutional right to this disclosure cannot be allowed to become a "trap" for him or her: R. v. White (1999), 1999 3695 (ON CA), 42 O.R. (3d) 760, [1999] O.J. No. 258, 132 C.C.C. (3d) 373 (C.A.); [page102] R. v. Cavan, 1999 9309 (ON CA), [1999] O.J. No. 4181, 139 C.C.C. (3d) 449 (C.A.), applications for leave to appeal to S.C.C. dismissed [1999] S.C.C.A. Nos. 560 and 600.

[72] After counsel for the Crown had vetted his proposed line of cross-examination with the trial judge, who found that it was proper, the trial judge twice gave the following mid-trial direction to the jury:

It is necessary to keep in mind that every accused has a right against self-incrimination as well as a right to disclosure of the Crown's case before the trial begins. You must not draw any adverse inference from the accused having availed himself of those Constitutional rights. However, the fact remains that an accused may fabricate evidence after hearing witnesses in court, after seeing exhibits and after receiving disclosure in order to tailor his evidence in accordance with the witnesses, the exhibits or the disclosure. The fact also remains that an accused may not fabricate his evidence in accordance with the testimony of Crown witnesses, exhibits or disclosure and may well be telling the truth. It will be up to you to make that determination, keeping in mind that every accused has a Constitutional right to hear Crown witnesses and have disclosure before testifying.

In his charge to the jury, the trial judge reiterated that "the reality is that an accused who has remained silent on a particular matter may indeed fabricate his evidence and tailor it after the fact to fit the Crown's case".

[73] The appellant contends that the trial judge erred in permitting the Crown to cross-examine him on his use of disclosure of his telephone records. He argues that the facts did not support the ruling and that it was improper for the trial judge to invite the jury to draw an adverse inference against him if they chose.

[74] I agree with the Crown that in the circumstances of this case it was proper for the Crown to cross-examine the appellant on the use that he made of the telephone records. In White, supra, Doherty J.A. stated that not every reference to disclosure is necessarily impermissible (at para. 22):

I do not intend to suggest that every line of cross- examination involving reference to disclosure is improper. Sometimes, it will be necessary for the Crown to establish that an accused received disclosure as a step in a legitimate line of cross-examination. For example, the appellant had referred to telephone records of calls between himself and the complainant in the course of his examination-in-chief. He had used those phone calls to assist him in placing the times and dates of certain meetings with the complainant. In cross- examination, Crown counsel brought out the fact that the appellant had full access to those records before he testified. This was proper cross-examination intended to show that the appellant was aware of the contents of the phone records before giving his evidence and that any suggestion that the records confirmed his testimony should be considered in that light.

[75] In this case, the appellant used the telephone records disclosed by the Crown to attempt to establish that he was in Montreal [page103] long after Haldas had left for Toronto in the jeep, to establish an alibi that would locate him far from Haldas at the time of the murder, to support his evidence that he was kidnapped by dangerous men, one of whom was named "Loco", to prove that he was at a birthday party with Lionis at 5:00 p.m., to show that he only learned the identity of the deceased the next day from Vogel and to establish that he had no involvement in cleaning the blood from the jeep. Defence counsel at trial agreed that his client could be cross-examined on his use of the phone records and even agreed that it would be proper for the Crown to argue that the appellant had fabricated his evidence in conformity with the disclosure. The trial judge was concerned that the jury might draw an inappropriate adverse inference and he thus cautioned the jury not to do so twice in mid-trial directions and again during the cross-examination. Trial counsel, after raising some concerns, ultimately agreed with the mid-trial instructions. In my view, the mid-trial instructions and the charge to the jury were proper.

[76] I would not give effect to this ground of appeal.

(4) The right to remain silent

[77] The appellant submits that the Crown in his cross- examination and in his closing address invited the jury to draw an adverse inference from the appellant's exercise of his right to silence insofar as the appellant failed to tell the police about a number of facts that he ultimately testified to at trial. These omissions include the appellant's failure to disclose to police the Bonneville story, the details of the birthday party and the names of "Trigger" and "Loco", as well as his failure to provide documentation to police to support his evidence that he had no financial difficulties in May 1997. The appellant further submits that the trial judge was required to warn the jury in the strongest of terms that no adverse inference could be drawn from either the accused's silence on various issues prior to the close of the Crown's case or his failure to assist the police during their investigation.

[78] Typical of the impugned aspects of the Crown's closing is the following:

Mr. Marshall tells this story about meeting Pina and taking the Bonneville for the first time in almost two years after the fact. Now, let me be quick to add, Mr. Marshall does not have to speak to the police, he has a right to remain silent and we cannot hold it against him if he exercises that right, if he chooses to remain silent. But the point here is we know very well he didn't remain silent. He spoke to the police. He spoke to them 37 times. And during those 37 conversations, not once did he mention the Bonneville. He waits through 37 separate conversations with the police. He waits through being arrested, taken away in handcuffs, put through a preliminary inquiry and a three-month trial. Instead of just telling the police in one of those 37 [page104] conversations what he now claims is the truth. Mr. Marshall's not stupid. You saw him in the witness box. He's very good at looking out for himself. If that story were truth, he would have told it during one of the 37 times when he agreed to speak to the police about this case. He wouldn't have to put up with these two years of having a first degree murder charge hanging over his head. If the story was true and any rational person chose to speak to the police, again don't have to, any rational person who spoke as often as Mr. Marshall did would have included that Bonneville tale in the blink of an eye if it were true. Once he chose to give up his right to remain silent and speak to the police, there is no reason for him not to mention the Bonneville story. Unless he hadn't thought it up yet.

[79] The appellant argues that the trial judge reinforced the Crown's closing argument that the appellant would have provided more information to the authorities if he had been innocent. He attacks that portion of the trial judge's charge in which he summarized the Crown's closing argument, which included comments similar to those set out above. The appellant contends that the trial judge reinforced the Crown's suggestion that the exercise of the appellant's right to silence was linked to the fabrication of his testimony. Although the trial judge followed this summary with a correct explanation of an accused's right to silence and warned the jury that it could not draw an adverse inference against the accused because he availed himself of his constitutional right to silence, the appellant submits that he undermined this instruction by adding:

I have already instructed you that an accused also has a constitutional right to discovery of the Crown's evidence before trial. As with the right of silence, you must not draw an adverse inference from the fact that an accused has availed himself of this constitutional right to discovery. However, the reality is that an accused who has remained silent on a particular matter may indeed fabricate his evidence and tailor it after the fact to fit the Crown's case. On the other hand, an accused who has remained silent and received discovery may well be telling the truth. Again, I remind you that the Crown bears the onus of proving guilty beyond a reasonable doubt and the accused need prove nothing.

[80] As the Crown points out, it is necessary to understand the circumstances surrounding the appellant's frequent contacts with the police to appreciate the contextual foundation for the trial Crown's cross-examination of the appellant and his closing argument to the jury. The Crown contends that the appellant "set the stage" for his own cross- examination by ignoring the advice of his lawyer and by engaging in 37 conversations with the police when he was under no duty to do so. The Crown characterizes these conversations with the police as a "game of cat and mouse" that he chose to play with his accusers.

[81] This is not a case similar to those relied on by the appellant, such as R. v. Poirier, 2000 3294 (ON CA), [2000] O.J. No. 2292, 146 C.C.C. (3d) 436 (C.A.) [page105] and R. v. Paris, supra, where an allegation that an accused failed to give an explanation of his or her conduct at an early opportunity conflicted with his or her right to remain silent. Rather, because the appellant chose to play a game with his constitutional right to silence, he must now face up to the potential consequences of losing that game. As in R. v. Lomage (1991), 1991 7228 (ON CA), 2 O.R. (3d) 621, [1991] O.J. No. 362 (C.A.), the appellant had assumed the posture of an innocent man eager to assist the police to find the "real" culprits for the purpose of throwing them off his trail.

[82] There were two issues about which the appellant was cross-examined by the Crown and with respect to which the appellant had chosen to exercise his right to remain silent: the details of the Lionis birthday party and the names of the people last seen at Rodney's with Haldas. It was improper for the Crown to suggest in cross-examination that the appellant's failure to disclose these details to the police indicated that he had fabricated them. However, given that in his many meetings and conversations with the police the appellant had assumed the posture of an innocent man eager to help the police find the person responsible for Haldas's murder, the remainder of the Crown's cross-examination was a proper examination of the relevant discrepancies between the appellant's statements to police and his examination-in-chief.

[83] The trial judge twice cautioned the jury in appropriate mid-trial instructions that no adverse inference could be drawn from the accused's exercise of his right to silence. This admonition was repeated on three occasions by Crown counsel in his closing address to the jury. On six occasions during his closing address, Crown counsel told the jury that there is no obligation upon an accused person to speak with police.

[84] In reviewing the trial judge's instructions, I do not find that he "reinforced" the Crown's suggestion that had the appellant been innocent, he would have been more co-operative with the police and would have provided them with more information. In my view, the trial judge took care in his charge in dealing with this issue, elaborating upon his mid- trial instructions. He not only reminded the jury that they were to draw no adverse inference from the appellant's exercise of his right to silence, but he also specifically reminded them that the appellant was under no legal obligation to help the police prove the case against him. Moreover, he re- affirmed that no adverse inference could be drawn from the appellant's failure to fulfil his various promises to the police. The impugned passage from the trial judge's charge must be read in this light.

[85] As well, I consider it significant that appellant's counsel approved the mid-trial instructions, agreed to the proposed [page106] charge at the pre-charge conference and raised no relevant objections following the charge to the jury. It is also significant that as the trial evolved, the central issue became whether the appellant had fabricated his evidence, particularly as it related to his selective silence to the police in the context of the Crown's pending disclosure of its case. It was the appellant who ultimately put the case on that basis. This was not an easy issue for the trial judge to deal with. In my view, he did so in an even-handed manner and I find no reversible error in his instructions.

[86] I would not give effect to this ground of appeal.

(5) The Corbett application

[87] At the time of his trial, the appellant had 47 convictions between 1981 and 1993. His most recent conviction in 1993 was for conspiracy to traffic in cocaine, for which he was sentenced to five years. He was on parole related to this offence when Haldas was killed. Before the appellant testified, his counsel applied on the basis of R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, [1988] S.C.J. No. 40, 41 C.C.C. (3d) 385 to prevent the Crown from cross-examining the appellant on his criminal record, or, in the alternative, to edit it. Defence counsel submitted that the prejudicial effect of putting the entire record before the jury outweighed its probative value. The trial judge dismissed the application and allowed in the criminal record in full.

[88] The appellant submits that the trial judge erred in principle in the exercise of his discretion by failing to edit the criminal record because the bulk of the convictions had occurred between 11 and 16 years prior to the killing of Haldas, while the 1993 conviction had already been disclosed as part of the narrative. The appellant particularly objects to the failure to edit the 1982 convictions for possession of a weapon and common assault "because of their similarity with the offence charged". The appellant's main position is that owing to their age, the convictions lacked probative value in relation to his credibility.

[89] I agree with the Crown that the appellant has provided no principled reason on which this court should interfere with the trial judge's exercise of his discretion. It was open to the trial judge to conclude as he did that the criminal record was probative of the appellant's credibility and that merely leaving the 1993 narcotics conviction would not provide the jury with an accurate picture of his record.

[90] In addition, the appellant complains that the Crown in his closing address to the jury made improper use of his criminal record by inviting the jury to use it to find that the appellant had [page107] lived a life of deceit, had tricked Haldas, and was trying to trick the jury into believing his innocence.

[91] Although Crown counsel made appropriate use of the criminal record, his use of rhetoric in doing so was close to the line. However, the trial judge's correct instruction to the jury, warning them that the prior convictions could not be used as evidence that the accused committed the crime or as propensity evidence, was sufficient to ensure that they made proper use of the appellant's criminal record.

[92] I would not give effect to this ground of appeal.

(6) Whether the trial judge erred in finding certain statements made by the appellant to be voluntary

[93] A voir dire was held to determine the voluntariness of the appellant's many statements to the police. The appellant neither testified nor called any evidence on the voir dire. His position was that he had been offered certain inducements, which rendered his statements involuntary.

[94] The appellant submits that in ruling that the statements were voluntary and admissible the trial judge made four errors: (1) that it was unnecessary for police to keep a complete record of the statements; (2) that voluntariness was not in issue unless the accused was talking about himself; (3) that the timing of the making of the statements was relevant; and (4) that the intentions of the interviewer were relevant.

[95] The appellant raises the issue of an incomplete record with respect to statements made to the police on May 6, June 9, 26 and 27 and July 10, 1997. He complains, for example, that only the first part of a conversation he had with police on June 26, 1997 was tape-recorded and that one of the officers who was present for the June 27, 1997 interview did not testify on the voir dire. The appellant submits that the trial judge erred in stating that the full context of these statements was not required to determine their voluntariness. He relies on R. v. Moore-McFarlane (2001), 2001 6363 (ON CA), 56 O.R. (3d) 737, [2001] O.J. No. 4646, 160 C.C.C. (3d) 493 (C.A.) in support of his submission that "the information put before the court was insufficient" to prove the voluntariness of the statements.

[96] The Crown points out that the trial judge did not have the benefit of Moore-McFarlane, supra, or R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, [2000] S.C.J. No. 38, 147 C.C.C. (3d) 321 when he made his rulings. However, from the reasons that he gave for his rulings it is apparent that he properly considered the "full context" of the various statements, including that they were not audio or video [page108] recorded, and that in some cases not all officers who were present during the interview testified on the voir dire.

[97] The trial judge's understanding of the "full context" issue was reflected in this observation:

The law is this, I think the fact that the statement is incomplete means you don't have a full record as to the conversation between the police and the accused . . . [The] judge may exclude a statement for incompleteness where it results in an inability to determine if the statement was voluntary. I think that reflects the law.

[98] As noted in Oickle and Moore-McFarlane, the failure to record interrogations does not render them inherently suspect. Rather, a non-recorded interrogation becomes suspect when the following circumstances, which do not exist in this case, are all present: (1) the suspect is in custody; (2) recording facilities are readily available; and (3) the police deliberately interrogate the suspect without giving any thought to making a reliable record. The only custodial interrogation of the appellant took place after his arrest on September 29, 1997. It was completely recorded on videotape. In my view, the finding that the five impugned statements were voluntary was not tainted solely because they were not audio or videotaped, or because some of the attending officers did not testify on the voir dire.

[99] The appellant alleges that the trial judge's ruling on the voir dire discloses three additional errors: the trial judge erred in concluding that the issue of the voluntariness of certain statements was not engaged because the appellant was giving information about "third parties"; the trial judge erred in reasoning that the voluntariness rule does not apply to statements that the appellant made before the murder; and he erred in concluding that the intention of one of the appellant's interviewers was relevant to the voluntariness inquiry. The appellant has not shown that he was prejudiced by the finding that any of the impugned statements were voluntary.

[100] I would not give effect to this ground of appeal.

(7) Disclosure of the identity of two police informers

[101] The appellant submits that the trial judge erred in failing to order the disclosure of the identity of the two police informers who provided the police with some information concerning the death of Haldas. At trial, he contended that the informers were material witnesses and relied on the "innocence at stake" exception to the informer privilege as discussed in R. v. Scott, 1990 27 (SCC), [1990] 3 S.C.R. 979, [1990] S.C.J. No. 132, 61 C.C.C. (3d) 300 and R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281, [1997] S.C.J. No. 14, 112 C.C.C. (3d) 385. [page109]

[102] I agree with the Crown that the trial judge correctly found that the appellant had not shown that the "innocence at stake" qualification to the informer privilege operated on the facts of this case. Subsequent to the trial judge's ruling, the Supreme Court of Canada developed evidentiary and procedural standards in respect to the determination of whether informer privilege or solicitor-client privilege must yield to the "innocence at stake" exception in a given case: R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, [2001] S.C.J. No. 13, 151 C.C.C. (3d) 321; R. v. Brown, 2002 SCC 32, [2002] 2 S.C.R. 185, [2002] S.C.J. No. 35, 162 C.C.C. (3d) 257. The standards established by the Supreme Court include the threshold determination of whether the information sought is not available from any other source and whether the accused is otherwise unable to raise a reasonable doubt as to guilt. If these threshold conditions are met, then the two-part "innocence at stake test" is to be applied: see McClure,[cf

2] supra, at paras. 48-51. The first part of the test requires that the accused seeking production must provide an evidentiary basis to conclude that the informer possesses information that could raise a reasonable doubt as to the accused's guilt. The second part provides that if such an evidentiary basis exists, the trial judge should examine the available information to determine whether, in fact, it is likely to raise a reasonable doubt.

[103] In my view, the Crown is correct in its submission that the appellant failed to meet the threshold requirement that disclosure of the informers' identities was the only way to raise a reasonable doubt as to his guilt. I would agree with the trial judge that the information disclosed by the informers did not provide a basis for concluding that they were present at the murder, nor that they would be in a position to exculpate the accused.

[104] I would not give effect to this ground of appeal.

(8) The commentary and interventions of the trial judge

[105] The appellant contends that he did not receive a fair trial because of the manner in which it was conducted by the trial judge. He has two principal complaints. First, the trial judge's use of "sarcastic, inflammatory and prejudicial language" in his charge to the jury caused the appellant prejudice by conveying the judge's view that the appellant's story was incredible and unworthy of belief. Second, the trial judge's hundreds of interventions and interjections created an unfair trial by suggesting that he had made up his mind about the facts or the appellant's credibility and by interfering with the defence's conduct of the case. Many examples of both complaints were provided by the appellant.

[106] The Crown's position is that the trial judge's language in the jury charge did not result in unfairness to the appellant, who [page110] took no objection to the judge's use of language. Indeed, defence counsel objected only to a few factual misstatements. The Crown points out that almost all of the colourful language complained about by the appellant tracked the rhetoric of both counsel in their closing arguments.

[107] As for the trial judge's interventions and interjections during the trial, the Crown submits that they were justified by the trial judge's "keen interest in ensuring that evidence was clarified and the trial kept fair, while ensuring that each side was able to place its case before the jury". The Crown analyzed a number of interventions during the cross-examination of several Crown witnesses and during the appellant's testimony in an attempt to illustrate that they did not prejudice the appellant or the presentation of his defence. While conceding that on a number of occasions it would have been preferable had the trial judge refrained from intervening and that on other occasions his comments were ill- chosen, the Crown submits that either individually or cumulatively, the trial judge's interjections did not undermine the fairness of the appellant's trial.

[108] In my view, the appellant was not prejudiced by the trial judge's use of language in his instructions to the jury. Although the number and quality of the trial judge's many interventions during the trial came close to crossing the line of compromising the fairness of the trial, in the final analysis I agree with the Crown that they did not create an unfair trial. In my view, some of the interventions can be justified on the basis that a trial judge is entitled to intervene to ensure that a trial is conducted properly and fairly and in accordance with the rules of evidence. Others are more troubling. Central to the adversary system is the concept that it is the lawyers who prepare and present the case before an independent decision-maker. As the case law illustrates, a decision-maker can easily compromise his or her independence by becoming involved in the conduct of the trial. I have no doubt that this experienced trial judge is aware of the case law. It creates substantial, unwarranted costs to the administration of justice when this court is required to order a new trial as a result of a trial judge's excessive and unnecessary interventions in the conduct of a trial. I came very close to doing so in this case, but in the end I am satisfied that the appellant was not deprived of a fair trial.

[109] I would not give effect to this ground of appeal.

(9) The jury charge on alternative verdicts

[110] In instructing the jury on the alternative verdicts available to it, the trial judge said that alternative verdicts were second [page111] degree murder and manslaughter. The position taken by defence counsel in his closing argument to the jury was that the accused should be found not guilty as he did not kill Haldas. He added:

That does not mean we're suggesting there is second degree murder or manslaughter. That is not the case, be sure that is made clear to you, that is our position. Our steadfast argument before you is that there is no evidence to support any conviction in relation to any indictment before you.

[111] When the subject of alternative verdicts was discussed at the pre-charge conference, the trial judge told counsel that he always included a charge on manslaughter unless both counsel agreed that it should not be put. The Crown asked that it not be included, while defence counsel said it should be part of the charge. There was no further discussion on the issue. After defence counsel concluded his argument to the jury, and in its presence, the trial judge asked defence counsel the following:

THE COURT: Thank you, Mr. Cohen. I may have misunderstood in the absence of the jury, but you take the position, undoubtedly, that the Crown has failed to prove that your client Mr. Marshall killed Mr. Haldas, haven't proved that beyond a reasonable doubt?

MR. COHEN: That is correct, your Lordship.

THE COURT: Okay. But did you want me to include the second degree murder and manslaughter as well to the jury?

MR. COHEN: I leave that to your Lordship's discretion.

[112] When the trial judge addressed the jury, he told its members that an alternative position taken by the appellant was that because "the person who killed Denis Haldas did so in a frenzied rage", that person lacked the requisite intent for murder and should be acquitted of second degree murder. Subsequently, he instructed the jury that "the defence concedes that it would be open to you to convict the accused . . . of manslaughter", but only if the Crown proved beyond a reasonable doubt that he had killed Haldas. The trial judge reiterated that it was the appellant's defence that he did not murder Haldas.

[113] Citing a line of authorities, the most recent being R. v. Diu (2000), 2000 4535 (ON CA), 49 O.R. (3d) 40, [2000] O.J. No. 1770, 144 C.C.C. (3d) 481 (C.A.), application for leave to appeal to S.C.C. abandoned [2000] S.C.C.A. No. 406, the appellant submits that the trial judge committed reversible error by telling the jury that the accused had asked for alternative theories to be placed before the jury when he had not done so. Relying on the following passage from the reasons for judgment of Sharpe J.A. in Diu at para. 167, the appellant contends that his defence was undermined by the trial judge's charge: [page112]

It 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.

(Emphasis in original)

In Diu, this court held that the trial judge had erred by telling the jury that the accused asked that the defence of provocation be considered.

[114] The Crown reluctantly agrees that it "may have been preferable" had the trial judge not made it appear that the appellant had requested the alternative verdict instruction or made submissions on the issue. However, the Crown argues that the appellant was not prejudiced because in his instructions the judge repeated a number of times that the appellant's position was that he was not the person who killed Haldas.

[115] In my view, this argument ignores the important principle that a trial judge has a duty to leave every defence to the jury for which the evidence provides an air of reality, even if it is not relied on by the accused; however, when the accused does not rely on a particular defence, it is incumbent on the trial judge to avoid telling the jury that the accused wanted the defence put to them: R. v. Peavoy (1997), 1997 3028 (ON CA), 34 O.R. (3d) 620, [1997] O.J. No. 2788, 117 C.C.C. (3d) 226 (C.A.); R. v. Tombran (2000), 2000 2688 (ON CA), 47 O.R. (3d) 182, [2000] O.J. No. 273, 142 C.C.C. (3d) 380 (C.A.), application for leave to appeal to S.C.C. dismissed [2000] S.C.C.A. No. 294; R. v. Diu, supra. It seems clear that in every case where a trial judge knowingly attributes an alternative contradictory defence to an accused person who has not relied on the defence, the trial judge has not only undermined the defence, he or she has misled the jury. Judges must not mislead juries. Although the trial judge did not have the benefit of Tombran or Diu when he instructed the jury, a similar admonition in Peavoy was available. [page113]

[116] In my view, the trial judge's instructions, like those in Diu, were in error. Whether effect should be given to this error depends on whether it is appropriate in the circumstances of this case to apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code.

[117] The appellant's defence was his denial. He denied killing Haldas and, for the most part, did not challenge the strong circumstantial case that the Crown had built. Thus, the issue is to measure the effect of the trial judge's erroneous attribution of the alternative defences to the appellant against the Crown's strong case and to decide whether, but for the trial judge's error, the verdict necessarily would have been the same.

[118] I have no difficulty in concluding that the verdict would have been the same notwithstanding the error. In presenting its overview of the case in its factum, the Crown summarized a number of factors to emphasize that were this court to find any errors in this trial, the jury would nevertheless have found that it was the appellant who murdered Haldas. These include:

-- the appellant had a strong motive to kill the deceased given his financial difficulties that arose in part from a debt he had guaranteed on behalf of the deceased and because the deceased had encroached on his drug territory while he was incarcerated;

-- the appellant's own admissions to police officers, on different occasions, that he had driven the jeep to Toronto with the deceased;

-- the appellant's possession of the jeep, with the deceased's blood on it, after the murder;

-- the presence of the deceased's blood in the garage of the appellant's friend, Ralph Mascoll, whom the appellant admitted calling after the murder because of unspecified concerns about the jeep;

-- the clear and compelling evidence that the deceased was killed in the jeep, in downtown Toronto, close to a restaurant where the appellant admitted being with the deceased shortly before the killing;

-- the totally unexplained presence of blood and the deceased's DNA on the appellant's cell phone, which he admittedly always carried on his right hip; and [page114]

-- the very compelling evidence of cell phone records which tracked the appellant's movement on the day of the murder, as well as after the murder.

Based on all of these factors, I am satisfied that the trial judge's error occasioned no substantial wrong or miscarriage of justice.

[119] For all the above reasons, I would dismiss the appeal.

Appeal dismissed.

Notes

Note 1: Moldaver J.A. there discussed the options available at trial when a party feels aggrieved by the failuer of the other side to observe the rule in Browne v. Dunn.