DATE: 20050218

DOCKET: C37352-C38334-C41192

COURT OF APPEAL FOR ONTARIO

DOHERTY, LASKIN and FELDMAN JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

• and -

JOHN JOSEPH OLIVER and DAVID ANTHONY MORRISON

Appellants

Counsel: Joseph Wilkinson for the appellant Oliver James C. Fleming for the appellant Morrison Susan Reid and Melissa Ragsdale for the respondent

Heard: January 12, 2005

On appeal from the convictions entered by Justice Donald S. Ferguson of the Superior Court of Justice, sitting with a jury, dated October 12, 2001 and the sentence imposed dated November 20, 2001.

DOHERTY J.A.:

I

Overview:

1The appellants were jointly charged with second degree murder. John Oliver (“Oliver”) was convicted of second degree murder and sentenced to life imprisonment without eligibility for parole for 12 years. David Morrison (“Morrison”) was convicted of manslaughter and sentenced to 4 years in addition to the 2 years pre-trial custody he had served.

2The deceased, Joseph Pace (“Mr. Pace”), a homeless person with physical and mental disabilities, died as a result of head trauma. It was the theory of the Crown that Oliver and Morrison, acting in concert, had accosted and beat Mr. Pace because he had been bothering Morrison’s girlfriend at the donut shop where she worked. The Crown took the position that Oliver and Morrison were guilty of murder as co-perpetrators or as aiders and abettors.

3Oliver did not testify. By the end of the trial, it was clear that Oliver had fought with Mr. Pace shortly before his death. Oliver advanced three defences:

• if Oliver caused Mr. Pace’s death, he did not have the intent required for murder under s. 229(a) and was guilty of manslaughter;

• even if Oliver had the intent required for murder, the defence of provocation reduced his liability to manslaughter; and

• the fatal blows were struck by Morrison after Oliver had left the scene and was returning to the donut shop. On this theory, Oliver was not guilty of anything.

4Morrison did testify. He testified that he and Oliver followed Mr. Pace out of the donut shop and that a confrontation occurred. Oliver and Mr. Pace exchanged insults and then began to fight. Morrison testified that he tried to break up the fight but was unable to do so. He left the scene to avoid getting hit and the fight between Oliver and Mr. Pace continued. On Morrison’s evidence, he was not a party to any assault that caused Mr. Pace’s death and was not guilty of either murder or manslaughter.

II

The nature of the appeals:

5Oliver appeals his conviction and sentence. Morrison initially appealed conviction and sentence, but has abandoned his sentence appeal.

6On his conviction appeal, Oliver raises three grounds. He contends that the trial judge erred in refusing an adjournment at the outset of the trial to allow counsel to bring an application to challenge prospective jurors for cause based on the nature of the offence. Oliver also contends that the trial judge erred in holding that the Criminal Code provision that gives persons charged with second degree murder fewer peremptory challenges than persons charged with first degree murder was not contrary to ss. 7 and 11(d) of the Charter. Finally, Oliver contends that in responding to a question from the jury, the trial judge failed to adequately review the evidence and relate that evidence to Oliver’s position.

7On his sentence appeal, Oliver contends that the factors identified by the trial judge as aggravating features did not warrant an increase in the period of parole ineligibility.

8Morrison’s grounds of appeal all arise out of the trial judge’s charge to the jury. Morrison submits that the trial judge improperly cautioned the jury with respect to accepting Morrison’s evidence and misstated the potential evidentiary value to Morrison of Oliver’s silence at trial. He also contends that the trial judge did not adequately review the evidence and relate it to Morrison’s position.

9I would dismiss the appeals. The trial judge had a discretion as to whether to grant an adjournment. There is no basis upon which to interfere with the exercise of that discretion. The different number of peremptory challenges allotted to those charged with first and second degree murder reflects the differing severity of the potential penalties for those offences and does not violate any Charter right. The charge to the jury was in most respects exemplary. While the trial judge’s caution concerning Morrison’s evidence raises some concern, I am satisfied that, considered in context, it did not constitute an error in law or render Morrison’s trial unfair. The sentence imposed on Oliver is not manifestly unreasonable and reveals no error in principle.

III

The facts:

10The appellants and their girlfriends were drinking at Oliver’s apartment during the evening of November 9, 1999. Shortly before 11:00 p.m., they all went to Pete’s Donuts, where Morrison’s girlfriend was scheduled to work the night shift beginning at 11:00 p.m.

11Mr. Pace, a smallish 44 year-old homeless man, was loitering outside of the donut shop when the appellants and their girlfriends arrived. Mr. Pace asked Morrison for a cigarette and Morrison gave him one. The appellants and Oliver’s girlfriend returned to Oliver’s apartment leaving Morrison’s girlfriend at the donut shop with Mr. Pace.

12Morrison’s girlfriend became nervous when Mr. Pace remained in the donut shop for quite some time. At one point, she became concerned that Mr. Pace had a weapon. She called Oliver’s apartment. Oliver, Morrison and Oliver’s girlfriend returned to the donut shop. Oliver offered to tell Mr. Pace to leave the donut shop, but Morrison’s girlfriend said that it was not necessary.

13Mr. Pace left shortly after Oliver and Morrison returned to the donut shop. After Mr. Pace had left, Oliver and Morrison went outside briefly. They returned to the donut shop, discarded their jackets, and then left in pursuit of Mr. Pace. They caught up to Mr. Pace a short distance from the donut shop. Words were exchanged between Mr. Pace and Oliver. Mr. Pace may have made a comment about the breasts of Morrison’s girlfriend. The verbal exchange quickly escalated to a physical confrontation. A short time later, Mr. Pace was found dead in a pedestrian tunnel near the donut shop. His face was disfigured and covered in blood. His shirt had been removed. There were abrasions over his right eye and both eyes were swollen. Post mortem examination disclosed five or six blows to the head and neck area, one fractured Mr. Pace’s larynx and another resulted in a subdural hemorrhage that caused his death. The medical experts could not say which blow caused his death, but did indicate that a subdural hemorrhage could be caused by a relatively minor blow such as a punch to the nose. Mr. Pace also had bruising on his chest and back and had suffered two broken ribs.

14After the assault on Mr. Pace, Oliver and Morrison returned to the donut shop. Oliver arrived a few minutes ahead of Morrison. Oliver had Mr. Pace’s blood on the upper and lower part of his overalls and on his boots. Morrison had Mr. Pace’s blood on the front of his golf shirt, his shorts, and his boots. Oliver had more blood on him than Morrison.

15Oliver told Morrison’s girlfriend that “they” had beat Mr. Pace “pretty good”. He indicated that Morrison held Mr. Pace while Oliver punched him and that both had kicked Mr. Pace while he was on the ground. Oliver told Morrison’s girlfriend that they left Mr. Pace shaking in the tunnel and that he did not think Mr. Pace would live. According to Morrison’s girlfriend, Oliver said, “I hope he dies. He deserves it.”

16Morrison was considerably more subdued upon his return to the donut shop. He remarked that Mr. Pace “didn’t deserve it”. He insisted, however, that an ambulance not be called. He was concerned that he would end up in jail for a long time. Oliver and Morrison left the donut shop and later telephoned Morrison’s girlfriend to caution her against telling anybody about the incident.

17Morrison testified that the incident started when Oliver suggested that they go talk to Mr. Pace about frightening his girlfriend. They caught up to Mr. Pace at an intersection and Oliver asked him why he was bothering Morrison’s girlfriend. Oliver and Mr. Pace then exchanged verbal insults and began pushing each other. They were standing in the middle of the intersection. Oliver pushed Mr. Pace down onto his backside. Mr. Pace got up and moved aggressively towards Oliver. They were at the entrance to the pedestrian tunnel where Mr. Pace’s body was eventually found. Oliver and Mr. Pace began to exchange punches. Oliver pulled Mr. Pace’s coat and shirt over his head.

18Morrison did not initially intervene. However, when he saw a lot of blood on Mr. Pace’s face, he decided to try and separate Oliver and Mr. Pace. Morrison stepped in between them, but Mr. Pace continued to try to kick Oliver and Oliver continued to try to hit Mr. Pace. Some of the blows landed on Morrison. Morrison testified that when he would restrain Oliver, he could not control Mr. Pace and when he would control Mr. Pace, he could not restrain Oliver. Morrison testified that he became frustrated in his efforts to stop the fight, walked away and left the pedestrian tunnel. He sat on the steps of a church near the intersection leading to the tunnel. Eventually, Oliver came over to the steps and suggested to Morrison that they return to the donut shop. Morrison told Oliver that he would find his own way back to the donut shop. He returned to the donut shop a few minutes after.

IV

Oliver’s Grounds of Appeal

(a) The refusal of the adjournment

19The trial judge heard pre-trial motions in March 2001. In the course of hearing those motions, counsel for Oliver indicated that he may bring an application to challenge prospective jurors for cause based on the nature of the alleged offence. By the nature of the offence, I take counsel to be referring to a senseless and brutal attack on a vulnerable person.

20To ensure the orderly progress of the trial, the trial judge decided to fix a schedule for the hearing of all pre-trial matters and to set a date for the commencement of the trial. On April 4, 2001, after considering counsel’s submissions and counsel’s schedules, the trial judge ordered:

The further motions contemplated by Oliver shall be heard commencing July 3. That date is peremptory for both accused. That whole week should be reserved by all counsel. If the motions are not completed that week they shall continue until they are completed and all counsel shall ensure they are available to continue even if they extend beyond July 6. Counsel should mark their calendars accordingly. If trial counsel cannot be available they should arrange now for other counsel to argue the motions. All motions contemplated by Oliver before the jury is selected must be brought that week.

The material of the applicants shall be delivered to the Crown and to me no later than June 11. The Crown’s responding material shall be delivered no later than June 25.

The trial shall commence September 10, 2001 [emphasis in original].

21Counsel does not suggest that the trial judge did not have the power to set the schedule or that it was unreasonable.

22The July deadline for the bringing of pre-trial motions by Oliver came and went without any indication from counsel for Oliver that he intended to bring any further pre-trial motions or that there was any need to vary the timetable set by the trial judge some three months earlier.

23On September 10, 2001, the date set the previous April for the commencement of the trial, trial counsel for Oliver advised the court that he proposed to bring an application for leave to challenge prospective jurors for cause based on the nature of the offence. Counsel had advised the Crown about two weeks earlier of his intention to bring the motion. There had been no prior notice given to the court.

24Trial counsel offered three excuses for not bringing the proposed motion within the timetable set several months earlier by the trial judge. First, he had not received Legal Aid funding to retain a consulting firm to prepare the evidentiary basis for the proposed motion until June. Second, there were “corporate problems” between the consulting firm and the individual employed by that firm who counsel intended to call as an expert witness on the motion. Third, the judgment of the Supreme Court of Canada in R. v. Find (2001), 2001 SCC 32, 154 C.C.C. (3d) 97, which addressed challenges for cause based on the nature of the offence had been released in May and somehow delayed counsel’s efforts to prepare the necessary material.

25As of September 10, counsel had some but not all of the material he proposed to rely on to challenge for cause available. He did not have his witness available. Counsel informed the trial judge:

I don’t have all of the material, but I would hope today that these matters would all be resolved. I know I can have – or I’m assured I can have the videos later today and, as I say, Ms. Corbin [the proposed expert], I hope, will be freed from whatever stricture she was under in terms of contractual obligations or commitments and would be free to complete some more documents, attach an affidavit to those documents in support, and to attend to give viva voce evidence. Realistically, I can’t see this happening, her attendance, that is for examination, for viva voce evidence happening before Wednesday or Thursday, and I would think Thursday would be a safer date. But this is, with the greatest of respect, an important issue and I apologize that it’s come before the court in this …

26The Crown opposed the adjournment request indicating that the court had established a timetable for pre-trial motions several months earlier to avoid delays in the progress of the trial after the jury panel had been summoned. Counsel’s proposed motion would defeat that purpose entirely. Crown counsel also pointed out that the motion would delay the commencement of the trial for some undetermined time period and that over 200 prospective jurors were in attendance anticipating the commencement of jury selection on September 10.

27The trial judge refused to delay the commencement of the trial to permit counsel to bring the proposed motion. The trial judge observed that although counsel had been working on the proposed motion since June, counsel had not requested any variation of the timetable set by the trial judge in April and had not even advised the Crown of the proposed motion until shortly before the scheduled trial date. The trial judge also observed that even as of September 10, the scheduled date for the commencement of the trial, counsel did not have all of the material necessary to bring the motion and did not have his witness available. Lastly, the trial judge noted, quite correctly, that if he permitted the defence to proceed with its motion, the Crown would no doubt need time to respond to the defence material, thus delaying the commencement of the trial for some unspecified period of time.

28Counsel for the appellant acknowledges that the refusal of the adjournment was an exercise of the trial judge’s discretion. He further accepts that this court can interfere with the exercise of that discretion only if it was exercised on an erroneous principle or if it resulted in a miscarriage of justice. Neither occurred here.

29Trial judges are charged with the responsibility of ensuring the orderly administration of criminal justice. This obligation includes setting schedules for the conduct of criminal trials. Counsel are expected to comply with the schedules set by the court. This is no less true in criminal matters than in civil matters. When, as some times happens, difficulties develop in meeting schedules, counsel are expected to bring those difficulties to the attention of the court and opposing counsel as soon as possible so that the court may amend the schedule, if deemed appropriate.

30Trial counsel did not meet the timetable set by the trial judge and offered no valid excuse for the failure to seek some variation of that timetable well before the scheduled trial date. In addition, even on the scheduled trial date, counsel was not in a position to bring the motion or even assure the trial court that he would have the necessary material and witness available in the immediate future. Even on the appeal, some 3 years after the trial, counsel did not offer any expert evidence to support the contention that the nature of the offence justified a challenge for cause. Finally, it is far from clear to me, based on the submissions made to the trial judge, that the proposed challenge for cause would have been allowed under the criteria set down in R. v. Find, supra.

31Trial counsel, in arguing that the trial judge should delay the commencement of the trial to allow him to bring the motion, stressed the importance of the proposed challenge for cause to his client’s fair trial rights. No doubt, the trial judge was concerned that Oliver have every reasonable opportunity to defend himself. The right of an accused to make full answer and defence does not, however, command that every adjournment request be granted. The interest of an accused in pursuing whatever avenue may assist in his defence does not trump all other interests engaged by the due administration of criminal justice. Counsel cannot expect that scheduling orders will be automatically amended whenever a proposed motion may offer some assistance to an accused in his or her defence. Counsel cannot simply ignore scheduling orders, offer an apology for the failure to comply with those orders, and expect that the orders will be amended because of the trial court’s understandable reluctance to visit counsel’s failure on the accused. In any event, counsel’s approach to the proposed motion to challenge for cause belies the contention that the motion had any real importance to his client.

32The trial judge’s decision to proceed with the trial as scheduled several months earlier was an entirely appropriate exercise of his discretion.

(b) The constitutionality of s. 634(2)

33Section 634(2) provides:

Subject to subsections (2.1) to (4), the prosecutor and the accused are each entitled to

(a) twenty peremptory challenges, where the accused is charged with high treason or first degree murder;

(b) twelve peremptory challenges, where the accused is charged with an offence, other than an offence mentioned in paragraph (a), for which the accused may be sentenced to imprisonment for a term exceeding five years; or

(c) four peremptory challenges, where the accused is charged with an offence that is not referred to in paragraph (a) or (b).

34For the purposes of determining the number of peremptory challenges available to an accused, s. 634(2) creates three categories of offences based on the severity of the potential penalty for the offence. The more severe the penalty, the greater the number of peremptory challenges.

35Counsel for Oliver submits that it is a principle of fundamental justice that all similarly situated accused are entitled to the same procedural protections. He contends that a person like Oliver, charged with second degree murder, is effectively facing the same charge as a person charged with first degree murder. Counsel submits that it is unconstitutional to give Oliver only 12 peremptory challenges, while the “similarly situated” accused charged with first degree murder receives 20 peremptory challenges.

36It is unclear to me that trial fairness for constitutional purposes can be assessed by a comparative analysis of the procedures available to one accused with the procedures available to another accused in a different proceeding. I would not want to be taken as accepting that different treatment of accused in entirely separate proceedings can be equated with different treatment of co-accused in the same proceeding. Even in the latter situation, different treatment does not necessarily mean that one accused is treated in a constitutionally unfair manner: R. v. Suzack and Pennett (2000), 141 C.C.C. (3d) 449 at 470-74 (Ont. C.A.); R. v. Rose (1998), 129 C.C.C. (3d) 449 at 491 (S.C.C.).

37I do not have to decide whether comparison with an accused in another proceeding is an appropriate measure of constitutional fairness. I would reject the appellant’s submission even if the premise of that submission is accepted. A person charged with second degree murder is simply not in the same position as a person charged with first degree murder. While both offences share the same core definition of murder found in s. 229(a), first degree murder is a more serious charge. The various definitions of first degree murder all contain some feature that makes first degree murder more blameworthy and morally culpable than second degree murder. The penalty for first degree murder, life imprisonment without eligibility for parole for 25 years, is a more severe penalty than the penalty for second degree murder, life imprisonment without eligibility for parole for at least 10, but not more than 25, years.

38I agree with the trial judge’s conclusion that Oliver is not “similarly situated” to a person charged with first degree murder. A person charged with first degree murder faces a more serious charge. The allocation of more peremptory challenges to that person is consistent with the scheme of s. 634(2) of the Criminal Code. The seriousness of the potential penalty is a valid basis upon which to distinguish between accused for the purposes of allocating peremptory challenges. The difference in the number of peremptory challenges allocated to Oliver and a person charged with first degree murder did not in any way affect the fairness of Oliver’s trial. Section 634(2) is constitutional.¹

(c) The trial judge’s review of the evidence and the position of Oliver pertaining to that evidence.

39In his factum, counsel contended that the trial judge erred in defining recklessness for the purposes of s. 229(a)(ii) of the Criminal Code, failed to review the evidence relevant to Oliver’s state of mind, and failed to relate that evidence to Oliver’s contention that he did not have the state of mind required for murder as defined in s. 229(a)(ii). In oral argument, counsel wisely abandoned the first submission in its entirety. He limited the second and third submissions to the contention that in responding to the jury’s question, the trial judge should have reviewed the evidence and related it to Oliver’s contention that he did not have the requisite intent required by s. 229(a)(ii). These reasons address the argument as framed in counsel’s oral submissions.

40After a lengthy deliberation, the jury posed the following question:

Clarification of excerpts of the Criminal Code on page 3 of Jury Aid, section 229(ii).²

41The trial judge canvassed with counsel how best to respond to the jury’s question. Counsel for Oliver did not suggest that the question called for a review of the evidence pertaining to Oliver’s state of mind.

42The trial judge recharged the jury on the elements of murder as defined in s. 229(a)(ii). He reminded them of the various parts of the evidence that could be relevant to their assessment of whether the Crown had proved each of the elements of the offence in s. 229(a)(ii). He did not review the content of that evidence in any detail. He did, however, conclude his recharge by listing for the jury some six areas of the evidence that were germane to their determination of whether Oliver had the requisite intent for murder.

43After the recharge was completed, counsel for Oliver for the first time argued that the trial judge should have more thoroughly reviewed the content of the evidence.

44I reject counsel’s contention that the recharge was inadequate. I think it was directly responsive to the jury’s question. The jury did not ask for a review of the evidence relevant to Oliver’s state of mind. As other questions posed by the jury demonstrate, where the jury wanted a review of the testimony relating to an issue, the jury made a specific request for a reading of that evidence.

45The trial judge reminded the jury in an evenhanded manner of the pertinent areas of the evidence. In doing so, he put his instructions as to the legal effect of s. 229(a)(ii) into the factual context of the evidence heard by the jury. There was no error in the recharge.

(d) Oliver’s sentence appeal

46Oliver received a sentence of life imprisonment without eligibility for parole for 12 years. Counsel contends that the trial judge erred in increasing the period of parole ineligibility from the 10 year minimum to 12 years.

47In concise and focused reasons for sentence, the trial judge referred to the following factors:

• Oliver’s age (31);

• Oliver’s attempts to come to grips with his alcoholism;

• Oliver’s extensive criminal record, which included several assault related convictions, none of which, however, merited a sentence in excess of seven months;

• the unprovoked brutal nature of the pursuit and assault of a particularly vulnerable victim;

• the absence of any concern for the victim’s well-being in the immediate aftermath of the assault and the absence of any remorse at any point in time; and

• the jury’s recommendation that Oliver should be eligible for parole after the minimum period of 10 years.

48In considering the jury’s recommendation, the trial judge observed that the jury did not have the benefit of the submissions on sentence that he had heard, and were unaware of Oliver’s criminal record.

49The trial judge’s reasons for sentence track the considerations outlined by s. 745.4 of the Criminal Code. As stated in R. v. Shropshire (1995), 102 C.C.C. (3d) 193 at paras. 29-31 (S.C.C.), there is no presumption that the minimum parole ineligibility period should be imposed absent unusual aggravating circumstances. Determination of the appropriate period of parole ineligibility requires the careful exercise of judicial discretion. This court will interfere with that exercise only if it reflects an error in principle or yields a result which is demonstrably unfit. The most that can be said in this case is that it would not have been unreasonable to impose the minimum period of parole ineligibility. That is not a basis upon which this court can interfere with the sentence imposed by the trial judge.

V

Morrison’s grounds of appeal:

(a) The “caution” in relation to Morrison’s evidence

50As indicated earlier, Morrison testified and Oliver did not testify. The trial judge began his instruction in respect of Morrison’s evidence by telling the jury that Morrison was not required to testify, but having chosen to do so, his evidence should be assessed “just like any other witness”. The trial judge had earlier outlined for the jury the various factors which should be considered in assessing the evidence of a witness.

51The next two paragraphs of the instruction contain the alleged error. The trial judge said:

Subject to any specific contrary instructions that I may give you, you may consider the testimony of Mr. Morrison to help you decide the case of Mr. Morrison and of Mr. Oliver. You do not consider that testimony only to help you decide the case of Mr. Morrison.

I would add this caution. Mr. Morrison has given testimony that tends to show that only Mr. Oliver was involved in any assault on Mr. Pace. You should consider that testimony with particular care because he may have been more concerned about protecting himself than about telling you the truth. Bear that in mind when you decide how much or little you can believe of or rely on what Mr. Morrison told you about Mr. Oliver’s involvement in deciding this case [emphasis added].

52Counsel for Morrison contends that the “caution” given by the trial judge was akin to the unsavoury witness caution commonly described as a “Vetrovec” warning. Counsel referred to several authorities that hold that the “Vetrovec” warning is inappropriate in respect of any defence witness much less the accused: see e.g. R. v. Hoilett (1991), 3 O.R. (3d) 449 at 451-2 (C.A.). These authorities rest on the principle that any suggestion that the evidence of the accused could be subject to special scrutiny because of his status as an accused undermines the presumption of innocence: see R. v. B.(L.) (1993), 82 C.C.C. (3d) 189 at 191 (Ont. C.A.).

53Crown counsel does not quarrel with the principle relied on by counsel for Morrison, but submits that the “caution” was not a “Vetrovec” warning, but was directed at the jury’s potential use of Morrison’s evidence to implicate Oliver. Crown counsel submits that the “caution” protected Oliver’s fair trial right without compromising Morrison’s equivalent right to a fair trial.

54Joint trials can raise special jury instruction problems, particularly where the co-accused advanced conflicting defences. The jury instruction must balance the sometimes competing rights to a fair trial of co-accused: R. v. Crawford (1995), 96 C.C.C. (3d) 481 (S.C.C.).

55While neither Morrison nor Oliver engaged in what is commonly described as a “cut throat” defence, they did not present an entirely common front. Oliver argued that Morrison may have inflicted the fatal blows after Oliver had left the scene of the assault. On Morrison’s testimony, Oliver was exclusively responsible for Mr. Pace’s death.

56The need to balance the fair trial rights of co-accused is a case-specific exercise. Morrison’s right to a fair trial included his right to have his testimony as it applied to him considered free of any suggestion that it was inherently suspect because of Morrison’s status as an accused. Oliver’s right to a fair trial included his right to have factors that could undermine the credibility of evidence implicating him brought to the attention of the jury. The respective and somewhat conflicting interests of Oliver and Morrison had to be balanced by the trial judge in his instructions to the jury.

57The impugned instruction achieved the appropriate balance.³ The trial judge told the jury that his “caution” should be borne in mind when considering Morrison’s evidence as it applied to Oliver’s involvement in the homicide. He immediately followed this “caution” with the classic reasonable doubt instruction from R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.). That instruction made it clear to the jury that when considering Morrison’s evidence as it related to the case against Morrison, the jury was required to acquit if that evidence alone, or in combination with other evidence, left them with a reasonable doubt.

58While I am satisfied that the trial judge did not err in his instruction, I would make two observations that may assist trial judges who encounter this problem in future cases. First, as the “caution” is justified exclusively as a protection of the co-accused’s fair trial rights, trial judges should canvass with counsel for the co-accused the need for any “caution” before instructing the jury. If counsel take the position that no “caution” is warranted, none should be given.

59In this case, the trial judge meticulously reviewed his jury instruction with counsel before delivering it. Unfortunately, this issue was not raised with counsel. On appeal, Oliver argued that he had nothing to gain from any “caution” in respect of Morrison’s evidence. Crown counsel takes a very different position, contending that Morrison’s evidence did significantly implicate Oliver. While I am inclined to think that counsel for Oliver would have welcomed the “caution”, it cannot be said with any certainty what position he would have taken had the matter been canvassed before the trial judge instructed the jury.

60The second point I would make is this. Where a trial judge determines that the fair trial rights of a co-accused require a “caution” with respect to the testimony of the other accused, the trial judge should expressly tell the jury that the caution applies only to the case against the co-accused and has no application when considering the case against the accused who has testified. While I am satisfied that this instruction had that effect, a more express limitation of the “caution” would have been preferable.

(b) The instruction on Oliver’s failure to testify

61Immediately after the instructions pertaining to Morrison’s evidence, the trial judge told the jury:

Mr. Oliver did not testify. Because of the presumption of innocence and the burden of proof, you cannot use his silence against him. You cannot use his silence as evidence of guilt. You cannot infer his guilt from his silence. You can only find him guilty if the Crown proves his guilt by the testimony of witnesses or by other evidence at this trial.

62Usually, a trial judge will avoid any reference to an accused’s failure to testify to avoid running afoul of the prohibition against commenting on the accused’s failure to testify found in s. 4(6) of the Canada Evidence Act. The trial judge gave the instructions set out above at the request of counsel for Oliver who contended that counsel for Morrison’s closing address dictated that the jury be told that Oliver’s silence at trial could not be used as evidence against him. Counsel for Morrison had argued in his closing address that Oliver’s failure to testify led to the “irresistible inference” that Oliver accepted everything that Morrison had said in his evidence.

63There can be no doubt after R. v. Noble (1997), 114 C.C.C. (3d) 385 (S.C.C.) that an accused’s silence cannot constitute evidence of his guilt. The challenged portion of the trial judge’s instructions did no more than tell the jury that they could not use Oliver’s silence to prove his guilt. This instruction was entirely consistent with the analysis in R. v. Noble, supra.

64Morrison’s real complaint is not with what the trial judge said, but with what he did not say. Morrison submits that the trial judge should have put the judicial stamp of approval on counsel for Morrison’s submission that Oliver’s failure to testify amounted to an adoption of the truth of the version of events given by Morrison in his testimony.

65An accused who testifies is entitled to ask a jury to consider the co-accused’s failure to testify when assessing the respective merits of the defences advanced by the two accused. The submission is particularly appropriate where the defences conflict: R. v. Naglik (1991), 65 C.C.C. (3d) 272 at 284-85 (Ont. C.A.), rev’d on other grounds (1993), 1993 64 (SCC), 83 C.C.C. (3d) 526 (S.C.C.).

66The argument made by counsel for Morrison at trial was not that Morrison was rendered more credible by Oliver’s silence, but rather that Oliver’s silence amounted to an adoption of the truth of Morrison’s testimony. This was a doubtful proposition at best. The trial judge left this submission made by counsel for Morrison with the jury without comment. His silence operated to the benefit of Morrison as in my view, he could well have told the jury that the submission went too far. The trial judge was not required to repeat, much less accept as correct, counsel’s submission concerning Oliver’s failure to testify. In refraining from commenting on the submission, he did not fall into legal error and certainly did not treat the submission unfairly.

(c) The trial judge’s review of the position of Morrison and the evidence relevant to that position

67Counsel contends that the trial judge did not adequately review Morrison’s testimony and relate it to his position that he was not a party to any assault on Mr. Pace, or alternatively that he was not a party to the assault that caused Mr. Pace’s death.

68As Morrison was convicted of manslaughter, I need consider only the instruction as it pertained to his liability for manslaughter. The trial judge correctly instructed the jury on the legal elements of the offence of manslaughter. He told the jury that it could convict Morrison of manslaughter only if the Crown proved that:

• Morrison was a party to an assault on Mr. Pace;

• the assault caused Mr. Pace’s death; and

• it was reasonably foreseeable that the assault would put Mr. Pace at risk of bodily harm.

69In instructing the jury on the first element, that is whether Morrison was a party to an assault on Mr. Pace, the trial judge referred the jury to some fourteen areas of the evidence that were potentially relevant to that issue. One of those areas was Morrison’s own testimony. The trial judge did not provide a detailed review of the evidence at this point in his instructions. He had, however, earlier in his instructions, reviewed in detail many of the areas of the evidence that he identified as relevant to the question of whether Morrison was a party to an assault on Mr. Pace.

70After his reference to the relevant areas of the evidence, the trial judge turned to the position of Morrison and the Crown on the question of whether Morrison was a party to the assault:

The position of the Crown is that Mr. Morrison was a party to the alleged assault because he and Mr. Oliver were acting in concert to murder Mr. Pace. The position of Mr. Morrison is that he was not a party to any assault, that he had only tried to prevent a fight and then left the scene.

71The trial judge’s instructions on the question of whether Morrison was a party to an assault on Mr. Pace were clear and fair. The legal correctness of those instructions is not challenged on appeal. The reference to the relevant areas of the evidence was thorough and, in my view, probably more effective than a prolonged regurgitation of the details of the evidence. The respective positions of the Crown and Morrison were set out in a balanced and accurate manner.

72In his oral submissions on this ground of appeal, counsel focused on one passage from the trial judge’s instructions. The passage related to the question of causation, the second element that the Crown had to prove to establish manslaughter. The trial judge told the jury:

I point out that if you find that both accused were parties to a minor assault on Mr. Pace and then one accused left and the other carried out a further assault which caused death, the accused who left could not be found guilty of anything because element two of the second degree murder and, as we will see, of manslaughter, would not be proved. The accused who left would not have been a party to the assault which caused death.

73Counsel argues that the trial judge should have followed up this correct statement of the law with a review of Morrison’s evidence. I have difficulty following this submission. It was not Morrison’s evidence that he was party to a minor assault on Mr. Pace and then left the scene. That was a position advanced by Oliver’s counsel in his closing address. It could not have helped Morrison or more importantly, assisted the jury to connect Morrison’s evidence to a legal proposition that was inconsistent with his evidence.

74I need not review the trial judge’s instructions on the second and third elements of the offence of manslaughter. Like his charge on the question of whether Morrison was a party to an assault on Mr. Pace, these parts of the charge were thorough, balanced and well organized. I would add that the third element, the objective foreseeability of the risk of bodily harm to Mr. Pace, was a virtual non-issue in this case.

VI

Conclusion:

75I would dismiss the appeals.

Footnotes

1. 1The reasons of the trial judge on this point can be found at [2001] O.J. No. 5984. To the same effect, see the reasons of Trafford J. in R. v. Bellas, [2002] O.J. No. 5372 (S.C.J.).
2. 2The trial judge had provided copies of the relevant Criminal Code provisions to the jury as well as a written summary of the elements of the offences of murder and manslaughter.
3. 3The instruction was taken from final instruction 24-C in D. Watt, Ontario Specimen Jury Instructions (Criminal) (Scarborough: Carswell, 2002) at 135.