COURT OF APPEAL FOR ONTARIO
MacFarland and Epstein JJ.A., and Glithero R.S.J. (ad hoc)
BETWEEN:
Her Majesty The Queen
Respondent
and
Michael Gordon McCarroll
Appellant
Philip Campbell and Michael Dineen, for the appellant
John S. McInnes, for the respondent
Heard: April 29 and 30, 2008
On appeal from the conviction entered December 14, 2005, by Justice John R. McIsaac of the Superior Court of Justice, sitting with a jury.
A. INTRODUCTION
1The appellant was convicted by a jury of second-degree murder as a result of the death of Rahim Prebtani. Mr. Prebtani was repeatedly struck in the head by a baseball bat and died from blunt force injury to his brain. This senseless attack took place early in the morning on October 20, 2002, outside the Riverboat Inn in Wasaga Beach.
2Prebtani, Kirupakaran Sivasubramaniam, Kenny Baggan, (the “Toronto group”) and three women made the trip to Wasaga Beach for a weekend getaway. At some point in the evening of October 19, 2002, the group arrived at a bar at the Riverboat Inn, a complex of three businesses that also included a motel and a restaurant. The appellant was at the bar with two of his friends, James Smith and Smith’s girlfriend, Chassidy Kidd (the “Smith group”). The evening was a volatile one for Smith and Kidd who argued off and on throughout the evening. However, the two groups engaged in friendly conversation.
3The Smith group left the bar. The Toronto men followed and came upon what they believed to be the aftermath of a dispute between Smith and Kidd that had left Kidd on the ground clutching her stomach. The Toronto men assumed Smith had assaulted his girlfriend and they confronted him. This led to an altercation between the two groups at the end of which Prebtani lay in a ditch, dying from multiple blows to his head.
4The jury found the appellant guilty of second-degree murder. The judge imposed the mandatory sentence of imprisonment for life and fixed the parole ineligibility period at thirteen years.
5The appellant appeals from his conviction. He raises a number of grounds, all relating to the trial judge’s final instructions to the jury. The appellant claims that the trial judge erred by:
(a) wrongly instructing the jury that they could use Kidd’s videotaped statement to the police for the truth of its contents;
(b) providing a flawed Vetrovec caution that (i) failed to include an important Crown witness, and; (ii) used examples of confirmatory evidence that could not corroborate the witnesses subject to the warning;
(c) finding that there was no air of reality to the defence that the appellant was deprived of the intent to kill by reason of his intoxication, and by failing, in his charge, to relate the relevant evidence to the issue of intent; and
(d) failing to give a corrective instruction concerning the Crown’s unfair treatment of important exculpatory evidence.
6For the following reasons I would allow the appeal and remit the matter back for a new trial.
B. FACTS
7The primary issue at trial was identification. Among those involved in the melee that night, who killed Prebtani? The Crown called six witnesses who gave evidence as to their observations about the events that lead to Prebtani’s death. Two contradictory narratives emerged. One identified Smith as the killer; the other identified the appellant.
The version of events advanced by the Crown
8The Crown’s case largely depended on the evidence of four witnesses in the Smith group – Kidd, Mike Verschaeve, a friend of Smith’s who lived at the Riverboat Inn at the time, Verschaeve’s son Drew, and Smith himself. These witnesses claimed that the three men from Toronto were the aggressors in the fight and that they jointly attacked Smith, knocking him to the ground and kicking him while he lay prone.
9According to Smith, he became engaged in a three-on-one fight with the Toronto group in which the men armed themselves with a broken beer bottle and a pylon. Smith’s evidence was that during the altercation he got on top of Sivasubramaniam while the other two men in the Toronto group kicked and stomped on him. At this point Smith warned Sivasubramaniam that he would “bite [his] fuckin’ eye out” if Sivasubramaniam did not call his friends off. Smith then proceeded to bite Sivasubramaniam’s eye, causing it to bleed.
10Kidd was present when the fight began. Kidd said she screamed to the appellant for help when Smith was being assaulted, then ran into the Riverboat and asked the bartender, Christine Cabral, to call 911.
11At some point Mike Verschaeve brought a baseball bat to the scene. His evidence was that Drew woke him and told him that Smith was being attacked by three men. He testified that his son suggested they intervene and take a baseball bat with them.
12Verschaeve testified that he came outside with the bat and banged it on a railing causing the Toronto men to stop their attack on Smith. His evidence, supported by Smith, was that the appellant then took the bat from him and pursued the Toronto men.
13Drew testified that he looked out the window after his father left with the bat and saw the appellant and Smith chasing the three Toronto men. Drew said the appellant was carrying the bat as he ran.
14Verschaeve and Smith were the only two witnesses who testified that they saw the appellant fatally beat Prebtani.
15According to Verschaeve he saw Smith catch up to Prebtani, who had fallen in a ditch at the side of the road. Smith kicked him. The appellant then arrived and, with the baseball bat, delivered six to eight blows to the victim’s head. Verschaeve claimed to have screamed at the appellant to stop. The appellant paused and then stuck Prebtani again.
16Smith testified that when he found Prebtani lying in the ditch, he stepped on his head. At that instant he felt a blow to his ankle and saw the appellant standing next to him with the bat. He tried to convince the appellant to stop but he continued to strike Prebtani. According to Smith, he eventually managed to pull the appellant away.
17Drew testified that he did not see the attack on Prebtani as his view was blocked by a bush. He said his father was behind the bush with Smith and the appellant. He heard some “stomping” noises and Smith say “Mike stop” and his father say “stop”.
18Cabral testified that she heard Kidd yell that her boyfriend had been jumped by four guys. Cabral said that she went outside and saw Smith coming up the road, limping. The appellant, carrying a baseball bat, followed a few paces behind.
The appellant’s version of events
19The appellant, who did not testify on his own behalf, relied primarily on the evidence of Sivasubramaniam, supported to some extent by Baggan, to the effect that Smith was the one who killed Prebtani.
20Both Sivasubramaniam and Baggan testified that they left the bar with Prebtani and saw Smith standing over Kidd, who was lying on the ground. The three men confronted Smith and an argument ensued. At some point Baggan left the group to return to the cottage where the Toronto group was staying.
21Sivasubramaniam’s evidence was that during the argument, Smith, the aggressor, head butted him. The two men began to fight and fell to the ground. Smith grabbed Sivasubramaniam’s head and bit him in the left eye, causing severe injury.
22When Sivasubramaniam stood up, he saw that Mike Verschaeve had a baseball bat in his hands. According to Sivasubramaniam and contrary to the version of events advanced by the Crown, Smith was the man who grabbed the bat from Verschaeve and began to chase him. Sivasubramaniam yelled out for his friends to run when he saw Smith take the bat. He then turned and began to run toward the cottage.
23Sivasubramaniam testified that he did not see the appellant at any time after his fight with Smith began.
24Sivasubramaniam did not realize that Prebtani had been left behind until he caught up to Baggan on the way to the cottage. They went to the cottage, armed themselves with a knife, and returned to the scene with two other friends only to discover Prebtani by the side of the road, critically injured. They put him in their car and as they drove for help they passed Smith, Kidd and the appellant along the side of the road.
25Three independent witnesses, who saw the Smith group on the road, testified that the appellant was behaving in a belligerent fashion.
26Prebtani was taken to the hospital. He died four days later.
The Aftermath
27The police found a pylon and a broken beer bottle in the area where the fight took place. They also found the bat in a yard between the tavern and Smith’s house.
28Smith, who broke a bone in his ankle that evening, was arrested for having taken part in the altercation. During his incarceration he told a private investigator:
Mike McCarroll didn’t do nothing. He didn’t touch the guy with anything. I had the bat. Mike Verschaeve came down from his apartment upstairs. He just held the bat out and I just took it. …. The same guy I was having a fight with, there was three of them, I just chased the guy down the street. It seemed to me he was on the ground and I just started hitting him around the head.
29Smith took the position that this was a false confession that he was pressured to provide. He later pled guilty to the charge of manslaughter.
C. THE ISSUES ON THE APPEAL
(a) The use of Kidd’s videotaped statement for the truth of its contents
30The day after Prebtani’s death, Kidd spoke to the police and denied having any relevant knowledge of the evening’s events. Two days later she provided a videotaped statement in which she said she saw the appellant take the bat from Verschaeve and discard it after the attack. In her evidence at the preliminary inquiry Kidd said that she did not know who took the bat from Verschaeve – she just saw “hands” take it. She was, however, consistent in her position that the appellant was the one who discarded the bat after the fight was over.
31At trial, Kidd claimed to remember only parts of the events of the night Prebtani was killed. She remembered that one of the guys from the Toronto group offered her some beer. She remembered being so “extremely drunk” she had difficulty walking. She remembered the beginning of the fight and calling for help but then experienced a series of black-outs during which events took place that she was no longer able to recall.
32Significantly, Kidd denied having any memory of the appellant’s having taken the bat from Verschaeve or having thrown the bat away.
33The Crown, after successfully applying under s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5, to cross-examine Kidd on these points, put to Kidd portions of her statement to the police and her preliminary inquiry testimony. This lead to the following exchange:
Q: Would you agree with me that in making those statements, there was really no doubt in your mind that it was Mike McCarroll that threw the bat?
A: I’m not sure. I don’t remember the preliminary hearing. I don’t remember what I was thinking. I don’t remember anything that happened then.
Q: Were you telling the truth at the preliminary hearing?
A: Yes.
Q: And do you have any reason to think that you weren’t telling the truth when in answer to the question: Could you tell whether Mike McCarroll was carrying anything? You answer: No, I seen him throw the bat afterwards. There’s no doubt about what you meant there, is there?
A: No.
Q: It means you saw Mike McCarroll throw the bat afterwards, right?
A: If that’s what I said, then yes. I was telling the truth through my whole statement. [Emphasis added.]
34In a mid-trial instruction immediately following this evidence, the trial judge instructed the jury that prior inconsistent statements are only relevant to the credibility of the witness, saying “you can only use the testimony given under oath in this trial as evidence of what actually happened. You cannot use the earlier statement as evidence of what actually happened unless you are satisfied that the witness accepted it as true while in the witness box.”
35Kidd was played portions of her video statement to refresh her memory. It did not have that effect. When showed the video, she still did not remember the events described.
36The Crown did not follow any particular procedure or advance any particular basis to have Kidd’s videotaped statement to the police admitted into evidence for the truth of its contents. However, in closing argument, he did suggest that the jury should accept the contents of what Kidd said in her statement:
… You saw some of that evidence when the videotape or portions of it were put to her. And you had an opportunity then to see her demeanour and how she was openly responsive on the video. How she appeared to reach in the video into her memory and answer the question. I suggest that when you consider her demeanour on the video and the circumstances in which it was made, you can conclude as she testified here, that she was telling the truth then.
I further suggest that portions of her video statement she adopted are reliable because they were given when her memories were fresh in her head and they were given against the interest that she was going to, or trying to protect or at least inclined to protect at the time. [Emphasis added]
37Based on the following portions of the charge, the trial judge treated the matter in the same fashion when he instructed the jury as follows:
The evidence of the finding of the baseball bat in the garden of Stella Zelchyk could support the evidence of both Chastity (sic) Kidd and James Smith because they testified that Mike McCarroll threw it away as they were proceeding down River Road after the incident.
In that regard, you will recall the evidence of Chastity (sic) Kidd that she has no present memory of that event, but having seen her previous videotaped statement, she confirmed or adopted that it must have been the truth because she said it to the police in the circumstances that she did. [Emphasis added.]
Did Kidd adopt her previous statement?
38I agree with the appellant’s argument that the trial judge erred in instructing the jury that Kidd adopted the contents of her prior statement given she had no present recollection of the events it described.
39Where a witness adopts a prior statement as true, the statement becomes part of that witness’ evidence at trial and is admissible for its truth: R. v. Deacon (1947), 1947 CanLII 38 (SCC), 89 C.C.C. 1 (S.C.C.), at p. 4. The question becomes whether the witness adopts the prior statement “as being the truth as she now sees it”: R. v. McInroy (1979), 1978 CanLII 175 (SCC), 42 C.C.C. (2d) 481, at p. 498. As this court said in R. v. Toten (1993), 1993 CanLII 3427 (ON CA), 83 C.C.C. (3d) 5 (C.A.), at p. 23, in order for a prior statement to be incorporated into trial testimony, or ‘adopted’:
The witness must be able to attest to the accuracy of the statement based on their present memory of the facts referred to in that statement. In this sense, adoption refers to both the witness’s acknowledgment that he or she made the prior statement and the witness’s assertion that his or her memory while testifying accords with the contents of the prior statement.
See R. v. Tat (1997) 1997 CanLII 2234 (ON CA), 117 C.C.C. (3d) 481 (Ont. C.A.), at para. 28, and R. v. Atikian (1990) 1990 CanLII 6670 (ON CA), 62 C.C.C. (3d) 357 (Ont. C.A.), at p. 364.
40The determination of whether the witness adopts all or part of the statement must be made by the trier of fact, in this instance, the jury. However, as a condition of admissibility the trial judge must be satisfied that there is an evidentiary basis on which the trier of fact could conclude that the witness adopted the statement. The witness must acknowledge having made the statement and, based on present memory of the events referred to in the statement, verify the accuracy of its contents.
41Kidd did acknowledge having made the statement and did say that she was likely telling the truth when she made it. However, given her selective memory of the events surrounding Prebtani’s death, Kidd was, at best, only able to vouch for the accuracy of the statement based on circumstances surrounding its recording. She could not continue to assert the truth of its contents: see Toten at p. 24.
42The trial judge committed two errors by directing the jury that Kidd had adopted her statement. First, there was no evidentiary basis for that conclusion. Adoption was simply not possible in these circumstances. Second, even if there was an evidentiary basis, it was a matter for the jury to decide whether or not Kidd adopted what she said in her interview with the police as part of her trial testimony and imprinted it with her trial oath. The trial judge usurped a function that was within the exclusive purview of the jury.
43On appeal, the Crown advanced three arguments that were not advanced at trial. First, what Kidd said was tantamount to adoption. Second, the statements could have been admitted under the hearsay exception for past recollections recorded. Third, under the principled approach to the admission of hearsay evidence the statement would have been admitted.
44Before this court, the Crown submits that under an expanded notion of the concept of adoption, the portions of the videotaped statement were properly before the jury for the truth of their contents.
45Relying on R. v. C.C.F. (1997) 1997 CanLII 306 (SCC), 120 C.C.C. (3d) 225 (S.C.C.), the Crown argues that the application of the principled approach in cases involving prior videotaped statements where the witness is available for cross-examination has substantially modified the orthodoxy of the traditional cases.
46While the principled approach to the law of evidence continues to cultivate changes in how the court receives evidence, particularly in relation to the reception of hearsay, I do not accept the Crown’s submission that these changes have eliminated the need for an adult witness to have some recollection of the events contained in the statement.
47At issue in C.C.F. were the requirements for the admissibility of a videotaped statement under s. 715.1 of the Criminal Code, R.S.C. 1985, c. C-46, a statutory exception to the hearsay rule that permits an out-of-court statement to be admitted at the trials of certain enumerated offences if the complainant is a child under the age of eighteen and if the video was made within a reasonable time following the alleged offences. The court held that the word “adopts” in s. 715.1 should be given a meaning that advances the dual purposes of the section; to create a record of what is likely to be the witness’ best recollection of the events and to reduce the harm to a child of further participation in court proceedings.
48To this end the legislators incorporated several factors into the section to provide the requisite reliability that traditionally comes from the witness’ adopting the statement under oath. First, the statement must be made at a time reasonably proximate to the events in issue. Second, the statement must describe the acts complained of. Third, the child must be given the opportunity to attest to the fact that he or she was trying to tell the truth when the statement was recorded. As made clear in C.C.F., the fact that a child does not have a present memory of the events described is not a barrier to the admission of the statement. In such circumstances, the trier of fact must have an opportunity to watch the entire videotaped statement – providing an opportunity to judge the child’s demeanour.
49The decision in C.C.F. does not affect the law as it applies to the adoption of out-of-court statements of adults. Quite the opposite. It reinforces the importance of adopting a statement under oath. Cory J. for the court makes it very clear that the traditional tests for adoption still apply outside the s. 715.1 context – the guarantees of reliability built into s. 715.1 make the strict adoption test unnecessary in relation to the evidence of children: see C.C.F at para. 40.
50Second, on appeal the Crown further argued that Kidd’s evidence in this respect was properly before the jury under the hearsay exception for a past recollection recorded or under the principled approach to hearsay.
51In R. v. Khelawon (2006), 2006 SCC 57, 215 C.C.C. (3d) 161, Charron J. emphasized that notwithstanding the introduction of the principled approach to the admission of hearsay, the traditional exceptions remain presumptively in place, and should be considered by a court faced with hearsay evidence. Accordingly, I first turn to the Crown’s argument that the evidence was admissible for its truth under the traditional hearsay exception for a past recollection recorded.
52In R. v. Richardson (2003) 2003 CanLII 3896 (ON CA), 174 O.A.C. 390 (C.A.) leave to appeal refused [2004] S.C.C.A. No. 330, at para. 24, O’Connor A.C.J.O., detailed the essential conditions for admissibility under this exception as follows:
Reliable record: The past recollections must be recorded in a reliable way. This requirement can be broken down into two separate considerations: First, it requires the witness to have prepared the record personally, or to have reviewed it for accuracy if someone else prepared it. Second, the original record must be used it if is available.
Timeliness: The record must have been made or reviewed within a reasonable time, while the event was sufficiently fresh in the witness’s mind to be vivid and likely accurate.
Absence of memory: At the time the witness testifies, he or she must have no memory of the recorded events.
Present voucher as to accuracy: The witness, although having no memory of the recorded events, must vouch for the accuracy of the assertions in the record; in other words, the witness must be able to say that he or she was being truthful at the time the assertions were recorded.
53In Richardson, the past recollection recorded was properly admitted because it was “apparent that the trial judge accepted [the witness’] memory loss as genuine”: at para. 29. The problem the Crown faces is that here the trial judge believed that Kidd was being untruthful about her memory lapses. In his instructions to the jury, he expressed his view that Kidd was “obviously lying when she said she could not recall events that would be etched in anyone’s memory for life”.
54On this record, admitting the evidence under the exception for a past recollection recorded was not open to the Crown.
55Third, the Crown, relying on the well-known case of R. v B. (K.G.) (1993), 1993 CanLII 116 (SCC), 79 C.C.C. (3d) 257, submits that these portions of Kidd’s videotaped statement to the police were substantively admissible under the principled hearsay exception. K.G.B. establishes that evidence of a witness’ prior inconsistent statement may be substantively admissible where the criteria of necessity and reliability are satisfied.
56Again, the Crown faces several problems in trying to advance this argument.
57The Crown would have had considerable difficulty satisfying the threshold necessity and reliability requirements on a voir dire. Necessity might have been established given the difficulties associated with Kidd’s memory. However, problems present themselves in terms of the reliability requirement in light of the evidence of Kidd’s intoxication, her admitted unreliability as an observer, her powerful motive to lie to protect her boyfriend and her admission that she lied when she made her first statement to the police
58In any event, the Crown made no attempt to embark upon the process necessary for the admission of the evidence on this basis.
59Given the problems the Crown would have had trying to get this evidence properly before the jury through another route and what these other approaches would have entailed procedurally, I am unable to find that the impugned portion of Kidd’s statement to the police would inevitably had been admitted into evidence.
60This error caused significant prejudice to the appellant. The jury had before it untested evidence that was potentially powerful for the prosecution. Kidd’s prior videotaped statement to the police put the bat into the appellant’s hands. This is significant for two reasons. First, the central issue was who wielded the bat that delivered the fatal blows to Prebtani. Second, the contents of the statement were capable of confirming the evidence of Smith and Verschaeve thereby adding credibility to two otherwise suspect witnesses.
61The trial judge erred in permitting the jury to rely on Kidd’s out-of-court statement for the truth of its contents. Standing alone, this improper admission is reversible error necessitating a new trial.
(b) The Vetrovec Warning
62Due to the inherent untrustworthiness of the evidence of those who comprised the Crown witnesses, the need to give a warning in accordance with R. v. Vetrovec (1982), 1982 CanLII 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.), was clear.
63The appellant submits that the trial judge’s decision not to include Cabral in the group of witnesses subject to the warning was one of two errors the trial judge committed in the portion of his charge relating to the Vetrovec warning. The other is that certain examples given of potentially confirmatory evidence were not capable of serving that purpose.
Whether Cabral should have been included in the Vetrovec warning
64In the pre-charge conference the defence argued that the witnesses who should be subject to the warning should include Cabral. She had a criminal record including crimes of dishonesty and was on probation for fraud at the time of the trial. Most significantly, she admitted to having perjured herself during the trial. The trial judge ruled that he would give a “forceful warning” in relation to the testimony of Smith, Verschaeve, Drew and Kidd. He made no mention of Christine Cabral in his ruling. I do not, therefore, have the benefit of the trial judge’s reasons as to why he decided not to include Cabral in the list.
65The Crown contends that the trial judge acted within his broad discretion in refusing to give the Vetrovec warning in relation to Cabral’s evidence. He submits that Cabral’s criminal record was minimal. And the lie she admitted to having told during the course of her trial testimony, about a matter not germane to the events in issue, was nothing more than an effort to cover something up that was particularly embarrassing. It was “hopeless and impulsive” and was immediately admitted when exposed.
66In R. v. Brooks (2000), 2000 SCC 11, 141 C.C.C. (3d) 321 (S.C.C.), at para. 80, Major J. writing for the majority on this issue, identified the two main factors to be considered in determining whether a Vetrovec warning is necessary:
In summary, two main factors are relevant when deciding whether a Vetrovec warning is necessary: the witness’s credibility, and the importance of the witness’s testimony to the Crown’s case. No specific threshold need be met on either factor before a warning becomes necessary. Instead, where the witness is absolutely essential to the Crown’s case, more moderate credibility problems will warrant a warning. Where the witness has overwhelming credibility problems, a warning may be necessary even if the Crown’s case is a strong one without the witness’s evidence. In short, the factors should not be looked to independently of one another but in combination.
67Applying the factors set out in Brooks, the trial judge should have provided the jury with a Vetrovec warning in relation to Cabral’s evidence. Her evidence suffered from serious credibility problems and was important to the prosecution’s case.
68Cabral’s evidence was inherently suspect.
69Cabral admitted to lying under oath during her testimony. Her fraud conviction was in relation to the theft of a Visa card. During cross-examination Cabral was asked whose Visa card she stole. She replied that she did not know. Later she conceded that she had lied to the court and that the stolen card belonged to her grandfather. I disagree with the Crown’s submissions the consequences of this lie should be discounted. Cabral told a direct lie to the jury in a situation where a man’s liberty was at stake. In such circumstances, lying under oath must always be taken seriously.
70Cabral was also asked about whether she served alcohol to Kidd. She said she did not. Every witness asked about this, including Kidd herself, testified to the contrary.
71Furthermore, Cabral admitted to having been less than truthful in the course of her first statement to the police.
72I also note that Cabral testified that she was unaware of Prebtani’s death until the preliminary hearing in this matter, something that is very difficult to believe.
73I do not accept the Crown’s submission that the standard portions of the trial judge’s instructions were sufficient to alert the jury to the need to approach Cabral’s evidence with the requisite degree of caution. The charge was relatively brief and in the portions concerning the use the jury could make of criminal convictions and inconsistencies in a witness’ testimony, the trial judge did not advert to Cabral or her evidence. While it is not incumbent upon a trial judge to detail all of the inconsistencies arising from a witness’s testimony, I am of the view that in so far as Cabral is concerned, there were ample reasons to put the jury on notice about Cabral’s credibility problems.
74This was not done.
75As for the importance of Cabral’s evidence to the Crown’s case, while she was not involved in the altercation itself, her evidence was potentially powerful for two reasons. First, she was one of the only witnesses not closely associated with either the Toronto or the Smith group. Second, as submitted by the Crown during closing argument, she was an “important witness because she confirmed the extended confrontation before the murder. She describes [the appellant] as leaving the scene with the murder weapon.”
76As made clear in Brooks, the decision to give a Vetrovec warning falls within the broad discretion of the trial judge. “Provided there is a foundation for the trial judge’s exercise of discretion, appellate courts should not interfere” with the trial judge’s decision: Brooks at para. 4. After considering the factors identified in Brooks and without the benefit of the trial judge’s reasons for deciding not to include Cabral, I cannot find such a foundation in this case.
77Accordingly, having regard to the particular circumstances of this case, namely that this “important” witness stood alone as a beacon - the only Crown eye witness who was not the subject of the Vetrovec caution – coupled with the fact that Cabral had little regard for telling the truth, the jury should have been given a sharp warning about the inherent dangers of Cabral’s evidence and the risk of accepting it without supporting evidence.
78The failure of the trial judge to provide the jury with a Vetrovec warning in relation to Cabral’s evidence constituted reversible error.
The Adequacy of the Confirmatory Evidence
79In the Vetrovec portion of his charge, the trial judge reviewed for the jurors the disreputable nature of the character of Smith, Kidd, Verschaeve and Drew. He told them that they needed to find some confirmatory evidence tending to persuade them that they were telling the truth, before they could rely on their evidence.
80The trial judge illustrated for the jurors the type of evidence that they might find to be corroborative of the evidence of some of these witnesses:
The evidence of the injuries suffered by Rahim Prebtani could confirm the evidence of both Michael Verschaeve and James Smith as to how he met his death at the hands of Mike McCarroll wielding the baseball bat.
The evidence of James Smith’s broken ankle could confirm the evidence of both he and Michael Verschaeve, that Mike McCarroll was responsible for the death of Rahim Prebtani.
The evidence of the finding of the baseball bat in the garden of Stella Zelchyk could support the evidence of both Chastity (sic) Kidd and James Smith because they testified that Mike McCarroll threw it away as they were proceeding down River Road after the incident.
81The appellant submits that none of these examples qualify as potentially confirmatory evidence. They are simply background elements of the case and can serve no confirmatory function.
82I disagree.
83The appellant’s submissions fall into the reasoning error Fish J. identified in R. v. Kehler (2004), 2004 SCC 11, 181 C.C.C. (3d) 1 (S.C.C.). Kehler had been charged with robbery. A Crown witness, Greenwood, who had a lengthy record for crimes of dishonesty and admitted lying to the police, testified that Kehler committed the robbery with him. Greenwood gave evidence about matters that only a participant in the robbery would be capable of knowing. This evidence did not directly implicate Kehler.
84The trial judge instructed himself about the need for caution in assessing Greenwood’s testimony. However, he found that his evidence of the details of the robbery corroborated his testimony and bolstered his credibility. The Alberta Court of Appeal agreed with the trial judge’s treatment of Greenwood’s evidence finding that although the evidence upon which the trial judge relied as being corroborative did not directly implicate Kehler, it “was capable of inducing a rational belief in the veracity of the impugned witness”: Kehler at para. 28. This reasoning was accepted by the Supreme Court of Canada. Fish J. for the court, held that confirmatory evidence should be capable of restoring the trier’s faith in relevant aspects of the witness’s account, but need not implicate the accused where the only disputed issue is whether the accused was a participant in the crimes alleged.
85The question to be answered is whether the evidence the trial judge put to the jury as being potentially confirmatory of the Crown witnesses was capable of restoring the trier’s faith in the credibility of Smith and Verschaeve.
86In my view, it was.
87The jurors had the benefit of independent expert evidence concerning the cause of Prebtani’s death. Smith’s and Verschaeve’s knowledge of the blows to Prebtani’s head was clearly not probative of whether the appellant was the person who delivered the blows. That said, it was within the discretion of the trial judge to instruct the jury that it was open to them to consider that knowledge in assessing the strength of other relevant parts of Smith’s and Verschaeve’s evidence. I would not interfere with the exercise of the trial judge’s discretion in this respect.
88The same can be said in relation to evidence that Smith suffered a broken ankle on the night in question. Smith testified that he suffered a broken ankle when he intervened in the appellant’s attack on Prebtani. The defence argued that Smith hit himself as he straddled Prebtani, wielding the bat. The independent evidence of the break was properly put to the jury as being available to them in assessing the evidence of Smith and Verschaeve.
89Similarly, the fact that the baseball bat was found near Smith’s home is an independent piece of evidence that was capable of lending strength to Kidd’s and Smith’s evidence that the appellant threw it away as he and his friends proceeded along the road after the incident.
90It was for the trial judge to decide if other independent evidence was potentially corroborative of the evidence of the witnesses subject to the Vetrovec warning. It was for the jurors to decide whether this evidence actually did strengthen their belief in their testimony.
91The trial judge properly instructed the jury as to the deficits of the witnesses concerning whom he gave a Vetrovec warning. He explained possible examples of corroborative evidence that while not directly implicating the appellant, were capable of inducing a rational belief in the veracity of the evidence of the so-called unsavoury witnesses.
92Accordingly, I would not give effect to this aspect of the issue raised on appeal, and it plays no role in the disposition of this matter.
(c) The instructions on the mental element in murder
93While the identity of the person who beat Prebtani was the primary issue at trial, the defence also advanced the position that if the appellant were found to have been the perpetrator, the Crown was had not proven the requisite intent for murder due to the appellant’s intoxication.
94The trial judge, upon hearing argument about whether the issue of intoxication ought to be put to the jury, citing the case of R. v. Wade (1995) 1995 CanLII 100 (SCC), 98 C.C.C. (3d) 97 (S.C.C.), ruled that there was no air of reality to the defence.
95In his instructions, the trial judge told the jury that the real issue was whether the Crown had established beyond a reasonable doubt that the appellant was the one who struck Prebtani with the bat. After describing the requisite intent for murder, he said:
You should look at Mr. McCarroll’s conduct before, at the time and after the events that caused Rahim’s death. All these things and the circumstances in which they happened, may shed light on Mr. McCarroll’s state of mind at the time. They may help you decide what he meant or did not mean to do. Along with this evidence, you should consider the evidence of Doctor Hunt, the pathologist. In considering all the evidence, use your good common sense. On all of the evidence, it seems pretty clear that whoever inflicted the beating on Rahim, intended it to have one of the lethal consequences to constitute murder. However, that is an issue for you to decide if the Crown has proved beyond a reasonable doubt that Mike McCarroll inflicted this beating. [Emphasis added.]
96The appellant argues that there was a basis for the jury to find that intoxication might have impaired the appellant’s foresight of consequences sufficiently to raise a reasonable doubt on the mental element for murder. The Crown suggests otherwise saying that there was evidence of drinking but that drinking alone does not give rise to the issue of intent, particularly where the nature of the assault leaves little doubt as to the perpetrator’s intention.
97The law is clear that if the trial judge is satisfied that the effect of intoxication was such that it might have impaired the defendant’s foresight of consequences sufficiently to raise a reasonable doubt, he or she must make it clear to the jury that the issue before them is whether the Crown has satisfied them beyond a reasonable doubt that the defendant had the requisite intent for murder. The question becomes; did the defendant foresee that his actions would likely cause the death or did the defendant foresee that his actions would likely cause the death and was reckless whether it ensued.
98Evidence of intoxication is relevant to whether there is a reasonable doubt on the question of intent or foreseeability. As established in R. v. Lemky (1996) 1996 CanLII 235 (SCC), 105 C.C.C. (3d) 137, at para. 17, the question is whether the evidence of intoxication was sufficient to permit a reasonable inference that the appellant may not in fact have foreseen that his acts in relation to striking Prebtani with the bat would cause his death.
99The evidence supports such an inference.
100Smith testified that the appellant was “hammered” when he arrived at the Riverboat and that he continued to consume large quantities of alcohol. There was other evidence going to intoxication including that of Smith and Verschaeve who described the appellant as dazed and unresponsive following the attack.
101In fact, the circumstances here are strikingly similar to those set out in the “barroom brawl” example suggested in Lemky where one inebriated person strikes, and causes the death of another. In these circumstances, the intent to cause death becomes a live issue. McLachlin J. (as she then was) described it as follows.
The actus reus and the intent to commit the act are established by the deliberate blow. But the knowledge component of the mens rea required by s. 229(1)(ii) of the Criminal Code may be put in doubt by evidence suggesting that the accused did not realize, by reason of his or her drunkenness, that the blow was likely to cause the death of the victim.
102In such circumstances, murder may well be reduced to manslaughter because the trier of fact remained doubtful that the defendant intended or knew the probable consequences of his actions.
103In the event the jury concluded that the appellant caused Prebtani’s death, the question of whether the appellant was guilty of manslaughter or second-degree murder was a live issue. It was necessary for the trial judge to have appropriately instructed the jury in this respect.
104This error would warrant setting aside the conviction for second-degree murder and substituting a verdict of manslaughter.
(d) The instruction concerning the Crown’s unfair treatment of important exculpatory evidence.
105In his closing argument the Crown impugned Sivasubramaniam’s honesty when he suggested to the jury that Sivasubramaniam lied as a result of his guilt over his involvement in the altercation. This is how he expressed it:
… What motive might Kirupa [Sivasubramaniam] and Kenny [Baggan] have to lie? I’m suggesting to you, members of the jury, that they knew much more than they were telling.
I’m suggesting to you that Kirupa knew it was a battle. He knew Rahim was involved. He knew that the bat created a whole new danger for him and his friends and he knew that when their friend – their best friend I believe he described him – was in trouble, they didn’t help. They just ran. They fled and their friend paid the price for a conflict that essentially Kirupa started. How do you explain that?
I suggest that they didn’t explain it to people. That they couldn’t. That it was easier to come up with this minimal story that says that it was a simple fight, “I saw the bat and I ran and there was nothing else”. They may very well have convinced themselves by this point that it’s true, but I suggest to you members of the jury, that when you look at all of the evidence and you see that milieu in front of the River Boat (sic), it’s clear that these boys know more than they’re saying.
106The problem is that at no time while Sivasubramaniam was testifying did the Crown suggest to the witness that he had a motive to lie or that he was being untruthful. Thus the defence did not ask Sivasubramaniam questions about his honesty.
107The rule in Browne v. Dunn (1893), 6 R.67, establishes that if counsel seeks to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the opportunity to address such evidence during cross-examination. The nature of the contradictory evidence must at least be put to the witness during cross-examination by the counsel who plans to lead it.
108Here, Crown counsel did not seek to call evidence to contradict what Sivasubramaniam said. Rather, long after he left the courtroom, the Crown presented argument as to why his credibility was suspect. The effect, however, is the same. Neither the defence nor the witness himself was unable to address allegations of dishonesty in respect to a key witness, in any meaningful way.
109While defence counsel pointed out to the jury that the Crown did not cross-examine Sivasubramaniam on any alleged credibility issues – effectively saying that Sivasubramaniam had been unfairly treated in this respect, this was insufficient to correct the problem. Instructions from the trial judge were necessary.
110In coming to this conclusion, I rely on this court’s decision in R. v. McNeill (2000) 144 C.C.C. (3d) 511, in which Moldaver J. offered two suggestions for counsel aggrieved by a breach of the rule in Browne v. Dunn. First, the witness whose evidence is at issue may be recalled. Where recall is impossible, or highly impracticable, as a second option, a special instruction should be given to the jury, in terms of assessing the weight to be given to the evidence.
111In the present circumstances, the only way of effectively correcting the unfairness the Crown created was for the trial judge to tell the jury that in assessing the weight to give to Sivasubramaniam’s evidence, they may properly take into account the fact that he was not given the opportunity to respond to the Crown’s accusations of dishonesty.
112Sivasubramaniam’s credibility was central to the appellant’s position. Crown counsel’s treatment of his evidence was therefore highly prejudicial to the defence. The Crown’s decision not to put Sivasubramaniam’s honesty in issue during the trial may well have influenced Sivasubramaniam’s testimony as well as decisions the defence made to advance the case on behalf of the appellant.
113The trial judge’s silence on this issue amounts to a reversible error.
(e) Defence Counsel’s Failure to Object
114Counsel for the appellant failed to object at various key points during the trial. There was no objection raised to the trial judge’s instruction mid-trial as to the use to be made of Kidd’s videotaped statement. Nor did counsel object to the trial judge’s failure to include Cabral in the Vetrovec warning. Again, counsel did not object when the trial judge instructed the jury that Kidd had adopted her prior statement. Finally, counsel did not object to the instruction with respect to the effect of intoxication on the requisite intent for murder.
115The failure to object can inform the court’s assessment of the adequacy of the trial judge’s instruction, especially where the appellant relies on a non-direction as a ground of appeal. However, I am satisfied that the errors I have identified affected the appellant’s right to a fair trial and counsel’s failure to object is no answer to the errors I have identified.
D. CONCLUSION
116In R. v. Khan (2001), 2001 SCC 86, 160 C.C.C. (3d) 1 S.C.C., Arbour J. provided a template for the use of the curative proviso. First, the question must be asked whether the evidence against the defendant is so overwhelming that a trier of fact would inevitably convict. That is not this case.
117The second question involves examining the nature of the errors and the issues with respect to which they were made to determine if it is possible to trace their effect on the verdict and ensure that they made no difference to the outcome of the trial.
118Alone or in combination, the trial judge’s errors in instructing the jury to accept Kidd’s prior statement for the truth of its contents, failing to provide a Vetrovec warning in relation to Cabral’s evidence, and in failing to address the unfair treatment of Sivasubramaniam, went to the crucial issue of whether the Crown was able to establish beyond a reasonable doubt that the appellant wielded the bat that killed Prebtani.
119The curative proviso is not available to assist the Crown in these circumstances.
E. DISPOSITION
120I would allow the appeal. The conviction is quashed and a new trial ordered.
RELEASED:
“OCT 17 2008” “G. Epstein J.A.”
“JMacF” “I agree J. MacFarland J.A.”
“I agree C. Stephen Glithero R.S.J. (ad hoc)
