WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:
- (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.
(2) For the purpose of subsection (1), the “proper administration of justice” includes ensuring that.
(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and
(b) justice system participants who are involved in the proceedings are protected.
(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).
COURT OF APPEAL FOR ONTARIO
Weiler, Gillese and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Ibrahim Yumnu
Vinicio Cardoso
Tung Chi Duong
Appellants
Gregory Lafontaine, Vincenzo Rondinelli and Lori Anne Thomas, for the appellant Ibrahim Yumnu
Catriona Verner, for the appellant Cardoso
Paul Slocombe, for the appellant Duong
Michal Fairburn and Susan Magotiaux, for the respondent
Heard: April 6 and 7, 2009 and February 1, 2010
On appeal from convictions of first degree murder (x2) and conspiracy to commit murder (x2), entered by Justice Alfred J. Stong of the Superior Court of Justice, sitting with a jury, on December 22, 2005.
1Tung Duong and Dung Ton fell out over money owed and product misappropriated in their business ventures in drugs, prostitution and money-lending.
2Duong decided that he wanted Ton dead. Killed, along with Ton’s wife, Bon Bui, if they were together. Arrangements were necessary. Money to finance the job. A killer or two to carry it out. A weapon. A place away from public view. An escape plan.
3Duong asked for financial help from his lover, Minh Dang, a prostitute associated with both Ton and Duong. She agreed. Duong enlisted Ibrahim Yumnu, an associate in the drug business, to find a killer or two to do the job. Yumnu agreed. He proposed Vinicio Cardoso and Bruce Glen.
4A murder weapon was essential. Duong arranged for a handgun to be brought to Buffalo from California. Three men, including Long Dinh, came with it. Yumnu’s sometime common law partner, Genevieve Ward, drove to Buffalo and returned to Canada with the handgun. The men who brought the handgun to Buffalo entered Canada separately.
5Yumnu entreated Dang to persuade Duong to have Cardoso and Glen kill Ton and Bui, rather than to have any of the men from the United States do so. Duong agreed. A place for the killing was selected, a plan developed to lure the victims there to be killed.
6On a pretence of going elsewhere, Dang lured Ton and Bui to a dark, deserted cul‑de-sac near Highway 11, north of Barrie. There, Cardoso and Glen, armed and out of view, waited. Several shots were fired. Beatings followed. Dang left to meet Duong nearby. Ton and Bui died there. Everybody else fled.
7In time, arrests were made. Dang. Duong. Cardoso. Glen. Yumnu. And Ward. Later, Dang made a deal with the prosecutor and testified against the others at their joint trial.
8After a trial lasting nine months, a jury convicted Yumnu, Duong and Cardoso of two counts of first degree murder and two counts of conspiracy to commit murder. Glen and Ward were acquitted of each of the charges on which they were tried.
9Yumnu, Cardoso and Duong appeal their convictions. They allege that the jury selection at their trial was flawed because the prosecutor had information about prospective jurors that was not disclosed to their trial counsel. They also claim that the trial judge’s final instructions to the jury were riddled with error. In the result, they say, they should have another trial.
10I disagree. The appellants’ counsel at trial were aware that inquiries had been made to determine whether prospective jurors had criminal records, but did nothing about it. The undisclosed details did not affect the reliability of the verdicts rendered nor compromise the actual or apparent fairness of the trial. The final instructions, while not a model of brevity and clarity, were nonetheless adequate in the circumstances of this overwhelming prosecution case. I would dismiss the appeals.
11When first argued, the grounds of appeal advanced all related to the adequacy of the trial judge’s final instructions to the jury. We reserved judgment. During the time judgment was under reserve, the parties became aware of a “jury vetting” practice that had prevailed for a number of years in the trial venue. Inquiries were made. Transcripts of the jury selection process were prepared. A record was compiled, including affidavits on which cross-examinations were conducted. The appeal was re-opened and argument heard about the effect of what had occurred on the integrity of the trial process and the reliability of the verdict.
12These reasons deal first with what was argued last, the jury selection issue, then examine the adequacy of the trial judge’s final instructions.
JURY SELECTION
13Jury selection in a criminal case takes place in two stages.
14The first stage occurs prior to trial and involves organization of an array of prospective jurors. This array, which often consists of several panels of prospective jurors, is made available as a pool from which one or more juries will be selected to try cases at scheduled sittings of the Superior Court of Justice. Provincial legislation governs this stage of the jury selection process.
15The second stage of jury selection takes place in the courtroom and involves the selection, from the array of panels of jurors organized and returned under provincial law, of a jury of 12 to try the allegations contained in the indictment preferred by the prosecutor. The in-court selection is the exclusive preserve of federal legislation, the Criminal Code.
16Both the prosecutor and defence counsel have a voice in the selection of the trial jury. Neither has a greater voice than the other. Neither is entitled to a favourable jury. Neither is entitled to thwart the representativeness or to use the selection process to indoctrinate potential jurors to their view of the case.
17To ensure impartiality and, to some extent at least, the representativeness of the jury, the Criminal Code authorizes two kinds of challenge that may be made in relation to prospective jurors. Challenges for cause are available to ensure the impartiality of prospective jurors. Peremptory challenges may help to ensure representativeness on the jury.
18Neither the prosecutor nor defence counsel has the exclusive right to choose the jury for trial, at least where neither has exhausted their peremptory challenges. While neither can choose the jury on their own, each is entitled (as long as peremptory challenges remain) to exclude certain persons from participation as trial jurors.
19In this in-court phase of the jury selection process, the prosecutor has a duty to ensure that the jury selected for trial is impartial, representative and competent. The prosecutor should use the means available, usually peremptory challenges, to exclude from jury service prospective jurors who could be biased in favour of the prosecution: R. v. Bain, 1992 111 (SCC), [1992] 1 S.C.R. 91, at p. 103.
20The complaint here is that the in-court selection process was flawed because the prosecutor had enlisted the police to obtain information about prospective jurors. This information, the appellants say, might have been of value to defence counsel in making decisions about the exercise of peremptory challenges. The prosecutor’s failure to disclose the information to defence counsel before the in-court stage of the selection process began impaired the appellants’ right to make full answer and defence.
21The undisclosed information emerged from inquiries made after a prosecutor’s comments at a later jury trial in the same jurisdiction, a trial that took place after this appeal was first heard. The respondent carried out investigations, compiled a record, and consented to a re-opening of argument to consider the effect of what had occurred on the verdict at trial.
22Critical to an assessment of the merits of the claim is an appreciation of the circumstances in which it arises in this case.
The Background
23On November 30, 2004, a judge of the Superior Court of Justice issued a precept for the return of eight panels of 100 jurors on each of several specified dates between January 24 and February 3, 2005.
24Prior to delivery of a notice that requires attendance for jury selection, prospective jurors whose names have been randomly selected from assessment rolls must complete a return to their jury service notice. The return involves completion of a one page questionnaire. Among the questions in the questionnaire is the following:
Have you been convicted of an indictable offence for which you have not been granted a pardon?
25Prospective jurors who receive the questionnaire are told that failing to complete it or giving false or misleading answers is an offence punishable on conviction by a fine, a term of imprisonment, or both.
The Information Sheet and Questionnaire
26The eight jury panel lists prepared for the appellants’ trial, in accordance with the Juries Act, R.S.O. 1990, c.J.3, were sent to the Court Services Office in Barrie earlier than usual so that a Juror Information Sheet and Questionnaire could be sent with each juror summons.
27The Juror Information Sheet advised the prospective jurors that they were being summoned as “a possible juror in the murder trial of Ibrahim Yumnu, Tung Duong, Genevieve Ward, Bruce Raymond Glen and Vinicio Cardoso”. Each prospective juror was advised about counsel’s estimate of the length of trial proceedings: four to six months. Prospective jurors were further reminded that “a person convicted of an indictable (serious) offence who has not been granted a pardon” was not eligible for jury service.
Distribution of the Panel Lists
28On December 13, 2004, someone from the Court Services Branch provided a copy of the jury panel lists to the Crown Attorney’s office. Section 20 of the Juries Act forbids disclosure of these lists “until 10 days before the sittings of the court for which the panel has been drafted”. The return date of the first panel was January 24, 2005.
The Memorandum of the Crown Attorney
29On December 14, 2004, an administrative assistant in the Crown Attorney’s office sent the jury panel lists to every police force with jurisdiction in Simcoe County. A form memorandum explained what was sought:
Please check the attached jury panel list, for the persons listed in your locality, and advise if any of them have criminal records. We are not able to provide birth dates.
It would also be helpful if comments could be made concerning any disreputable persons we would not want as a juror. All we can ask is that you do your best considering the lack of information available to us.
Please relay the information by telephone to (705) 739-6188 on or before Wednesday, January 12, 2005.
30Any information provided by a police force in response to the memorandum was transposed to a copy of the jury panel list in the Crown Attorney’s office.
The Background Checks
31Without objection, the respondent filed affidavits from three individuals to explain the checks that were made. Each affiant was cross-examined.
32Det. Sgt. Donald Anthony was the lead investigator. Prov. Cst. Hugh McConachie, who is now retired, was the Court Case Manager for the Barrie Detachment of the Ontario Provincial Police. Both explained the inquiries they made in connection with prospective jurors as a result of the Crown Attorney’s memorandum. Robert Murray, a civilian member of the RCMP, is the person in charge of Civil Pardons and Purge Services of the Canadian Criminal Real Time Identification Services (CCRTIS). He explained the data available to approved agencies in the Identification Data Bank and the extent of information required to determine whether a particular individual has a criminal record.
33Det. Sgt. Anthony ran record checks on 46 prospective jurors. His checks extended beyond the CPIC data base to include internal police records systems. He made notes about his findings: “Okay”, “0”, “10-60”, “possible record” and similar cryptic comments. Det. Sgt. Anthony recorded his comments in his notes, and provided them to the Crown Attorney’s office. The officer was in court during jury selection and offered his view to the prosecutor, based on his annotated jury panel list, before the prosecutor was required to say “challenge” or “content”.
34Det. Sgt. Anthony explained that he confined his checks, as did former Prov. Cst. McConachie, to the area of Simcoe County in which his detachment had jurisdiction. He explained that because jury panel lists do not include dates of birth of prospective jurors, he would access other records systems, to ascertain whether the person had had any contact with police. The officer said that his purpose in performing these searches was to find persons who were likely to be neutral if selected because they had not been “in trouble with the law”.
35McConachie identified prospective jurors who lived in the Oro-Medonte area policed by the Barrie Detachment of the Ontario Provincial Police. Sometimes, he was asked to conduct record checks for persons living elsewhere in Simcoe County. McConachie’s checks did not extend beyond the CPIC data base. He would input the prospective juror’s name and follow up a positive response with a record check. When the record appeared, McConachie tried to determine from the place of conviction the likelihood of a match. If he considered a match was possible, McConachie noted the Finger Print Search (FPS) number and record. He added the birth date. His only purpose was to find out whether someone had a criminal record and to forward that information to the Crown Attorney’s office.
36McConachie was adamant that he checked no data base beyond CPIC. He did not have the time, nor was it his job to go beyond criminal records. He did not consider it his decision who would be selected as a juror. McConachie performed record checks on over 300 prospective jurors. He did not make any notes indicating “okay”, but confined his notations to criminal records.
37Robert Murray described the several data banks maintained by the RCMP on the basis of information supplied by law enforcement agencies. He explained that the data bases included a Criminal Name Index (CNI), Criminal Record Synopsis (CRS), and criminal records. To be entered in the system, any information submitted by a law enforcement agency must be supported by fingerprints and comply with any applicable statutory requirements, but need not indicate whether the mode of procedure was by indictment or by summary conviction. Verification of a criminal record cannot be made without both a date of birth and a set of fingerprints. Every type of inquiry requires identifiers beyond a person’s name. Occurrence reports are not included in these data bases.
Disclosure of Record Checks Prior to Jury Selection
38Before jury selection began, the prosecutor did not disclose to defence counsel the fact that police forces in Simcoe County were conducting record checks on prospective jurors, the nature of the checks conducted, or the information obtained from those checks.
39The appellants have filed no affidavit material from any of the five experienced counsel who represented the appellants and the co-accused, Glen and Ward, at trial. The record rests silent, to say the same thing differently, about any knowledge they may have had about the practice of “jury-vetting” in Barrie or elsewhere, or any pre-trial inquiries they may have made on the subject.
40The notes of Det. Sgt. Anthony, at least the portion of them dealing with the record checks, were not disclosed in advance of jury selection. McConachie did not maintain a notebook nor other record of his work, apart from any endorsements he may have made on the lists or Memorandum he returned to the Crown Attorney’s office.
The Timing of Jury Selection
41Each jury panel was scheduled to attend the court house on a specified date. Typically, not everyone who was summoned appeared. Those who did attend were divided into sub-groups of 25 and directed to return at a specific time and date to begin or continue the formal selection process.
42The trial judge directed the first sub-group to re-attend at 9:30 a.m. on February 28, 2005. In the result, after excusals, deferrals, and failures to appear, the eight panels originally summoned were reduced to a total of 334 prospective jurors assigned to 14 time slots for re-attendance.
The Selection Procedure
43The trial judge permitted each prospective juror whose name was called to explain any problems that he or she might encounter if selected as a juror. Health concerns. Employment difficulties. Financial hardship. Family problems. Those who were not excused or deferred moved on to the next phase of the process.
44The appellant Duong, a member of a visible minority, challenged each prospective juror for cause on the ground of racial bias. Those prospective jurors who were unsuccessfully challenged for cause proceeded to the next phase of jury selection – the peremptory challenge.
45Each juror who was successfully challenged for cause or was challenged per-emptorily received some instructions from the trial judge about communications with other panel members. The rejected jurors were told not to remain around the courthouse, rather to leave immediately, and not to communicate with any remaining panel member about the selection process.
46During jury selection, Det. Sgt. Anthony was in the courtroom to assist the prosecutors. It is a reasonable inference from the fresh evidence that the prosecutors had their jury lists with them in court during the selection procedure, in all likelihood, the tiered lists. Some annotations on the tiered lists were obviously made in the courtroom during jury selection. After all, it would have been pointless for the prosecutors to have sought and obtained the results of police checks, yet leave them behind when the purpose for which they were created was unfolding.
The Juror Incidents
47On February 24, 2005, during the tiering process, the prosecutor queried the eligibility of a member of the jury panel. He thought that this prospective juror may have been convicted of an indictable offence and sought confirmation of the accuracy of his memory. The prosecutor complained about the jury lists: “you don’t get date of births [sic] anymore”. He added:
MR. FLOSMAN: [Crown counsel] Your Honour, I – when this gentleman was initially named back a few weeks ago the name rang a bell and I didn’t think about it more – I found out that he had a criminal record but I haven’t looked at it. I looked at it today and I’m looking at a – I believe I was the prosecutor against his father, so …. (Emphasis added.)
48Apart from the juror referred to in the preceding paragraph, it appears that 24 prospective jurors about whom the prosecutor had information from police checks appeared at the peremptory challenge stage of the jury selection process. Detective Sgt. Anthony had provided information on 21 of those checks.
49A second incident occurred on February 28, 2005, the first day on which the tiers appeared to begin the challenge of individual jurors:
JUROR NUMBER 1402: Okay. I was told that this would be the last opportunity possibly because I’ve been charged with things before, and I was wondering if that means that I’m exempt from this.
THE COURT: Well, it depends. If it’s an indictable offence.
JUROR NUMBER 1402: See that, I don’t know. I could tell you what I was charged with.
THE COURT: Well, I don’t know that that’s necessary but I suppose there would be ways of finding out. And I assume that for these purposes that would have been done.
JUROR NUMBER 1402: That’s what I would have assumed, as well, yeah.
THE COURT: Right, so I’m going to continue, all right? Thank you for bringing that to our attention.
JUROR NUMBER 1402: No problem. (Emphasis added.)
50The parties completed the jury selection on March 4, 2005. No party exhausted their peremptory challenges. Defence counsel retained a total of 9 challenges, the prosecutor, 73. The obvious reference to a criminal record check in connection with one prospective juror, and the assumptions voiced by the trial judge and another prospective juror, compel two conclusions:
i. that defence counsel were aware, during and before the conclusion of the jury selection procedure, that the prosecutor had conducted criminal records checks on prospective jurors; and
ii. that neither the fact that record checks had been done nor their results undisclosed raised any disclosure or trial fairness concerns among defence counsel.
The Disclosure of Det. Sgt. Anthony’s Notes
51On April 22, 2005, about seven weeks after jury selection had been completed, the prosecutor disclosed to defence counsel copies of Det. Sgt. Anthony’s notebook. Included in the notes were unmistakeable references to CPIC checks: “list of potential jurors – need Barrie City people CPIC”, “drop off jury selection list to Hugh McConachie, CCM to do Barrie CPIC over holidays”; “CPIC list jurors” and “RMS/CPIC re jury panel list”. Some entries were followed by a list of names included on the jury panel list and the results of the inquiries. The dates recounted in the notes demonstrate that the record checks of prospective jurors occurred before the formal selection of the jury began.
52About four months after disclosure of copies of Det. Sgt. Anthony’s notes that revealed record checks of prospective jurors, trial counsel for the appellant Duong attempted to cross-examine Det. Sgt. Anthony on the failure of investigators to follow up on the potential involvement of a third party suspect:
MR. FLOSMAN: [Crown Counsel] Your Honour, before we have the jury back in, I have a concern. I think my friend is going down the road I presume he’s going in, this entry in Detective Anthony’s notes deals with him running CPIC checks on a jury list. How is that relevant?
THE COURT: I do not know where he is going. If that is the issue, how is that relevant?
MR. GRYS: [Counsel for Duong] It seems to me if they’ve got time to investigate a quantity of jurors, they’ve got time to investigate Daniel Nguyen.
MR. FLOSMAN: With respect, it’s an attempt to embarrass the police officer in front of a jury, hey guess what, folks, I ran you. I can indicate to the court the second jury trial I ever did, we found after we had a guy serving an intermittent sentence because they denied us the dates of birth for jurors. So it’s a very laborious process, it’s done in each and every case and as you’ll notice what he says is he passes the list off to somebody else to look at, the court officer whose job it is. In my respectful submission it’s not relevant, it shouldn’t be asked.
THE COURT: I think that is beyond the realm of relevancy. I am not going to permit that area of cross-examination.
MR. GRYS: That’s fine. Thank you. Your Honour.
THE COURT: All right. Yes, all right.
53Disclosure of Det. Sgt. Anthony’s notes occurred eight months before the jury rendered its verdicts. During this eight month period, none of the five experienced trial counsel for the appellants and co-accused sought further disclosure of the record checks conducted on prospective jurors, alleged an impairment of the right to make full answer and defence because of incomplete or untimely disclosure of the results of those checks, moved for a mistrial, or sought any other remedy. Nothing.
The Appellate Proceedings
54This ground of appeal first emerged in May 2009, after argument had been completed on the issues raised in the various notices of appeal. It formed no part of the original argument.
The Positions of the Parties
55The appellants contend that the police investigation of the backgrounds of prospective jurors was unlawful from the outset. The jury panel lists were delivered to the Crown Attorney’s office in breach of s. 20 of the Juries Act to allow sufficient time for the checks to be run. These were not simply checks for criminal records, but extended to any contact the prospective jurors may have had with law enforcement agencies. Their purpose was to ensure that the jurors chosen were favourably disposed towards the prosecution, not simply to weed out the ineligible or disqualified.
56The appellants say that jury selection was not conducted on a level playing field. The prosecutor had information about prospective jurors beyond what was available to defence counsel. This information was relevant to decisions about peremptory challenges, thus to the composition of the jury. The information should have been disclosed to defence counsel so that all parties were equally equipped for jury selection. The lack of timely disclosure effectively skewed the balance in favour of the prosecutor and created an appearance of unfairness.
57The appellants point to the significant disparity between the number of challenges remaining to the prosecutor (73), when compared to the appellants (9), on completion of jury selection. Such a disparity, the appellants say, suggests unfairness, the only cause of which was superior knowledge of the backgrounds of the prospective jurors. The appellants say they have established a reasonable apprehension of bias in the composition of the jury. A new trial should follow.
58For the respondent, Ms. Fairburn acknowledges that any concrete information obtained on criminal record checks of prospective jurors should have been provided to trial counsel in advance of jury selection. The obligation to disclose was limited to positive information, not negative information, like the absence of a record. But trial counsel knew, as early as the pre-selection process and, at the latest with the disclosure of Det. Sgt. Anthony’s notes on April 22, 2005, that record checks had been done on prospective jurors. The defence did nothing, for over four and one-half years. They are disentitled to any relief now.
59The respondent further submits that, viewed as a case of failed or late disclosure, it falls to the appellants to demonstrate that there is a reasonable possibility that the omission or delay adversely impacted on the jury selection process or the overall fairness of the trial. In this, Ms. Fairburn says, the appellants have failed.
60The respondent asserts that when complaints of failed or late disclosure at trial are raised on appeal in support of a claim for a new trial, an appellant must first demonstrate a failure to meet the standard of disclosure required. The failure of counsel to object is a significant factor in this analysis. On satisfaction of this requirement, the appellants must further establish that the prosecutorial failure, whether by late delivery or non-delivery, infringed the appellants’ right to make full answer and defence and had an impact on the outcome or overall fairness of the trial proceedings.
61Ms. Fairburn urges that any failure to adhere to the relevant disclosure standard had no adverse impact on the selection of the jury or the outcome of a trial. The disclosure defect had no impact on any prospective juror who was excused or deferred by the trial judge, on any prospective juror who was successfully challenged for cause, or on any prospective juror who was not reached in the selection process. At most, ten prospective jurors about whom the prosecutor had undisclosed information made it to the peremptory challenge phase of jury selection. The prosecutor was required to state his position first in relation to five of these prospective jurors and the defence had to declare first for the other five. No one exhausted their peremptory challenges.
62The respondent takes the position that any complaint about the effect of failed or late disclosure on the fairness of the trial is belied by the failure of trial counsel to take any steps to obtain a remedy when apprised of the conduct of which complaint is now made.
The Governing Principles
63Several principles inform the decision on this ground of appeal. Some have to do with the eligibility of persons to serve as jurors in a criminal case. Others with the propriety of checking to determine whether prospective jurors are disqualified from service because of criminal convictions. Yet others define the disclosure obligations of the Crown and the remedies available on appeal for failed or late disclosure.
The Qualifications of Jurors
64An amalgam of federal and provincial legislation determines the qualifications of jurors in criminal cases.
65Under s. 626(1) of the Criminal Code, anyone who is qualified as a juror according to, and summoned as a juror in accordance with, provincial law is qualified to serve as a juror in a criminal case tried in that province.
66Section 4(b) of the Juries Act declares ineligible for jury service anyone who has been convicted of an indictable offence and has not been granted a pardon for that conviction. The questionnaire sent to each person whose name has been randomly chosen for potential jury service asks each respondent a question about prior unpardoned convictions for indictable offences.
67A person ineligible for jury service under s. 4(b) of the Juries Act would not be qualified as a juror according to provincial law, thus would not be qualified to serve as a juror in a criminal trial in this province because of s. 626(1) of the Criminal Code.
68The expression “indictable offence” in s. 4(b) of the Juries Act includes offences that are exclusively indictable, as well as those that are prosecuted by indictment where the prosecutor has the option to proceed by indictment or summary conviction: R. v. Mitchell (1998), 1997 6321 (ON CA), 36 O.R (3d) 643, (C.A.) at p. 646. It is of no moment to s. 4(b) what punishment was imposed upon conviction.
Challenges for Cause for Ineligibility
69Section 638(1)(c) of the Criminal Code entitles the prosecutor or an accused to challenge prospective jurors for cause on the ground that the juror has been convicted of an offence for which he or she was sentenced to death or to imprisonment for a term of 12 months or more. This provision, in its current or similar language, has been in force since the enactment of the Criminal Code of 1892 when it was s. 668(4)(c). The ground of challenge for which s. 638(1)(c) provides is at once more and less expansive than the disqualifier under s. 4(b) of the Juries Act. It is more expansive because s. 638(1)(c) would include summary conviction offences, provided the imprisonment threshold was satisfied. But it is also less expansive because it would exclude indictable offences where the punishment did not meet or exceed the imprisonment threshold.
70Challenges for cause involve an in-court procedure that takes place prior to any party being called upon to exercise a peremptory challenge. Before a party is entitled to challenge for cause under s. 638(1)(b), the party must demonstrate a “realistic potential” that the jury pool may contain people who are not impartial: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 31; R. v. Williams, 1998 782 (SCC), [1998] 1 S.C.R. 1128, at para. 14. No principled reason justifies any diminution of the threshold approach when the challenge is advanced under s. 638(1)(c).
71A specific statutory procedure is not in place to permit a party to challenge a prospective juror for cause in a criminal case on the basis of ineligibility under provincial law. Section 32 of the Juries Act declares want of eligibility a good cause for challenge, but the provision does not apply to criminal proceedings. The release provisions of s. 24 and the excusal authority of s. 23 of the Juries Act seem equally inapplicable.
The Propriety of Criminal Record Checks of Prospective Jurors
72Since determinations of ineligibility under s. 4(6) of the Juries Act and disqualifications under s. 638(1)(c) of the Criminal Code must be based on evidence, it seems reasonable to conclude that the parties are entitled to adduce evidence to support a claim of ineligibility under s. 4(b) or a challenge for cause based on a prior unpardoned conviction of crime under s. 638(1)(c).
73Rule 4.05(3) of the Rules of Professional Conduct of the Law Society of Upper Canada requires lawyers to disclose to the court “any information that the lawyer has about improper conduct by a member of a jury panel”. Rule 21 of the Code of Professional Conduct of the Canadian Bar Association permits a lawyer to investigate prospective jurors to ascertain any basis for challenge, but the lawyer must not directly or indirectly communicate with the prospective juror or any member of his or her family, and disclose any information acquired to the presiding judge and opposing counsel.
74In express terms or by necessary implication, both sets of Rules of Professional Conduct permit inquiries about prospective jurors to ascertain any basis for challenge and use of the results of those inquiries as the basis for a challenge. The Rules require disclosure of any information obtained to both the presiding judge and opposing counsel and bar any direct or indirect communication with the prospective jurors or members of their family. The scope of permitted inquiry would include investigations about criminal records. Impermissible inquiries contravene a fundamental tenet of the criminal justice system: R. v. Latimer, 1997 405 (SCC), [1997] 1 S.C.R. 217, at para. 43.
The Disclosure Obligations of the Prosecutor
75The prosecutor’s disclosure obligation extends to all relevant, non-privileged information relating to the investigation of the accused and within the prosecution’s control: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 17; R. v. Chaplin, 1995 126 (SCC), [1995] 1 S.C.R. 727, at p. 739; R. v. Egger, 1993 98 (SCC), [1993] 2 S.C.R. 451, at pp. 465-66. Relevant information includes not only information related to what the prosecutor proposes to adduce in evidence, but also any information in respect of which there is a reasonable possibility that it may assist the accused in exercising the right to make full answer and defence: McNeil at para. 17; R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, at pp. 343-44.
76The disclosure obligations of the prosecutor are well defined. Circumscribed, not infinite. Those obligations are not co-extensive with the entire storehouse of information, knowledge and experience, in brief the stock-in-trade a prosecutor may acquire by exposure to daily appearances in the courts and interactions with the police, witnesses, victims and the communities at large in their jurisdiction. Equality of knowledge and community intelligence, like equivalence in skill and experience as between opposing counsel in a criminal trial, is not a constitutional requirement or a principle of fundamental justice.
77The disclosure obligation imposed upon the prosecutor becomes engaged by a request from the person(s) charged: McNeil at para. 17. An accused who learns of a disclosure failure or receives delayed disclosure of relevant information at trial must alert the trial judge to the failure or delay at the earliest opportunity and seek relief for it: Stinchcombe at p. 341. Failure of defence counsel at trial to identify disclosure delays or defaults is a significant factor in determining on appeal whether the failure of or delay in prosecutorial disclosure affected the fairness of the trial process: R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244, at para. 37; Stinchcombe at p. 341.
Appellate Remedies For Disclosure Delays and Defaults
78Where an appellant alleges a disclosure delay or default on an appeal from conviction, the reviewing court must determine not only whether the subject-matter of the complaint met the Stinchcombe test for disclosure, but also whether the prosecutor’s delay or default in disclosure impaired the appellant’s right to make full answer and defence: Dixon at para. 31. An inquiry into infringement comes first, to be followed by an analysis of impact where a case of infringement has been made out. The applicable remedy depends on the extent to which the right was impaired: Dixon at para. 31.
79An appellant who invokes non-disclosure as a ground of appeal against conviction must establish, on a balance of probabilities, a violation of the right to disclosure and consequent impairment of the right to make full answer and defence: Dixon at para. 33.
80To demonstrate an impairment of the right to make full answer and defence as a result of a default or delay in disclosure, an appellant must establish a reasonable possibility that the delayed or failed disclosure affected the outcome at trial or the overall fairness of the trial process: Dixon at para. 34; Stinchcombe at p. 348; R. v. C. (M. H.), 1991 94 (SCC), [1991] 1 S.C.R. 763, at p. 776. The reasonable possibility that the appellant is required to demonstrate must not be entirely speculative, rather must be grounded on reasonably possible uses of the non-disclosed evidence, or reasonably possible avenues of investigation that were closed to the appellant as the result of the default or delay in disclosure: Dixon at para. 34.
81To assess the effect of any disclosure delay or deficit on the reliability of the result of the trial, we must examine the undisclosed information to determine the impact it might have made on the decision to convict: Dixon at para. 36; R. v. Taillefer; R. v. Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 81 (later, Taillefer). The appellant shoulders the onus of demonstrating that there is a reasonable possibility that the verdict might have been different but for the prosecutor’s disclosure default or delay: Taillefer at para. 81. The appellate court will determine whether there was a reasonable possibility that the jury, with a benefit of all the relevant evidence, might have had a reasonable doubt about the appellant’s guilt: Taillefer at para. 82.
82To evaluate the reasonable possibility that nondisclosure affected the overall fairness of an appellant’s trial requires us to examine reasonably possible uses of the non-disclosed information or reasonably possible avenues of investigation closed to an appellant because of the non-disclosure: Dixon at para. 34; Taillefer at para. 84. An important factor to consider in this trial fairness analysis is the position of trial counsel. If defence counsel knew or ought to have known on the basis of other disclosure that the prosecutor had failed to disclose information, yet remained passive for tactical reasons or want of due diligence, a submission that non-disclosure affected trial fairness may be untenable: Dixon at para. 38.
83Essential to the overall fairness of a criminal jury trial is a jury that is and appears impartial in their determination of the adequacy of the prosecutor’s proof. Neither the composition nor the conduct of the jury should give rise to a reasonable apprehension of bias. The intention of the prosecutor in exercising peremptory challenges, as well as the prosecutor’s belief about the overall disposition of the jury, are not dispositive of the bias issue. To sustain a claim of a lack of trial fairness based on a reasonable apprehension of bias, the composition of the jury must be such that it leaves the well-informed observer with a reasonable apprehension of bias in favour of the prosecution: R. v. Biddle (1993), 1993 8506 (ON CA), 84 C.C.C. (3d) 430 (Ont. C.A.), at pp. 443-44.
The Principles Applied
84What remains is the application of the controlling principles to the singular circumstances of this case.
The Propriety of Criminal Record Checks
85Prospective jurors may be ineligible to serve in a trial jury under provincial law or subject to challenge under s. 638(1)(c) of the Criminal Code if they have unpardoned convictions of certain criminal offences. Each person selected for consideration as a prospective juror is asked, and required to answer truthfully on a questionnaire, whether she or he has been convicted of an indictable offence for which she or he has not been granted a pardon. The questionnaire includes the prospective juror’s name and address but does not contain or seek disclosure of the prospective juror’s date of birth or other identifiers. A respondent who admits a previous unpardoned conviction for an indictable offence is not asked to provide any details about any prior conviction.
86Prospective jurors whose previous convictions fall outside the sweep of s. 4(b) of the Juries Act remain eligible for jury service under provincial law. But a party may challenge the prospective juror on the basis of a conviction that falls within s. 638(1)(c) of the Criminal Code, for example an unpardoned conviction for a summary conviction offence that attracted a sentence of imprisonment that exceeded 12 months. The truth of the challenge for cause under s. 638(1)(c), like that of a challenge for cause based on lack of indifference under s. 638(1)(b), is determined by two triers.
87To determine the truth of a challenge for cause under s. 638(1)(b), the party challenging the prospective juror adduces evidence, the answers provided by the prospective juror to questions asked by challenging counsel. The triers make their decision on the truth of the challenge on the basis of their assessment of the evidence and the instructions of the trial judge.
88To determine the truth of a challenge for cause under s. 638(1)(c) also requires evidence, of a prior conviction and a sentence of imprisonment of more than 12 months. To ensure consistency with what is required when the challenge is made under s. 638(1)(b), the challenger under s. 638(1)(c) must demonstrate a realistic potential of a disqualifying conviction before that party will be entitled to proceed with the challenge.
89Prior convictions may affect juror eligibility. They may also affect juror qualifications. To demonstrate either ineligibility or disqualification requires evidence. It follows logically that the parties should be entitled to make inquiries about prospective jurors to ensure that they are neither ineligible nor unqualified for service because of prior convictions.
90In practical terms, as between the parties in a criminal prosecution, only the prosecutor has access to the means by which to conduct criminal records checks on prospective jurors.
91The RCMP maintain a national system that includes information about persons convicted of crime. Local police forces and other accredited agencies have access to this information. Other persons, whether organizations or individuals cannot obtain this information. Access to this system does not guarantee an answer to every query, much less an accurate response. To ensure accuracy of the response, the inquirer needs some details about the subject of the inquiry. Full name. Date of birth. FPS number. Fingerprints. The less complete the descriptors, the less likely a response, all the more an accurate answer.
92The jury panel lists lack crucial information to ensure accuracy in the results of those inquiries. Hence the need to consult other sources for essential information such as dates of birth. But this need for further identifiers to ensure accuracy of information about criminal records cannot justify wide-ranging inquiries to equip the prosecutor with the wherewithal to select jurors favourably disposed towards the prosecution.
93The Crown Attorney requested record checks of prospective jurors in this case. No birthdates were provided. But the Crown Attorney had another request:
It would also be helpful if comments could be made concerning any disreputable persons we would not want as a juror. All we can ask is that you do your best considering the lack of information available to us.
94Despite the scope of the Crown Attorney’s request, the material filed reveals that the purpose of the police inquiries was to determine whether a prospective juror had a criminal record. In the absence of fingerprints, investigators obtained dates of birth from the MTO database, then entered the details into a national database that records criminal convictions. These inquiries confirmed prior convictions or revealed none. In some instances, the officer obtained a print-out of the record.
95The circumstances of this case reveal no colourable use of legitimate criminal record checks of prospective jurors to obtain a favourable jury. McConachie performed most of the checks. He confined himself to criminal records. It was not his job, he said, to check for anything beyond criminal records, nor his business, as he saw it, to help determine who should be on the jury. Det. Sgt. Anthony reviewed the content of any results returned in any of the databases he used and may have printed it. The information could have included a criminal record search, occurrence and arrest reports or other police contact information contained in other databases.
96The material gathered in response to the criminal records queries was in the possession or control of the prosecuting authority. What requires determination next is whether this information fell within the disclosure obligations of the prosecutor.
The Disclosure Issue
97The respondent acknowledges that acquisition and possession of information acquired about the criminal records of potential jurors imposed an obligation on the prosecutor to disclose to the appellants at trial at least any positive results of the inquiries. The respondent is right to acknowledge this obligation, which is consistent with a draft Ministry memo of April 26, 2005 and the subsequent policy memo of March 31, 2006, which provides:
It is the duty of Crown counsel to attempt to obtain a jury that is impartial, not a jury that is favourable to its position. Further, the issue of impartiality between the Crown and the accused is not determined by whether the potential juror has personal opinions of one sort or another on matters peripheral to the case.
In choosing a jury, both Crown counsel and defence should have access to the same background information material. To that end, results of criminal record checks of potential jurors, if obtained by Crown counsel, should be disclosed to defence counsel. Crown counsel should not request police to undertake any further or other investigation into the list of jurors. Crown counsel should not request police to conduct out-of-court investigations into private aspects of potential jurors’ lives.
Any concrete information provided by police to Crown counsel suggesting that a prospective juror may not be impartial should be disclosed to the defence. If background information relating to a prospective juror raises the issue of whether he/she is able to judge the case without bias, prejudice or partiality, Crown counsel should utilize the challenge for cause process to address these concerns.
98No complaint about non-disclosure occurs in the abstract. Context is important.
99Trial counsel are to bring to the attention of the presiding judge, at the earliest opportunity, any prosecutorial failure or delay in disclosure of which counsel becomes aware. When counsel do so, the trial judge is well-situated to gauge the impact of the default and to determine an appropriate and just remedy for it in the circumstances revealed at trial: Stinchcombe at p. 341. As I have already indicated, lack of due diligence, reflected in a failure to complain, is an important factor in determining in an appellate forum whether a new trial should be ordered: Stinchcombe at p. 341; Dixon at paras. 37, 39.
100In this case, as early as February 24, 2005, during the tiering procedure that preceded the formal challenge process, the prosecutor indicated that a prospective juror might have a prior conviction for an indictable offence. What the prosecutor said then would lead a reasonable person to conclude that a criminal records check had been conducted and a record found that the prosecutor wished to confirm with the prospective juror.
101A few days later, during the selection process, another prospective juror told the judge that he had been “charged with things”. Both the trial judge and prospective juror assumed aloud that inquiries would have been made concerning his eligibility.
102About six weeks later, on April 22, 2005, copies of Det. Sgt. Anthony’s notes from September 13, 2004, until April 19, 2005, were disclosed to defence counsel. The notes disclosed his role in vetting the jury list at the prosecutor’s request. The names of the prospective jurors, the database consulted and the results of the inquiries were noted.
103Silence was the only response from defence counsel. No complaint of non-disclosure. No suggestion of any compromise of the right to make full answer and defence. Nor request for disclosure. Nor application for a mistrial or other remedy. Not a peep from a quintet of experienced defence counsel.
104In this case, the failure of counsel at trial to pursue disclosure assumes a place of prominence. The subject first emerged before any prospective juror was challenged and was repeated during selection. Specific details were provided in Det. Sgt. Anthony’s notes six weeks later. The trial did not conclude for another eight months and before its conclusion, counsel for Duong sought to cross-examine Det. Sgt. Anthony on why he had spent so little time investigating a third party suspect when he had squandered so many resources on investigating the prospective jurors. Knowing silence.
105Silence or protest, the prosecutor defaulted on his obligation to disclose that prospective jurors had or may have prior criminal convictions. This criminal record information was something that could have been used by defence counsel in making decisions about the exercise of peremptory challenges. That said, it surpasses reason to suggest that negative results of criminal record inquiries would have been of any appreciable value to defence counsel, irrespective of the order of challenge. Positive results, even of “possible criminal record”, would seem unlikely to have affected defence challenges, except perhaps where defence counsel were required to challenge first when counsel could reasonably expect the prosecutor would challenge later. That did not happen in this case. Prospective jurors with connections to law enforcement or persons involved in the trial showed no hesitation in disclosing these connections before the formal challenge process began.
The Impact of Non-disclosure
106To assess the impact of non-disclosure on the trial process, recall that the right to disclosure is but one component of the right to make full answer and defence: Dixon at para. 31. Every violation of the right to disclosure does not impair the right to make full answer and defence: Dixon at para. 31. The Charter claimant must prove, on the balance of probabilities, that a Charter right has been infringed. In this case, the appellants must show not only that the undisclosed information meets the Stinchcombe standard, but also that the failure to disclose it impaired their right to make full answer and defence: Dixon at paras. 31-32.
107I am satisfied that the appellants have failed to meet the second and crucial requirement, namely impairment of their right to make full answer and defence. In this case, they have failed to demonstrate a reasonable possibility that the non-disclosure affected either the outcome of the trial or the overall fairness of the trial process.
108The information not disclosed here was the result of inquiries to determine whether members of the jury panel, thus prospective jurors, had a criminal record that would render them ineligible for service under provincial law or subject to challenge for cause under s. 638(1)(c) of the Criminal Code. What was not disclosed was not evidence, let alone evidence that was relevant, material and admissible at the appellants’ trial. The evidence upon which the jury rendered its verdict, to convict the appellants and to acquit the remaining co-accused, would not have varied a scintilla had disclosure of the result of the criminal record inquiries been made in a timely way.
109The undisclosed information had nothing to say about the nature and extent of the participation of any appellant in the offences charged. It offered neither contradiction nor qualification of evidence at trial, testimonial or documentary. Indeed, what was not disclosed could not even have made its way into the case for the prosecution or defence. Irrelevant. Immaterial. And inadmissible.
110The undisclosed information did not affect the outcome at trial, that is the reliability of the appellants’ convictions.
111But undisclosed information may infringe an appellant’s right to make full answer and defence in another way: by its effect on the overall fairness of the trial process that led to the findings of guilt: Dixon at para. 36. Typically, what is involved here is an assessment, once again on the basis of reasonable possibility, not fevered imaginings or unbridled speculation, of the lines of inquiry that could have been pursued with witnesses or the opportunities to gather additional information that could have been available to the defence had any or timely disclosure been made: Dixon at para. 36.
112In considering the impact of non-disclosure on the overall fairness of the trial process, we must take into account defence counsel’s diligence in pursuing disclosure from the prosecutor. A lack of due diligence is a significant factor in determining whether prosecutorial non-disclosure affected the fairness of the trial process: Dixon at para. 37; Stinchcombe at p. 341. In some instances, to do nothing in the face of knowledge that relevant information has not been disclosed will, at a minimum, justify a finding of lack of due diligence and may support an inference that counsel made a strategic decision not to pursue disclosure: Dixon at para. 55.
113In this case, I am not satisfied that the non-disclosure affected the overall fairness of the trial process to such an extent that it impaired the right of the appellants to make full answer and defence. A new trial is not warranted on this ground.
114First, this is not a case in which the appellants only learned about non-disclosure of the record checks of prospective jurors after verdict. Far from it.
115On February 24, 2005, during the tiering process that preceded challenges for cause and peremptory challenges, the prosecutor raised the prospect that a potential juror had a previous conviction and lamented the failure of the jury panel lists to include dates of birth to ensure that the convicted person and juror were one and the same. It beggars the imagination to come to any conclusion other than that this disclosure signalled that record checks had been conducted of prospective jurors. Five experienced defence counsel did nothing.
116A few days later, when another prospective juror revealed that he had been charged a few times, both the prospective juror and the trial judge assumed that appropriate checks would have been done. Again, five experienced defence counsel made no inquiry and sought no disclosure.
117When copies of the notes of Det. Sgt. Anthony were disclosed to defence counsel on April 22, 2005, about six weeks after jury selection and eight months before the end of the trial, the five experienced defence counsel had written confirmation of the fact and results of the record checks done by Detective Sgt. Anthony. Again, not a whisper of complaint, a request for further disclosure, a suggestion of impairment of the right to make full answer and defence, or a request for a remedy. One would be naïve to think that, had the non-disclosure been of such significance as it is now said to have assumed, that six weeks into a nine-month trial defence counsel would not have done something about it.
118The commencement and pursuit of appellate proceedings raised no issue of non-disclosure, much less its effect on the reliability of the result or the overall fairness of the trial process. Indeed, what appears to have attracted the appellants’ attention was media reports of “jury vetting” by the prosecutors in another case in the venue of trial.
119The only use five experienced trial counsel sought to make of the record checks of prospective jurors emerged in the cross-examination of Det. Sgt. Anthony at trial. Trial counsel for Duong contrasted the officer’s efforts in “checking out” prospective jurors with his lack of effort in pursuing an alleged third party suspect. The trial judge did not permit the witness to answer the question.
120The appellate record continues the silence of trial counsel. Nothing about their knowledge of the record checks. Nothing about their failure to seek disclosure or a remedy for its failure. And nothing to suggest that the failure impaired the ability of any appellant to make full answer and defence at trial.
121The non-disclosure had no effect on the adjudication of guilt in the traditional sense. The subject-matter of the non-disclosure had nothing to say about the cogency of the prosecutor’s case and could not have opened up any further lines of inquiry or led to the gathering of additional evidence for consideration by the trier of fact.
122The undisclosed information related exclusively to the jury selection process, in particular the exercise of peremptory challenges. Apprised of this information in respect of any prospective juror who was not excused, deferred, declared ineligible because of prior convictions or successfully challenged for cause under either s. 638(1)(b) or (1)(c) and in respect of whom the defence was required to declare first, defence counsel might not have challenged peremptorily in the expectation that the prosecutor would do so because of the prior record. But we know from the fresh evidence record that this possibility never became reality. No one exhausted all their challenges and the defence never challenged first in connection with a prospective juror who police inquiries revealed had or may have had a prior criminal record. There is no reasonable possibility that the jury would have been constituted differently had disclosure been made.
123Peremptory challenges are an important part of the jury selection process. Unlike challenges for cause, that rest upon allegations of lack of impartiality that must be established by evidence adduced by the challenging party, peremptory challenges require no justification or explanation, much less an evidentiary foundation or proof. The very basis upon which peremptory challenges are founded is subjective, not objective: R. v. Cloutier, 1979 25 (SCC), [1979] 2 S.C.R. 709, at pp. 720-21. Peremptory challenges rest upon no firmer foundation than a mere belief, more often a hunch, of a party that within the prospective juror resides a state of mind at odds with impartiality.
124Jury selection is not a science. Anyone who has ever prosecuted, defended or tried a criminal case with a jury has their own views about the basis upon which to exercise a peremptory challenge. Occupation. Education. Mode of dress. Age. None are verifiable empirically. Many, if not most, cannot withstand objective analysis. Peremptory challenges permit a party to remove from jury service a limited number of persons whom the party believes, in the circumstances of the case to be tried, may not reach an impartial, evidence-driven conclusion. The availability of peremptory challenges fosters confidence in the adjudicative fairness of the criminal jury trial. Parties often exercise peremptory challenges in an attempt to secure what they hope will be a sympathetic jury. The equalization of the number of peremptory challenges available to both parties tends to ensure that neither gains an unfair advantage over the other in this aspect of jury selection.
125The record in this case is barren of any support for a claim that non-disclosure of the criminal record checks caused actual unfairness in the peremptory challenge aspect of the jury selection process, thereby in the trial itself.
126Even if undisclosed information may infringe an appellant’s right to make full answer and defence by its effect on the appearance of overall fairness of the trial process, the appellants cannot succeed in the circumstances of this case.
127The number of challenges remaining to the parties when jury selection was completed cannot support an inference, in light of the record, that the selection process had the appearance of unfairness. That defence counsel, for their own reasons, would exercise significantly more of their available peremptory challenges than the prosecutor is scarcely remarkable, let alone indicative of any semblance of unfairness as a result of non-disclosure.
128This is not a case like R. v. Latimer, 1997 405 (SCC), [1997] 1 S.C.R. 217 in which the undisclosed information revealed direct contact with prospective jurors and solicitation of their views and beliefs about subject-matters related to issues likely to arise at trial. Five persons who were administered the questionnaire that solicited their views on these subjects served on the jury. It was in that context that the Court considered that the interference with prospective jurors contravened a fundamental tenet of the criminal justice system: that justice should not only be done, but should manifestly and undoubtedly be seen to be done: Latimer at para. 43.
129The circumstances of this case differ significantly from the circumstances in which R. v. Hobbs, 2010 NSCA 62 was decided.
130In Hobbs, the prosecutor asked the police to check both the Canadian Police Information Centre (CPIC) and the Justice Enterprise Information Network (JEIN) to determine whether any prospective jurors had criminal records. The prosecutor asked that the jury panel members be categorized as panel members
with criminal records and whether of serious offences
without criminal records
with potential but unconfirmed criminal records.
131The information provided to the prosecutor was a factor in the prosecutor’s decision to challenge five prospective jurors peremptorily. The information was not provided to the appellant.
132In Hobbs, Crown counsel conceded on appeal:
i. that the information obtained by the police should have been disclosed to the appellant;
ii. that, had the information been disclosed, there was a reasonable possibility that the defence would have executed its peremptory challenges differently in respect of two prospective jurors, and thereby preserved two peremptory challenges rather than exhausting all their challenges;
iii. that, had the information been disclosed, the jury would have been differently constituted; and
iv. that the appeal should be allowed and a new trial ordered.
133Critical to the decision in Hobbs are two factors that are absent here. First, an affirmative finding, based on a concession by Crown counsel, that non-disclosure had an actual impact on the jury selection. Hobbs exhausted his peremptory challenges. That is not this case. Second, Hobbs had no inkling that the prosecutor had requested record checks of prospective jurors and received the results of those checks. That is also not this case.
134I would not give effect to this ground of appeal.
THE CHARGE GROUNDS
135The appellants allege several deficiencies, both errors and omissions, in the trial judge’s final instructions to the jury. The charge was delivered orally. Each juror was also provided with a written copy of the complete charge, together with verdict sheets and decision trees.
THE VETROVEC CAUTION AND RELATED ISSUES
136Each appellant has a complaint about the Vetrovec cautions contained in the final instructions. All say that the caution relating to the testimony of Minh Dang was inadequate. Duong contends that the instruction in connection with the testimony of Long Dinh was also deficient. Yumnu argues that the trial judge was wrong in giving a Vetrovec warning or its equivalent for the testimony of members of his family that was supportive of his defence.
137Some background is necessary to situate the complaints in their proper context.
The Background
138Minh Dang was a fully involved co-conspirator and an eyewitness to the killings of both deceased. She lured the deceased to the place where the killings were to occur with full knowledge of what lay ahead. Originally a co-accused, she was permitted to plead guilty to the lesser offence of manslaughter and a single count of conspiracy part way through the preliminary inquiry. She received a lenient sentence for her involvement and testified for the prosecution at trial. Her testimony was essential to and occupied a central place in the prosecution’s case against the appellants and their co-accused.
139Minh Dang testified at trial for 14 days. In their closing submissions, trial counsel for the appellants branded her a “liar”, a “pathological liar”, an “unmitigated liar”, an “accomplished actress” and a “Jezebel”, amongst other things.
140Long Dinh was an associate of the appellant Duong. He and others brought the murder weapon to Buffalo from San Jose, California, turned it over to Genevieve Ward for transport into Canada, then entered Canada themselves. Dinh received immunity in return for his testimony.
141Four members of the appellant Yumnu’s family testified at trial. Only April Yumnu was a defence witness.
142Ajnet and Elmosa Yumnu had provided statements to the police that, if repeated in substance under oath, would have been of considerable value to the prosecutor’s case. Both recanted. Despite unswerving allegiance to their recantations, and their best efforts to do otherwise, their trial evidence did provide some support for the prosecution’s case, including proving access to a van used to facilitate the killings.
143Adem Yumnu was also a prosecution witness. He refused to adopt a prior intercepted telephone conversation in which he discussed what to do with a ring taken from Bui on the night she was killed. His testimony did establish a prior link between Glen and Cardoso.
The Jury Instructions
144The trial judge warned the jury that neither Dang’s pleas of guilty nor the sentence she received afforded evidence of the guilt of anyone else on trial.
145Under the heading, Caution Concerning Minh Dang’s Testimony, the trial judge instructed the jury:
i. that it was very dangerous to convict any accused on the basis of Minh Dang’s evidence alone; and
ii. that they should look for independent evidence that confirmed what Minh Dang said before acting upon her evidence; but
iii. they could act on her testimony alone if they believed it and found it trustworthy.
146The trial judge, over 19 pages of transcript, pointed out the reasons underlying the caution, including the myriad lies Dang had told to the police and under oath, and the fact that she had been permitted to plead guilty to a lesser offence and received a lenient sentence. He listed several items of evidence that were potentially confirmatory of her testimony, but limited the confirmatory potential of each appellant’s statements to confirmation in relation to their maker only.
147The trial judge also cautioned the jury about relying on the testimony of Long Dinh. He described Dinh as a co-conspirator who had never been charged as a result of his involvement in providing the gun to be used in the killings. Dinh admitted embellishing his testimony about what happened to the gun and expressed his wish to protect his friend and fellow gun trafficker, Van Lam. The judge told the jurors to look at Dinh’s testimony with the greatest of care and caution and to seek confirmation of it from somebody or something other than Dinh before relying on it in the case against any accused. The trial judge offered some illustrations of potentially confirmatory testimony.
148In connection with the Yumnu family witnesses, the trial judge told the jury that inconsistencies in their testimony, both internally and among their various versions, their reluctance to answer questions and inconsistencies between their evidence and that of others afforded good reason to consider parts of their evidence with the greatest care and caution. The judge then instructed the jury to look for some confirmation of the evidence of these witnesses before relying upon it in deciding whether the Crown had proven its case against the accused beyond a reasonable doubt. The trial judge did not provide any illustrations of potentially confirmatory evidence.
The Positions of the Parties
149Cardoso and Duong contend that the caution about Dang’s testimony was inadequate because it failed to point out two critical features that signalled the need for caution:
i. the inconsistency between Dang’s evidence and the incontrovertible forensic findings at the scene of the killings; and
ii. Dang’s access to disclosure, as a former co-accused who participated in the preliminary hearing prior to her guilty plea.
The caution, they contend, was generally unrepresentative of the defects in Dang’s evidence and overstated its strength.
150For his part, Yumnu takes the position that the instruction about the lack of evidentiary value associated with Dang’s guilty plea diluted its impact (as a benefit given to Dang) as a relevant and important factor signalling the dangers associated with reliance upon Dang’s testimony.
151Duong alone alleges that the caution given in relation to Dinh’s evidence was inadequate: too weak to satisfy the requirements of Vetrovec and without any meaningful discussion of potentially confirmatory evidence.
152Yumnu challenges the propriety of the Vetrovec-like caution given in relation to the testimony of members of his family. This evidence, he submits, was evidence critical to his defence, namely that the facially inculpatory statements he provided to police were involuntary, thus unreliable, given as a result of a promise by authorities so that his children could be removed to a place of safety. Their evidence was exculpatory, did not engage the principles that underpin a Vetrovec warning, thus should not have attracted one according to Yumnu.
153The respondent stands firmly behind the instructions given.
154The respondent says that the caution relating to the testimony of Dang was adequate in every respect. It pointed out the influence of the plea of guilty and sentence for a lesser offence as a factor underlying the need for caution. There was no need to point out any inconsistency between Dang’s version and the findings at the scene. The jurors had the wherewithal to consider the congruity or incongruity of her testimony with the findings at the scene – the scene photos were exhibits. And they made that distinction when they acquitted Glen. Neither was there any need to mention access to disclosure as accounting for the confirmation of Dang’s testimony by other evidence – most of the confirmation came from the testimony of Glen and Ward about which Dang could not have learned from disclosure. And what is more, Ms. Fairburn adds, the charge on confirmatory evidence was unduly favourable to the appellants because it segregated confirmation by accused, thus overriding the principle that evidence need not implicate an accused to be confirmatory.
155The respondent contends that the caution in relation to the testimony of Dinh was adequate. The crafting of the warning was a matter for the discretion of the trial judge. No magic formula need be followed, nor incantation uttered. The warning was repeated when the trial judge reviewed Duong’s position for the jury. Deference should prevail.
156As for the Yumnu family witnesses, Ms. Fairburn observes, the complaint is made for the first time here. Although some of the markers of Vetrovec were used, the trial judge did not say that it was dangerous to act on their evidence or itemize the reasons underlying the need for caution. There was, after all, some basis for caution in relation to those witnesses called by the prosecution. Their evidence was inculpatory in some respects, as well self-contradictory and inconsistent with other testimony. In every event, comments on credibility are not barred, even in connection with defence witnesses.
The Governing Principles
157The central purpose of a Vetrovec instruction is to alert the jury about the danger of relying upon the testimony of unsavoury witnesses and to explain the reasons that underpin the need for special scrutiny of their testimony: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 11.
158Crafting a caution appropriate to the unique circumstances of an individual case is best left to the judge presiding at trial. No particular combination of words is essential, no pre-ordained formula compulsory: Khela at para. 13; R. v. Smith, 2009 SCC 5, [2009] 1 S.C.R. 146, at para. 16. Each case is different. The cautionary instructions should respond to and reflect the circumstances of the case: Khela at para. 14.
159Four elements guide trial judges in the composition of Vetrovec warnings about the testimony of potentially untrustworthy witnesses:
i. identification of the witness whose evidence requires special scrutiny;
ii. explanation of the reasons why the evidence is subject to special scrutiny;
iii. a caution that it is dangerous to convict on unconfirmed evidence of this kind, though jurors are entitled to do so if they are satisfied that the evidence is true; and
iv. advice to the jury that, in determining the veracity of the suspect evidence, they should look for evidence from another source tending to show that the untrustworthy witness is telling the truth.
Khela at para. 37; R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 17-19; R. v. Sauvé (2004), 2004 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 82.
160In some cases, a relevant factor for a trial judge to consider in determining whether to give a Vetrovec warning in connection with the testimony of a particular witness is preferential treatment given to the witness in connection with his or her involvement in the offence. That the witness has changed positions from co-accused to prosecution witness, and the circumstances in which that change came about, for example by entry of a plea with prosecutorial consent to a lesser offence, may favour a Vetrovec warning. Nothing should be said that expressly or by necessary implication removes such treatment as a factor signalling caution and worthy of specific mention by the trial judge: R. v. Chenier (2006), 2006 3560 (ON CA), 205 C.C.C. (3d) 333 (Ont. C.A.), at para. 37.
161As a general rule, a Vetrovec caution that displays the characteristics described in paragraph 155 and contains no other flaw will survive appellate review: Khela at para. 44. Content controls, not form. What matters is that the instruction serves its intended purpose: Khela at para. 13. Sometimes, deficiencies in a Vetrovec caution itself may be compensated for by other passages in the charge: Khela at para. 52.
162Something should be said about the nature of confirmatory evidence and the obligation of the trial judge to instruct jurors about it.
163To be confirmatory of the testimony of a witness whose evidence is subject to a Vetrovec caution, the evidence must be independent of the Vetrovec witness. Said in another way, confirmatory evidence must come from some source other than the tainted witness. To be confirmatory, this independent evidence need not implicate the accused. But the independent evidence must be capable of restoring the faith of the trier of fact in relevant aspects of the tainted witness’ account: Khela at paras. 12 and 16; Kehler at para. 41. Where the only issue is whether the accused committed the offence, confirmatory evidence should provide comfort for the trier of fact that the tainted witness is telling the truth in that regard: Khela at para. 43.
164Jury instructions should make clear the type of evidence capable of offering support for the testimony of the tainted witness. The list of potentially confirmatory evidence may be illustrative rather than exhaustive, but the jury should not simply be turned loose to roam the evidentiary landscape for anything that it feels confirms the truth of the witness’ testimony: Khela at para. 46.
165Two further points. Vetrovec cautions are limited to witnesses called on behalf of the prosecution and relied upon to establish an accused’s guilt: R. v. Suzack (2000), 2000 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.), at para. 186. Vetrovec warnings must not be given in relation to defence witnesses, although a trial judge is entitled to comment on the credibility of witnesses and the reliability of their evidence, including defence witnesses: Suzack at para. 189; R. v. Tzimopoulos (1986), 1986 152 (ON CA), 29 C.C.C. (3d) 304 (Ont. C.A.), at p. 340.
The Principles Applied
166I would not give effect to any of the specific complaints of errors or omissions in connection with the Vetrovec or Vetrovec-like instructions in this case.
167The Vetrovec warning in connection with the evidence of Minh Dang contained all four elements that inform the content of Vetrovec warnings.
168First, the instruction drew the jury’s attention to her evidence as the testimony of a witness that the jury should approach with “the greatest care and caution”. Jurors were instructed that it was “very dangerous” for them to convict any accused on the uncorroborated evidence of Minh Dang standing on its own. The jurors were told to look for confirmation before accepting any of her testimony.
169Second, the trial judge explained why the jury should subject Minh Dang’s evidence to this enhanced scrutiny. She was a named co-conspirator who had previously been a co-accused. She had pleaded guilty to a lesser offence and received a lesser sentence. She had admittedly lied to investigators and under oath. She was described as a “pathological liar”.
170Third, the trial judge told the jury that it was very dangerous to convict anyone on Minh Dang’s evidence alone, but that they could do so if they believed it and found it to be trustworthy.
171Fourth, the trial judge advised the jury that they should look for evidence from another source tending to show that Dang was telling the truth before relying on her testimony.
172The trial judge explained to the jury that to be confirmatory of the testimony of Minh Dang evidence must come from somebody or something else. He illustrated several items of potentially confirmatory evidence, all of it independent of Minh Dang’s testimony, and left it to the jury to determine whether they considered this evidence confirmatory and whether they would act on Minh Dang’s testimony confirmed or on its own.
173In an earlier portion of his charge, the trial judge instructed the jury, as he was required to do, that Minh Dang’s pleas of guilty to manslaughter and conspiracy to commit murder did not constitute evidence of any other person’s guilt. Without such an instruction, there was a palpable danger that jurors would consider Minh Dang’s admission of guilt as an item of evidence supportive of the guilt of everyone else on trial as participants in the same criminal ventures.
174The trial judge revisited the effect of Ms. Dang’s plea of guilty and the sentence imposed when he gave jurors a Vetrovec warning about reliance on her testimony. He explained that the permitted plea and sentencing disposition enured to Ms. Dang’s benefit. That benefit, the trial judge pointed out, was one of the reasons why the jury should approach her evidence with the greatest care and caution.
175Although the appellants also complain that the trial judge did not point out two other reasons why Minh Dang’s testimony should be approached with the greatest care and caution and not acted upon without independent confirmatory evidence, it is debatable whether a trial judge is required to list every reason that underlies the need for specific scrutiny of a witness’ evidence and requires a Vetrovec caution: Smith at para. 14. The adequacy of the instruction is not measured by the number of items in the list of reasons for special scrutiny. As I have indicated, what is more important is that what is said conveys to the jury why the evidence of a particular witness is singled out for special mention. That was done here.
176The omissions of which specific complaint is made did not render the explanation offered for the need for special scrutiny deficient. The jurors were well-equipped, by other testimony and exhibits, to determine whether and to what extent Dang’s testimony coincided with or differed from the physical findings at the scene. It is clear that they did not render verdicts in lock-step with her evidence, witness the acquittal of Glen.
177In one respect at least, the charge about confirmatory evidence was overly favourable to the appellants. The trial judge limited the confirmatory potential of several items of evidence to individual appellants and accused. No such limitation should have been imposed.
178Similarly, the caution relating to the testimony of Long Dinh, of which Duong complains, was adequate. The trial judge also instructed jurors to approach his evidence with the greatest care and caution. They were instructed to look for confirmation of his evidence from other sources. The trial judge gave illustrations of potentially confirmatory evidence. The reasons underlying the need for special scrutiny were drawn to the jury’s attention. The instructions attracted no objection at trial, nor can the complaints of inadequacy prevail here.
179Another deficiency raised for the first time here concerns the cautionary instructions given about the evidence of several witnesses from the “Yumnu family”. The appellant Yumnu did not testify. With the exception of April Yumnu, these “family” witnesses were called by the prosecution.
180The appellant Yumnu provided several statements to the police. He sought their exclusion at trial. He said the statements were involuntary. The trial judge disagreed and admitted the statements in evidence.
181At trial, Yumnu took the position that the statements admitted by the trial judge as voluntary, were in fact involuntary because he had provided them to police as a quid pro quo to secure the safety of his children. Unsupported by his own testimony, Yumnu contended that evidence of his family members supported his claim that his children were unsafe in Ward’s home and, by extension, that his statements to the police were unreliable.
182The respondent acknowledges that the Yumnu witnesses called for the Crown were “not classic unsavoury witnesses”, despite their recantation of highly inculpatory prior statements and testimony. That said, these witnesses did provide some evidence helpful to the prosecution’s case. Their evidence painted the co-accused Genevieve Ward in a most unflattering light.
183Whether to give and how to formulate a Vetrovec caution rests largely with the discretion of the judge presiding at a trial. While reasonable people may differ about the need for such a caution in respect of the Yumnu witnesses who testified for the prosecution, deference is owed to the trial judge on this issue. The instructions invited the jurors to seek confirmation of their evidence before relying upon it in deciding whether the case against the accused had been proven beyond a reasonable doubt. Trial counsel for Yumnu did not object to these instructions either before or after they were given.
184The evidence of these witnesses was highly prejudicial to Genevieve Ward. This was a joint trial. It involved cutthroat defences. The trial judge was required to consider Ms. Ward’s position, not just that of Yumnu, in deciding whether to provide a caution about this evidence.
185A Vetrovec caution should not have been given in relation to April Yumnu, a defence witness. That said, the use that Yumnu sought to make of this evidence beggars the imagination. In the face of an overwhelming prosecution case, this instruction occasioned no prejudice.
THE DURESS GROUND
186The trial judge instructed the jury on the excuse of duress in connection with the appellant Duong’s participation as an aider of the principals in a planned and deliberate first degree murder. The trial judge also left duress for the jury’s consideration in determining Duong’s liability on both counts of conspiracy to commit murder.
The Background
187The evidentiary support offered for the excuse of duress is a statement Duong provided to investigators on June 27, 2002. Duong acknowledged that he knew about the plan to kill Ton. He said that Dang had tried to involve him in the scheme, but that he had resisted her entreaties. Dang told Duong that everything was in place for the killing. She instructed Duong to pick her up at a predetermined place near the location selected for the murders. If he did not do her bidding, according to Duong, Dang said, she would tell Ton, the intended victim, that Duong was “going to kill him [Ton]”. Duong complied with Dang’s request.
188The appellant Duong did not testify at trial. Nor did counsel for Duong attempt to have Ms. Dang confirm this threat Duong had told investigators about on June 27, 2002.
The Jury Instructions
189The trial judge instructed the jury that duress could negative deliberation, thus reduce first degree murder to second degree murder if the jury had a reasonable doubt that Duong was acting under duress when he participated in the murder of the deceased.
190The trial judge also instructed the jury that duress could raise a reasonable doubt that Duong was a member of the conspiracy to murder the deceased.
191The appellants take no issue with the substance of the instructions on duress. The trial judge accurately described the essential elements of duress and did not err in his instructions about the burden of proof associated with it.
The Positions of the Parties
192The appellants contend that the trial judge erred in instructing the jury that
i. duress cannot serve as an excuse for murder;
ii. duress may negate the requirement that a planned murder be deliberate, thus reduce what otherwise would be first degree murder to second degree murder; and
iii. duress may raise a reasonable doubt that a person, in this case the appellant Duong, was a member of an otherwise established conspiracy to commit murder.
193The respondent takes the position that the excuse of duress had no legitimate place in the trial judge’s final instructions. There was no air of reality to the excuse because there was no evidence capable of supporting each of the constituent elements of the excuse. The excuse never should have made its way into the final instructions. It is of no moment that the judge erred in leaving duress as relevant to proof of deliberation. Besides, duress is not available as an excuse for secondary participation in murder.
194In any event, the respondent continues, the jury plainly rejected duress. They convicted Duong of first degree murder and conspiracy to commit murder. Along the way, they rejected the influence of duress on which they were properly instructed. No harm, no foul.
The Governing Principles
195The obligation imposed upon a trial judge to instruct a jury on a defence, justification or excuse is not absolute. The duty becomes engaged when, but only when, there is evidence in the record at trial that provides an air of reality for the defence, justification or excuse. Where there is such an air of reality, a trial judge has a positive duty to put that defence, justification or excuse to the jury. A trial judge has a positive duty of equivalent importance to keep from the jury any defence, justification or excuse that lacks an air of reality: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 51.
196Defences, justifications and excuses often include several elements. The air of reality test applies to each constituent element: Cinous at para. 95; R. v. Savoury (2005), 2005 25884 (ON CA), 200 C.C.C. (3d) 94 (Ont. C.A.), at para. 45. What is required is that there be evidence upon which a jury could reasonably draw the inferences necessary for each constituent element, thus to found an acquittal on that basis: Cinous at paras. 61 and 83.
197The essential elements of the excuse of duress include:
i. a threat of death or serious bodily harm to the accused;
ii. a belief on the accused’s part that the threat could be carried out;
iii. the threat could cause a reasonable person in the accused’s position to do as the accused did;
iv. the accused had no safe avenue of escape; and
v. the accused committed the offence only because of the threats of death or serious bodily harm.
R. v. Hibbert, 1995 110 (SCC), [1995] 2 S.C.R. 973, at paras. 51-62.
198In some instances, that a person commits an offence as a result of threats of death or serious bodily harm can be relevant to proof of the mental or fault element in the crime. In those circumstances, an accused may rely on evidence of threats to contend that the prosecutor has not proven the necessary fault or mental element beyond a reasonable doubt: Hibbert at para. 45.
199But duress is also an excuse. Regardless of its relevance to proof of the mental or fault element, an accused may be able to invoke the statutory or common law excuse to escape conviction: Hibbert at para. 45.
The Principles Applied
200The evidentiary foundation for the excuse of duress here is Dang’s threat to tell Ton that Duong was going to kill him [Ton]. Ton was to be killed that night. The plans were made. The participants were in place.
201The “threat” here was not of death or serious bodily harm, rather of disclosure to someone who was about to be murdered. There was no evidence of its effect on Duong or that he attended at the designated place only because of that threat.
202It surpasses reason to suggest that the evidence was capable of supporting an inference that Duong had no safe means of escape. No reasonable trier of fact could conclude otherwise than that Duong had several obvious and safe means of escape as he drove north on Highway 400 and onto Highway 11.
203The excuse of duress should not have been left to the jury. The fact that it was, and the manner in which it was left for consideration, is not something of which any appellant can complain.
JURY INSTRUCTIONS ON SECONDARY PARTICIPATION AND INCLUDED OFFENCES
204Duong and Cardoso allege deficiencies in the trial judge’s final instructions on secondary participation and the included offences of second degree murder and manslaughter.
SECONDARY PARTICIPATION
205The prosecution’s case against Duong was that he was deeply involved in the plan to murder the deceased, but played no active role in the actual killings. His liability was left on the basis that he was an aider in a planned and deliberate murder and a full participant in the underlying conspiracy.
The Background
206The nature of the complaint advanced by Duong in his factum, though not pressed in oral argument, does not require more than passing reference to what occurred at trial.
207Duong defended the case against him on the basis that he did not participate as an aider in any planned and deliberate murders or other unlawful killings. He rejected Dang’s entreaties and made it clear that he did not want to be, nor was he involved. His only complicity, with which he was not charged, was that he drove Dang away from the place at which the victims had been killed.
The Jury Instructions
208The trial judge gave jurors an overview of aiding, then a more elaborate instruction about the constituent elements of aiding. He pointed out the need to prove that an accused intended to help another commit the offence, not merely that the accused did something that had that effect. He told the jurors that aiding related to a specific offence, one that the aider intends will be committed, or knows that another intends to commit and intends to help the other person commit it.
209In his instructions to the jury, the trial judge linked the aiding instructions to the essential elements of planned and deliberate first degree murder.
The Positions of the Parties
210The principal complaint of the appellant Duong is that the trial judge provided only a cursory overview of what was required to constitute a person an aider in a principal’s crime. The complaint was not pressed in oral argument.
211The respondent submits that the instructions adequately explained both the conduct and fault requirements of aiding and the manner in which Duong could be found guilty of first degree murder as an aider. Nothing more was required.
The Governing Principles
212A person is a party to a crime as an aider if that person does something that helps a principal commit the offence and provides the assistance with the intention of helping a principal to commit the offence: R. v. Almarales (2008), 2008 ONCA 692, 237 C.C.C. (3d) 148 (Ont. C.A.), at para. 66. To be found guilty as an aider of a planned and deliberate first degree murder, a person must do something that helped a principal commit a planned and deliberate murder and provide that assistance with the intention of helping a principal commit a planned and deliberate murder: Almarales at para. 69. The fault requirement involves both intention and knowledge. The aider may acquire knowledge about the planned and deliberate nature of the murder by participating in the planning and deliberation, or by some other means: Almarales at para. 70.
The Principles Applied
213This ground of appeal moves no freight. It is based upon a selective reading of the charge, rather than a consideration of it as a whole. The complaint faintly urged now attracted no objection at trial, either before or after the charge was delivered. The essential elements of aiding were well and fully explained by the trial judge and adequately integrated into instructions about the essential elements of the prosecution’s proof.
SECOND DEGREE MURDER AND MANSLAUGHTER
214Both Duong and Cardoso submit that the trial judge erred in failing adequately to define manslaughter in his final instructions. Cardoso also contends that the instructions on second degree murder were deficient.
The Background
215The positions advanced at trial furnish important context for these complaints about inadequacies in final instructions.
216The prosecutor alleged that Duong was an aider in both killings that were planned and deliberate murders. Duong participated, indeed was the prime mover in the plan to kill Ton. It was Duong who alone had the financial motive to kill Ton and, along with him, Bui. Duong knew that Bui would be with Ton. After all, Duong was intimately involved in the ruse executed by Dang to lure both to the place where they would be killed.
217The prosecutor contended that Cardoso, along with Glen, participated in the killings as a principal. He was at the scene, struck the blows that killed Bui and was a principal in the shooting death of Ton.
218Duong acknowledged that he drove Dang away from the scene of the killings. He was coerced to go there, he said, because Dang threatened to tell Ton that Duong planned to kill him (Ton). Duong was admittedly an accessory after the fact to the murders, but not otherwise complicit in them.
219Cardoso denied any liability. He said that he was in British Columbia when the deceased were killed.
The Jury Instructions
220The trial judge approached his instructions on both murder counts in the same way. He gave separate instructions for each person charged on each count. He summarized the essential elements of first degree murder, then divided them up into three components that could be summarized as:
participation
murder
classification of murder
The trial judge converted each element into a question that he followed with legal instructions, evidentiary references, and the available findings, together with their verdict consequences. He followed the format used in the Ontario Specimen Jury Instructions (Criminal).
221The trial judge did not provide, nor was he asked to give, expanded instructions on the essential elements of unlawful act manslaughter.
The Positions of the Parties
222Cardoso and Glen argue that the trial judge did not adequately instruct the jury on the essential elements of unlawful act manslaughter, rather left it simply as a residual category of unproven murder. For Cardoso, though not for Duong, the air of reality for this instruction emerged from the evidence of Glen who indicated that Cardoso didn’t know what was going to happen at the scene and Dang’s evidence about a plan to injure.
223It is Cardoso’s further position that the trial judge failed to adequately relate the evidence to the offence of second degree murder.
224The respondent submits that the charge on both lesser offences was adequate in the circumstances of this case.
225Ms. Fairburn reminds that the jury convicted both appellants of first degree murder, thus finding that both participated in a planned and deliberate murder. To get there, the jurors plainly found an intention to kill. The failure to elaborate upon the fault element in manslaughter is of no moment. And besides, the circumstances of the killings, involving gunshots and protracted beatings in an isolated place, negate any prospect of manslaughter as a viable verdict.
226Ms. Fairburn adds that Duong, whose liability was based on aiding, was the beneficiary of an extremely favourable jury instruction on second degree murder: the jury was told that to find Duong committed second degree murder, they had to find that he intended to kill or cause bodily harm that he knew was likely to cause death and was reckless whether death ensued or not. No such proof was required to establish Duong’s guilt as an aider.
The Governing Principles
227A brief reference to the principles that govern instructions on lesser or included offences, as well as those that explain or define the essential elements of second degree murder and unlawful act manslaughter will be of service in the assessment of these grounds of appeal.
228Sometimes, commission of one offence includes the commission of another or others. An allegation of first degree murder, for example, includes both second degree murder and manslaughter: Criminal Code, ss. 662(1)(a); 662(2); and 662(3). But a trial judge does not always have an obligation to instruct a jury on every offence that is included in another as a matter of law: the obligation to instruct on included offences depends upon, among other factors, the evidence adduced, the issues raised and the positions of the parties. Where no reasonable view of the evidence could cause the jury to acquit of the principal offence charged, but convict of a lesser or included offence, a trial judge need not instruct the jury on the lesser offence: R. v. Wong (2006), 2006 18516 (ON CA), 209 C.C.C. (3d) 520 (Ont. C.A.), at para. 12.
229The availability of an included offence, thus the obligation to instruct upon it often arises because some affirmative defence is advanced by an accused. Where that defence has several essential elements, there must be evidence capable of sustaining each finding necessary to support the defence before an instruction about it will be required: Cinous at para. 53.
230Murder is defined in s. 229(a) of the Criminal Code and classified for sentencing purposes as either first degree murder or second degree murder in section 231. Any murder that is not first degree murder is second degree murder under s. 231(7).
231The fault or mental element in murder, thus second degree murder under s. 229(a)(ii), combines intent (to cause bodily harm), knowledge (that the bodily harm will likely cause death) and recklessness (whether death ensues). Recklessness is almost an afterthought in this definition: R. v. Cooper, 1993 147 (SCC), [1993] 1 S.C.R. 146, at p. 154.
232Manslaughter is a residual category of culpable homicide, not defined by the Criminal Code. Manslaughter is an unlawful killing that is neither murder nor infanticide. Unlawful act manslaughter is involuntary manslaughter. The fault or mental element in unlawful act manslaughter comprises the mental or fault element for the underlying unlawful act, together with objective forseeability of the risk of bodily harm that is neither trivial nor transitory in the context of a dangerous act: R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3, at pp. 44-45.
The Principles Applied
233This ground of appeal comes up short.
234In his final instructions, the trial judge followed the step-direction approach of the Ontario Specimen Jury Instructions (Criminal). As is well-known, those instructions list the essential elements of an offence, in this case first degree murder, then convert each element into a question for jurors to answer in accordance with the trial judge’s instructions about the governing legal principles, including any defence relating to the essential element under discussion. Adherents to the instructions then review the substantial features of the evidence that relate to that element, and leave the decision about the adequacy of the prosecutor’s proof of that essential element to the jury, along with an instruction about any verdict or further deliberation consequences that may follow from that decision.
235In this case, the jurors were instructed that if they were satisfied beyond a reasonable doubt that Duong and Cardoso, as individuals, unlawfully caused the death of the deceased, but were not satisfied beyond a reasonable doubt that in doing so Cardoso or Duong (as the case may be) had a state of mind required to make the unlawful killing murder, they should find that person not guilty of first degree murder, but guilty of manslaughter. And so it was that manslaughter was left as a potential verdict for each of Cardoso and Duong.
236In connection with second degree murder, the jurors were instructed that if they were satisfied beyond a reasonable doubt that either Cardoso or Duong committed murder, but not satisfied that the murder was both planned and deliberate on the part of Cardoso or Duong, they were to find that appellant not guilty of first degree murder, but guilty of second degree murder.
237The availability of these verdicts was confirmed on the verdict sheets provided for the jury. The findings required for each verdict and appellant were replicated in the applicable decision trees. This is not a case in which verdicts of guilty of first degree murder and not guilty were the only verdicts left with the jury.
238The instructions on second degree murder and manslaughter are not free of error.
239In his charge to the jury on the fault element described in s. 229(a)(ii) of the Criminal Code, the trial judge paraphrased the recklessness element as “was aware of the risk that she [he] could die from the injury, but went ahead anyway and took the chance”. The reference to “risk” is erroneous. The proper standard is “likelihood”. This misdescription was not raised at trial, nor on appeal. It is not fatal here: R. v. Moo (2009), 2009 ONCA 645, 247 C.C.C. (3d) 34 (Ont. C.A.), at paras. 66-67.
240The trial judge did not provide the jurors with an instruction on manslaughter that coincided with the requirements of Creighton described in para. 232. Nor was he asked to do so.
241In this case, the jurors were told that they should convict of manslaughter any accused who unlawfully caused the death of the deceased, or helped someone else unlawfully cause the death of the deceased, but who did not intend to kill, or cause the person bodily harm that the accused knew was likely to kill the person, and was reckless whether death ensued or not (as paraphrased above).
242A more expansive direction would have made no difference. This is not and never was a manslaughter case. Not for any principal. And not for any secondary participant. Out of his own mouth, Duong knew of the plan to kill Ton. In a remote location. In the dead of night. Gunshots, followed by a savage beating. Then flight. Cardoso was a principal. He “whacked” two people and tried to collect some money for it. End of story.
THE INSTRUCTIONS ON FIRST DEGREE MURDER
243Cardoso complains that the trial judge did not adequately relate the evidence to the essential elements of planned and deliberate first degree murder. He does not say that the verdicts of first degree murder are unreasonable or unsupported by the evidence. Once again, background is critical.
The Background
244At trial, the prosecutor took the position that Cardoso, together with Glen, were the principals, the persons who actually killed both deceased. Further, the prosecutor contended, Cardoso was a willing and active participant in the planning of these murders. He was promised consideration for his role and was arrested as he attempted to collect it from a person he erroneously thought had been dispatched by “Abe” to pay him on account.
245Cardoso agreed that he had been part of an earlier plan to “kneecap” Ton, but the plan was never carried out. He said he had no part in any subsequent plan to harm or kill Ton and did not participate in any plan that resulted in the deaths of both Ton and Bui. In fact, according to Cardoso, he was not even in Ontario, much less at the scene of the shootings when they occurred. He tried to explain several highly inculpatory pieces of evidence in the prosecutor’s case, including an alleged confession to an uncle in British Columbia, an admission to an undercover police officer recorded on audiotape, and the presence of his sweater and DNA in the front seat of the vehicle in which the deceased had been shot.
The Positions of the Parties
246Cardoso contends that the trial judge was required to ensure that his final instructions left the jury with a clear understanding about the essential elements of planned and deliberate first degree murder and the evidence that was relevant to their decision. He submits that the trial judge erred in instructing the jury that they could rely on evidence of certain after-the-fact conduct in determining Cardoso’s liability for first degree murder, but failing to give proper limiting instructions about the use of that evidence. Some of the evidence to which reference was made, such as telephone calls to Yumnu and flight to British Columbia, was irrelevant and, overall, the instructions lacked proper balance.
247Ms. Fairburn begins her response with the submission that the instructions on planned and deliberate first degree murder were at once accurate, balanced and complete. Jurors were invited to consider all the evidence that established the planned and deliberate nature of the murder and the evidence that implicated the appellant Cardoso in it. Admittedly, the trial judge did not provide an exhaustive catalogue of evidence that was relevant, material and admissible to demonstrate Cardoso’s complicity. That more items could have been included in the catalogue is not something of which Cardoso can complain.
248Ms. Fairburn takes issue with Cardoso’s complaint about the inclusion of evidence of his after-the-fact conduct as relevant to his culpability for first degree murder. These items of circumstantial evidence should not have been subject to any limiting instructions as Cardoso contends.
The Governing Principles
249In every criminal jury trial, the jury is required to decide various factual issues. It is the task of the trial judge to define those issues for the jury and to explain to them the legal principles that govern their decision on each issue. Decisions on factual issues involve findings of fact. And findings of fact are based on evidence adduced at trial. It is the further obligation of the trial judge to review for the jury the essential features of the evidence, and to relate it to the issues of fact they are required to decide, thus to ensure that the jurors understand the value and effect of the evidence: R. v. MacKinnon (1999), 1999 1723 (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.), at para. 27; R. v. Azoulay, 1952 4 (SCC), [1952] 2 S.C.R. 495, at p. 498.
250Evidence adduced in a criminal trial may be relevant to proof of more than one issue the jury has to decide. For example, evidence of motive may help to establish not only that the person with the motive committed the acts that constitute the basis of the offence charged, but also that she or he did so with the state of mind essential to make that conduct criminal. Where items of evidence have this multiple relevance, a trial judge is under no obligation to recite, chapter and verse, the same evidence twice, where once will do, provided the instructions otherwise make it clear that the same evidence applies to the different issues: R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, at para. 14.
251A prosecutor’s proof often consists of circumstantial evidence. Sometimes, that evidence consists of testimony about things an accused said or did after an offence has been committed. At other times, the evidence may reveal things said or done before or around the same time as the offence was committed.
252Evidence of events that happened after an offence was committed may provide a circumstantial link to the accused as the person responsible for a crime. Possession of a murder weapon. Possession or use of property taken from the victim. Words spoken that reveal intimate details about the circumstances of the offence. Evidence of the kind just illustrated is relevant because it tends to make a fact in issue, the accused’s participation in the offence charged, more likely than it would be without that evidence. It is the relevance of the evidence that informs how the jury should be instructed about its use: R. v. Peavoy (1997), 1997 3028 (ON CA), 117 C.C.C. (3d) 226 (Ont. C.A.), at para. 25.
253Evidence of what occurred or what an accused said or did after an offence was committed does not have any unique or original nature or mythical quality about it. Circumstantial evidence is what it is and what it remains. A brick in the wall. A link in the chain. To be taken into account with and in the context of the rest of the evidence. Weighed. Evaluated. The cumulative effect measured against the prosecutor’s burden of proof: Peavoy at para. 24.
254Sometimes, the prosecutor seeks to use evidence of things said or done by an accused after an offence has been committed to complete its proof through a different chain of reasoning. What is involved here is an inference from things said or done to a state of mind related to the commission of the offence. Flight. Change in appearance. Fabrication of evidence. It is only where the evidence is related to the crime charged that this evidence is of any relevance to the demonstration of guilt. A specific instruction to the jury is required where the evidence is offered for this purpose: R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129, at p. 146; R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72, at paras. 26-27.
The Principles Applied
255This ground of appeal fails.
256The complaints, as I apprehend the submissions, relate to the trial judge’s review of the evidence that tended to link Cardoso to the killings of the deceased and tended to show that he was a principal or a secondary participant in what were planned and deliberate first degree murders. According to Cardoso, some of the evidence to which the trial judge referred was irrelevant to the issue, the references were, on the whole, incomplete, and the instructions on evidence of after-the-fact conduct did not properly circumscribe the use of that evidence.
257First, the trial judge’s general instructions on what constituted planned and deliberate first degree murder and the general nature of the evidence that could be relied upon – prior, contemporaneous and subsequent words and conduct – were free of error.
258Second, the items of evidence to which the trial judge directed the jury’s attention were relevant to the planned and deliberate character of the murders and Cardoso’s participation in them. To be relevant on the issue of Cardoso’s participation in a planned and deliberate first degree murder, individual items of evidence need not prove both that the murder was planned and deliberate and that Cardoso was a principal or secondary participant in it. An individual item of evidence may show that the murders were planned and deliberate. Other items of evidence, individually or cumulatively, may establish Cardoso’s participation in the planning or his knowledge that the murder was planned and deliberate.
259To require an individual item of evidence to prove both the legal classification of the murder and Cardoso’s participation in it is, at once, to substitute proof for relevance and to impose a standard of conclusiveness that very few items of circumstantial evidence could meet: 1 McCormick on Evidence (6th Ed., 2006), §185, at p. 733; R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345.
260The evidentiary references made by the trial judge were incomplete. Absent an obligation upon a trial judge to review all the evidence and relate it to the relevant issues, non-direction on items of evidence is neither surprising nor legally wrong. In many instances, the beneficiary of evidentiary omissions is the accused. So too here. Cardoso can scarcely complain that, among the omissions were references to Dang’s evidence about Cardoso’s participation in a scouting trip to find a location for the murders earlier in the day of the killings, and her evidence of providing the gun to Yumnu in the presence of Glen and Cardoso hours before the killings.
261Third, the evidence of Casamiro Dias and Det. Sgt. Campbell disclosed things that Cardoso said and did after the killings had taken place. Dias’ evidence consisted of admissions he attributed to Cardoso that, on their own, linked him to a planned and deliberate killing, for which he was to be paid $10,000. The details provided were eerily similar to the events that took place when Ton and Bui were killed. This evidence was relevant, material and admissible to prove the planned and deliberate nature of the murders and Cardoso’s participation in them. It was in no way dependent on antecedent proof of the arrangement to pay money for the killings. The same may be said about the evidence of Det. Sgt. Campbell and the recordings of his interaction with Cardoso on collection day. No limiting instructions of the nature suggested were required.
YUMNU’S CONDUCT AFTER THE MURDERS
262Yumnu also alleges error in the trial judge’s instructions about jury use of evidence of what he did and didn’t do after the killings of the deceased. Yumnu didn’t flee. He resumed drug trafficking. And he arranged for Genevieve Ward to call Peel Regional Police to explain Yumnu’s failure to report in accordance with the terms of his release order on the outstanding charges.
The Background
263The jury heard evidence that after the killings of the deceased, Yumnu continued to be involved in drug trafficking. He did not flee, change his appearance or drop out of sight.
264Genevieve Ward, who testified in her own defence, told the jury that during the evening before the deceased were killed, Yumnu telephoned her. He explained to her that his car had broken down. He asked her to call Peel Regional Police Force and to tell them that he would be late reporting to the police station because of this mechanical failure. She called directory assistance for the police telephone number around 11:00 p.m. and called again early the following morning when Yumnu had not returned home.
265When Yumnu spoke to investigators on October 29, 2002, he indicated that this explanation for his failure to sign in prior to 9:00 p.m. was a “line of shit”.
The Jury Instructions
266In his closing address to the jury, the prosecutor submitted that Ibrahim Yumnu had a twofold motive to become involved in the murders of the deceased. He wanted to impress Duong’s associates in San Jose (who had provided the murder weapon) to further his connection with them by providing the killers Duong sought. And Yumnu had a financial motive as well: he would share in the monies paid to Cardoso and Glen because it was he who provided them.
267The trial judge instructed the jury about their use of evidence that Yumnu did not flee and returned to or continued his involvement in drug trafficking. The jurors were told that evidence that Yumnu did not flee after the killings had no probative value in the prosecution’s attempt to establish his guilt. The evidence about drug trafficking was left as a motive on Yumnu’s part to commit the offences.
268The trial judge instructed the jury that they could use Yumnu’s false story of the broken down car on the night of the murders as evidence of planning and deliberation.
The Positions of the Parties
269For Yumnu, Mr. Rondinelli characterizes the evidence of Yumnu’s trafficking activities after the killings as evidence of after-the-fact conduct that had no evidentiary value on any material issue at trial. The jurors, he submits, should have been told that the evidence could not amount to evidence of motive and was of no value in their deliberations.
270Mr. Rondinelli acknowledges the admittedly false story about the car breakdown. But, he says, this evidence, again of after-the-fact conduct, could say nothing about the level of Yumnu’s culpability, thus should not have been left to the jury as an item of evidence relevant to Yumnu’s participation in a planned and deliberate murder.
271Ms. Fairburn submits that Yumnu’s complaints amount to naught. The evidence adduced at trial demonstrated clearly that Yumnu persisted in his drug dealing ways after Ton and Bui had been killed. His involvement in these activities was evidence of motive that tended to link him to the killings. The jury were properly instructed on the relevance of evidence of motive and adequately warned about the lack of probative value associated with the evidence that Yumnu did not flee the jurisdiction or otherwise drop from view after the killings.
272The false story about the car breakdown, Ms. Fairburn points out, cannot fairly be characterized as evidence of after-the-fact conduct. Yumnu’s call to Ms. Ward took place before, not after the deceased were killed. This pre-fabricated deceit was a relevant item of evidence in a determination of Yumnu’s participation in the planned and deliberate murder, despite his acknowledgement that his conduct amounted to manslaughter.
The Governing Principles
273Evidence of motive is circumstantial evidence. The argument for the relevance of motive in a criminal case is that evidence that a person had a motive to do an act enhances the likelihood that the person did that act. Motive points forward to future conduct. The argument involves prospectant use of circumstantial evidence. We infer from prior motive subsequent conduct.
274Evidence of motive is relevant to prove an accused’s participation in an offence, as well as the state of mind with which he or she acted. In other words, motive is relevant in proof of identity and intention: R. v. Lewis, 1979 19 (SCC), [1979] 2 S.C.R. 821, at p. 834; R. v. Cloutier, 1939 26 (SCC), [1940] S.C.R. 131, at p. 135. Motive is evidenced by conduct, including unlawful conduct: R. v. Ruddick (1980), 1980 2941 (ON CA), 57 C.C.C. (2d) 421 (Ont. C.A.) at pp. 437-38.
275Evidence of motive is not excluded simply because it reveals extrinsic misconduct, provided its probative value on the issue of motive outweighs its prejudicial effect through propensity reasoning. Where evidence of motive involving extrinsic misconduct is admitted, the usual limiting instruction associated with evidence of extrinsic misconduct may not be required: R. v. Krugel (2000), 2000 5660 (ON CA), 143 C.C.C. (3d) 367 (Ont. C.A.), at pp. 391-93.
276The motive that may impel a person to do some act that amounts to a crime is as variable as the range of human emotions and behaviour. No closed list can be developed of conduct or events that may serve as a motive for crime.
277The prosecution may also rely on evidence of what an accused said or did after an offence has been committed as circumstantial evidence supportive of guilt. Sometimes, this evidence may include evidence that an accused, after a crime, offered an alibi for the time when the crime was committed. And sometimes, the prosecution contends that the alibi was concocted or fabricated later for the purpose of avoiding liability for the offence committed earlier.
278The authorities considering evidence of after-the-fact conduct distinguish between the evidentiary value of an alibi that is disbelieved, on the one hand, and that of an alibi that has been concocted, on the other. A disbelieved alibi has no evidentiary value. A fabricated alibi can constitute circumstantial evidence from which an inference of guilt may be drawn: R. v. O’Connor (2002), 2002 3540 (ON CA), 170 C.C.C. (3d) 365 (Ont. C.A.), at para. 17. Proof of fabrication of an alibi may be made in various ways. What is critical is not so much how fabrication is established in a particular case, but rather that the proof of fabrication be made by evidence that is independent of evidence that contradicts or discredits the accused’s version: O’Connor at para. 21.
279But fabrication of an alibi need not always occur after the offence to which it relates. Like the acquisition of the means by which a crime is committed, an alibi can be set up, in other words, fabricated, in advance of the commission of the offence to which it relates. An accused may recruit persons, friends and associates, and ask that they tell police, if asked, that she or he was at a specific place or involved in a specific activity, thus could not have been the author of the crime charged. Evidence that an accused fabricated an alibi in advance of the commission of an offence with which she or he is later charged may provide circumstantial evidence of participation and the planned nature of the crime charged.
The Principles Applied
280I would not give effect to either of Yumnu’s complaints neither of which attracted objection at trial.
281Take first the submission about the instructions relating to Yumnu’s continued commerce in illicit drugs.
282Ton was a drug trafficker who was marked for death and killed over a dispute about drugs. He allegedly ripped off Yumnu’s associate, Duong. The evidence of Yumnu’s continued involvement in drug trafficking tended to show the existence, nature and continuance of the relationship among the principals, as well their common interest in competition reduction and punishment of dishonesty.
283The trial judge’s instructions left the positive use that jurors could make of this evidence of continued drug trafficking as evidence of motive. His instructions about motive were legally correct. There was no suggestion at trial that this evidence could not constitute evidence of motive, as evidence of subsequent conduct may do on occasion: R. v. Wall (2005), 2005 80695 (ON CA), 203 C.C.C. (3d) 232 (Ont. C.A.), at para. 68. Indeed, the trial judge’s instructions limiting the use of this evidence, namely evidence of motive, probably enured to the benefit of Yumnu. The evidence would also have been relevant to show the nature of the relationship among the principals, thus enhancing the likelihood of concerted action among them.
284It is also important to remember that the trial judge made it clear to the jury that evidence of Yumnu’s continued residence in and failure to flee from the jurisdiction was of no probative value. This, coupled with an instruction about impermissible uses of evidence of extrinsic misconduct or bad character, ensured that the jurors made no improper use of this evidence of Yumnu’s conduct after the offence.
285To turn next to the evidence of the fabricated tale of a motor vehicle breakdown. The evidence of Genevieve Ward is that the request from Yumnu came significantly before she called Peel Regional Police Services at 11:00 p.m. This request was made before, not after Ton and Bui were killed. It was offered to explain why Yumnu would be late signing in at the police station. This story was pre-fabricated, not put together after the fact, and was properly left as an item of evidence on the issue of whether Yumnu’s participation in the killing of Ton and Bui rendered him guilty of planned and deliberate first degree murder.
286This ground of appeal fails.
EVIDENCE OF BAD CHARACTER
287Cardoso and Yumnu criticize the trial judge’s final instructions because they inadequately warned the jurors about the impermissible use of evidence of bad character. A brief reference to the nature of the evidence will suffice to determine the legitimacy of this complaint.
The Background
288The evidence adduced at trial portrayed Cardoso as a drug courier who provided “muscle” for Yumnu. It also showed that he had been involved in a planned beating of Ton. Cardoso, equipped with a baseball bat, awaited Ton’s arrival in the basement of a grow house operated by Duong and Ton. But Ton couldn’t be inveigled into the basement. The beating was never inflicted.
289Other evidence adduced at trial showed that shortly before the killings of Ton and Bui, Cardoso had been in custody. He had obligations to report to the police and a criminal record that included a conviction for assault.
290Much of the evidence about Yumnu’s antecedents came from the testimony of his fellow co-accused who testified on their own behalf. Cardoso said that he was Yumnu’s “muscle” and did “drug runs” for him. Yumnu promised to pay Cardoso $600 to hurt Ton and did pay him for various other jobs, including cleaning grow houses and breaking people’s kneecaps.
291Glen claimed that Yumnu had asked him to transport drugs for him in the past, but Glen had declined to do so. Yumnu told Glen to carry a baseball bat in his car, along with a glove, to provide a credible explanation for the presence of the bat if stopped by the police. Glen also confirmed that Yumnu used Cardoso for “muscle” and was very secretive about his business dealings.
292Genevieve Ward gave evidence that she would not hear from Yumnu for days as he “TCB”, took care of business. He explained that she was safe under his protection, watched by his “friends”. According to Ward, Yumnu described himself as “Osama” or “bin Laden”, a name he liked. Yumnu was an erratic intimidator who controlled her life.
The Jury Instructions
293The trial judge gave the jury a general instruction about the use that they were not permitted to make of evidence of the bad character or other misconduct of the accused. He listed the names of all accused, except Cardoso. Later in his instructions, the trial judge referred to “any of the accused” and “any or all of the accused”.
294The trial judge explained to the jury that they were not entitled to conclude from the evidence of bad character that, because of it, an accused likely committed the offences charged or should be punished by conviction of the offences charged for prior misdeeds. The permitted uses of the evidence included motive and the credibility of any accused who testified.
295The trial judge instructed the jury specifically about Genevieve Ward’s testimony about Yumnu’s character. The evidence, the trial judge said, could not be used to conclude that Yumnu was guilty because he was a person of bad character, rather, could only be used to show the nature of the relationship between Yumnu and Ward. The trial judge instructed the jury specifically about the evidentiary use it could make of Cardoso’s previous convictions.
The Positions of the Parties
296For Yumnu, Mr. Rondinelli contends that the trial judge failed to adequately instruct the jury about the prohibited and permitted uses of evidence of Yumnu’s bad character. The general instructions provided were inadequate. Specific instructions were necessary, especially in connection with the evidence of Cardoso and Glen. The omission was especially prejudicial because Yumnu did not testify.
297For Cardoso, Ms. Verner points out that Cardoso was omitted, whether accidentally or otherwise, from the general instruction about the limited use of evidence of bad character. The later references to “any and all accused” and similar descriptions did not rectify the omission. The limiting instruction about use of evidence of Cardoso’s prior convictions is inadequate to compensate for the other deficiencies.
298Ms. Fairburn sees it otherwise. She submits that, considered in their entirety, specific mid-trial and final instructions fully apprised the jury about the permitted and prohibited uses of evidence of Cardoso’s and Yumnu’s bad character and extrinsic misconduct.
299It is important to remember, Ms. Fairburn says, that this joint trial involved cutthroat defences, thus expanding the permitted uses of evidence of bad character, diminishing its prohibited use, and complicating the trial judge’s task in final instructions. As the trial proceeded, the trial judge gave jurors proper limiting instructions about the use they could not make of evidence of bad character, including evidence of bad character or extrinsic misconduct of both Yumnu and Cardoso.
300Ms. Fairburn acknowledges the omission of Cardoso’s name from the list of accused at the outset of the instruction on evidence of bad character. That said, she continues, this inadvertent omission was rescued by the contents of the instructions that followed and the references to “any” and to “all” accused. The specific instructions about the evidentiary value of Cardoso’s criminal record, Ward’s evidence about Yumnu and the evidence of Yumnu’s family members about Ward ensured proper jury understanding.
The Governing Principles
301The principles governing jury use of evidence of an accused’s bad character or extrinsic misconduct are well-settled.
302Evidence of extrinsic misconduct or any other evidence that tends to show that an accused is a person of bad character, one who has a disposition or propensity to commit crime, has an inherent prejudicial effect. Untutored about the limits on their use of this evidence, jurors may reason from evidence of bad character to proof of guilt of the offence charged. Such a path of reasoning, which uses evidence of bad character as circumstantial evidence of guilt, the law prohibits. We insist that convictions be grounded on proof of conduct not of character. Confronted with evidence of bad character, jurors may be inclined to punish an accused for prior misdeeds by finding guilt on the charge being tried, without a discerning evaluation of the adequacy of the prosecutor’s proof. The jurors’ attention may also be diverted from the task at hand, an analysis of the cogency of the prosecutor’s proof on the charge being tried, because of the confusion produced by the introduction of other crimes evidence: R. v. D. (L.E.), 1989 74 (SCC), [1989] 2 S.C.R. 111, at pp. 127-28.
303Evidence of bad character, whether established through evidence of extrinsic misconduct or otherwise, engenders both moral and reasoning prejudice: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 100.
304In a joint trial in which one accused adduces evidence that tends to show a co-accused is the type of person more likely to have committed the offence than the party adducing the evidence, a trial judge must instruct the jury in clear terms about the use it can (the positive instruction) and must not (the negative instruction) make of the evidence of the co-accused’s propensity: R. v. Diu (2000), 2000 4535 (ON CA), 144 C.C.C. (3d) 481 (Ont. C.A.), at para. 139.
305The positive instruction explains the permitted use of evidence: to raise a reasonable doubt about the participation in the offence of the party adducing the evidence, because the disposition of the co-accused disclosed by the evidence renders him or her more likely to have committed it: Diu at para. 139. The negative instruction clarifies for the jurors that this evidence of disposition or propensity must not be used to establish the guilt of the person whose disposition or propensity it establishes: Diu at para. 139; R. v. Suzack (2000), 2000 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.), at paras., 127-28; R. v. Marks (2000), 2000 4096 (ON CA), 145 C.C.C. (3d) 569 (Ont. C.A.), at paras. 17-18.
306To determine whether limiting instructions about disposition or propensity evidence adequately protected the rights of any co-accused to a fair trial, it is of some importance to recall the role assigned to that person in the commission of the offence. Evidence of the violent disposition of one not alleged to be a principal in the commission of an offence may present a diminished risk of jury use of disposition or propensity evidence than do circumstances in which the person with the propensity is alleged to be the principal and evidence tends to establish that participation: Suzack at para. 134.
307Finally, evidence of an accused’s lifestyle, including extrinsic misconduct, may be relevant to the credibility of that accused and the reliability of his or her testimony: R. v. Chambers, 1990 47 (SCC), [1990] 2 S.C.R. 1293, at pp. 1310-311.
The Principles Applied
308This ground of appeal fails.
309The trial judge instructed the jurors in general terms about the limited use they could make of evidence of bad character. This instruction included both a negative component and a positive component, to explain the permitted and underscore the prohibited use of the evidence. Both components were legally correct.
310The omission of Cardoso’s name from the list of accused about whom there was evidence of extrinsic misconduct or bad character seems to have been inadvertent. Doubtless, Cardoso should have been added to the list. But the instructions must be read as a whole. When this is done, the references to “any” and “all” accused make it clear that the instruction is of universal application.
311Counsel were provided with drafts of the charge in advance of delivery and offered the opportunity to object to what was said after delivery. What is said now to reflect error attracted no objection. And what is more, as the trial proceeded and evidence apt to engender legally impermissible reasoning made its way into the trial, mid-trial limiting instructions, to which no objection is taken, were given.
312The issue here is not whether more could have been said about this subject. That universal truth establishes nothing. Adequacy does not require perfection. The instructions were adequate. And that is enough.
YUMNU’S STATEMENTS
313Yumnu challenges the trial judge’s final instructions on another ground. He suggests that the trial judge invited the jurors to “engage in an impermissible winnowing approach to its fact-finding exercise” when he instructed them about how they could use Yumnu’s several police statements in determining whether the prosecutor had proven his guilt beyond a reasonable doubt.
The Background
314The prosecutor tendered evidence of several statements made by or attributed to Yumnu as part of the prosecution’s case in-chief. Each statement was made at a jail or in a courthouse. Only one was videotaped. The statements were made over a three month period from August until the end of October, 2002. Yumnu challenged the admissibility of the statements on voluntariness grounds. The challenge failed. The statements were admitted. The prosecutor contended that, on their own, the statements proved Yumnu’s guilt of each substantive and preliminary offence, with which he was charged.
The Jury Instruction
315The specific portion of the trial judge’s instruction to which Yumnu takes exception is this:
Some parts of the statements may help Mr. Yumnu in his defence. You must consider those remarks that may help him along with all the other evidence, unless you are satisfied that he did not make them. In other words, you must consider all the remarks that might help him even if you cannot decide whether he said them.
The Positions of the Parties
316Mr. Rondinelli submits that the law imposes no standard of proof in connection with individual items of evidence adduced in a criminal trial. Rather, the standard of proof applies only to issues of fact, the findings required in order for an essential element in the offence charged to be proven.
317Mr. Rondinelli contends that by his focus on the Yumnu statements, the trial judge’s instructions did not make it sufficiently clear that the statements were neither more nor less than individual items of evidence, not to be considered in isolation, rather as part of the entire body of evidence adduced at trial. Yumnu challenged the reliability of the statements at trial. In the result, the impact of the instruction had a direct and unfair impact on his defence.
318Ms. Fairburn contends otherwise. She argues that the instruction provided is correct, and if anything, is more generous than is the appellant’s entitlement. The jury was told, in effect, that even if they did not accept the exculpatory parts of Yumnu’s statement as true, they still had an obligation to consider all the remarks that might help him.
319Ms. Fairburn adds that the instructions of the trial judge were permeated with references to consider the evidence as a whole and express instructions that the standard of proof applied to the essential elements of each offence, not to individual items of evidence.
The Governing Principles
320It is the obligation of jurors in a criminal trial to consider the evidence as a whole, to assess its cumulative effect and to determine whether that cumulative effect satisfies the prosecution’s burden in relation to every essential element of the offence with which an accused is charged.
321The legal standard of proof does not apply to individual items of evidence. It is legally wrong to instruct jurors, either in express terms or by necessary implication, that the burden has any such application: R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, at pp. 361-362.
322Statements made by or attributed to an accused are simply items of evidence for jurors to consider, along with the rest of the evidence, in deciding whether the guilt of that accused has been proven beyond a reasonable doubt. Like any other item of evidence, jurors may accept all, some or none of what an accused says in the statement. Nothing should be said, again expressly or by necessary implication, that invites jurors to apply a different standard of scrutiny to exculpatory parts of the statement than those that are inculpatory: R. v. Samuels (2005), 2005 15700 (ON CA), 196 C.C.C. (3d) 403 (Ont. C.A.), at para. 29.
The Principles Applied
323I would not give effect to this ground of appeal.
324Especially in a joint trial, where some but not all accused have provided statements to investigators that are introduced in evidence, a trial judge must ensure that jurors understand the use they may make of the statement as evidence. In most instances, as here, the statements are evidence to be considered only in determining whether the offence alleged to have been committed by their maker has been proven beyond a reasonable doubt. A piece of evidence, to be taken into account along with and in the same way as the rest of the evidence. To be believed in whole, in part, or not at all.
325A statement of one of several accused tried jointly is an item of evidence of limited admissibility. Its limited use must be explained to the jury, especially statements that refer to things done or said by others who are being tried together with the maker of the statement. The mere fact that a statement is the subject of specific instruction does not, expressly or by necessary implication, invite an item by item appraisal of the evidence inconsistent with Morin or constitute what has become known as a Miller error: R. v. Miller (1991), 1991 2704 (ON CA), 68 C.C.C. (3d) 517 (Ont. C.A.), at pp. 543-44.
326The impeached portion of the instruction told jurors that they could only eliminate consideration of the exculpatory portions of Yumnu’s statements if they were satisfied that the portions relied upon were not said. Otherwise, the exculpatory portions of the statement could be considered in determining the adequacy of the prosecutor’s proof, even if the jurors were not satisfied of their truth.
327This claim of prejudicial error is unfounded.
THE INSTRUCTIONS ON CONSPIRACY
328The indictment included two counts of conspiracy to commit murder. Cardoso and Yumnu find fault with the trial judge’s instructions on conspiracy, in particular, with the manner in which the unlawful agreements and their membership in them may be proven.
The Background
329At trial, none of the participants took any real issue with the existence of a conspiracy to murder Ton, for that matter, Bui, if she happened to be present at the time Ton was killed. Cardoso acknowledged a conspiracy, but claimed he jumped ship. Yumnu said there was a conspiracy, but said he didn’t actually agree to it since he thought it was a joke. Duong took the position that there was a conspiracy in which Dang was the central player, but he was not part of it.
The Jury Instructions
330In his final instructions, the trial judge described the essential elements of each conspiracy and the requirement that the prosecution prove each essential element beyond a reasonable doubt for each person charged. The essential elements, converted into questions for the jurors to consider, appeared not only in the instructions but also in the decision trees, including an explanation or display of the consequences of each finding open to the jury in the available answers to each question.
331In his preliminary instructions on conspiracy, the trial judge explained that each accused was entitled to have his or her guilt determined on the basis of evidence of his or her own words and conduct. He then directed the jury on the essential elements of each conspiracy and described the position of each appellant in response to the charge.
332The trial judge divided up the essential elements of each conspiracy into three questions that asked:
Was there a conspiracy?
Was the conspiracy to murder the victim?
Was the accused a member of the conspiracy?
The first two questions involve proof of the agreement alleged, the final question membership in the conspiracy.
333The trial judge instructed the jury to approach the membership question in two steps. The first, probable membership, was to be decided on the basis of the words and conduct of the individual accused the jurors were considering. The second, actual membership, could be established by adding the acts and declarations of other likely co-conspirators in furtherance of the common purpose to the words and conduct of the individual accused under consideration to determine whether the individual’s participation had been proven beyond a reasonable doubt.
The Positions of the Parties
334Cardoso and Yumnu acknowledge that the trial judge accurately set out the essential elements of the conspiracies alleged and properly converted them to questions for the jurors to consider. But the trial judge, they say, conflated the third stage of the conspiracy analysis, membership, with the first, agreement. The trial judge referred to evidence to prove the agreement that was irrelevant to that issue and relevant only to the question of membership. The evidentiary references were generally mangled and not all the acts and declarations the judge used to illustrate how the prosecutor’s proof of membership could be completed were in furtherance of the common unlawful purpose.
335The respondent acknowledges that the final instructions on conspiracy have their shortcomings, including unhelpful references to the evidence. But any errors favoured the position of the appellants, imposed a more onerous burden on the prosecution, and had no effect on the result. A more complete instruction would have done nothing less than seal the fate of the appellants on both conspiracy counts.
The Governing Principles
336The nature of the appellants’ complaints renders extended discussion of the controlling principles unnecessary. A few basic reminders will suffice.
337It is fundamental that to establish the guilt of an accused of conspiracy to commit a specific offence, the prosecutor must prove not only the unlawful agreement alleged, but equally the accused’s participation or membership in it: R. v. Carter, 1982 35 (SCC), [1982] 1 S.C.R. 938, at p. 946.
338The first step in conspiracy prosecutions involves proof of the existence of the conspiracy alleged. A determination of the adequacy of the prosecutor’s proof on this issue is to be made on all the evidence, including but not only what alleged conspirators have said and done in furtherance of the common purpose: R. v. Paradis, 1933 75 (SCC), [1934] S.C.R. 165, at p. 168.
339The agreement may be established in a variety of ways, including by inference from the manner in which the substantive offence, the object of the conspiracy, was committed. A reasonable doubt about the fact or object of the agreement ends the jury’s deliberations without consideration of the membership issue in relation to any accused.
340Proof of an individual’s membership in a conspiracy involves two steps. The first step, probable membership, is determined on the basis of the individual’s own words and conduct. Put in another way, proof of an individual’s probable membership in a conspiracy must be made exclusively on the basis of evidence directly admissible against that person: Carter at p. 947. The second step, actual membership, permits recourse to acts and declarations of other conspirators in furtherance of a common design. The purpose of this additional evidence is to convert direct proof of probable participation into completed proof of actual participation.
341It is not every act or word of fellow co-conspirators that may be summoned to complete the prosecutor’s proof of an individual accused’s membership in the conspiracy. The act or declaration must be made while the conspiracy (or common venture) is ongoing and be in furtherance of the common design: Carter at p. 947; R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 8. Sometimes, acts or declarations that occur after the offence object of the agreement has been committed may be “in furtherance” of a common design: R. v. Sauvé (2004), 2004 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.), at paras. 115-118.
342We should also keep in mind that when an alleged co-conspirator testifies and describes acts and declarations of others alleged to be involved in the conspiracy, the co-conspirator exception to the hearsay rule is not engaged. Rather, the evidence is directly admissible against the person whose acts or declarations the co-conspirator describes in his or her testimony: Canada (Attorney General) v. LaForme, [2010] ONCA 532, at para. 1; R. v. Connelly (2001), 2001 NLCA 31, 176 C.C.C. (3d) 292 (Nfld. C.A.), at para. 22.
The Principles Applied
343The trial judge correctly instructed the jury about the essential elements of each conspiracy charged. His legal instructions about what I have termed the agreement component of the offence were legally correct. Regrettably, he limited some of the examples he provided of evidence that could be used to help prove the agreement to what the specific accused under consideration said or did. The examples given did not detract from the overall instruction to consider the whole of the evidence, nor prejudice either appellant who complains now.
344Reduced to its essence, the appellants’ complaint is grounded in a clinical analysis of the probative potential of individual items of evidence stripped of their context. Frequently individual items of evidence have multiple relevance. In cases like this, an item of evidence may help to establish both an agreement and an accused’s participation in it. What is more, it is at least arguable, as Ms. Magotiaux for the respondent points out, that the trial judge’s instructions left the impression that an appellant had to be “instrumental” in the functioning of the conspiracy, thus imposing an additional requirement of proof beyond what the governing principles demand.
345Further, this is a case in which an admitted co-conspirator and participant in the killings testified for the prosecution. Dang gave evidence of things done and said by each of the appellants. The prosecution did not need to invoke any hearsay exception to permit jury use of this evidence.
346The unlawful killings of the deceased were nothing less than executions. The victims were lured to a dark, deserted road. Ambushed. Shot. Beaten. Left for dead. Getaway vehicles nearby. That there was a conspiracy was res ipsa loquitur. The appellants were present or nearby. Everybody had a role.
347The conspiracy counts were the third and fourth counts of the indictment. An orderly deliberation process would entail verdicts on the murder counts first. If that reflected the order of deliberations at this trial, it was all over but for the marking of the verdict sheet for these appellants on the conspiracy counts.
348The final instructions on conspiracy were flawed. Incomplete for failure to review the relevant evidence and relate it to the issues. Confusing, for misplacing items of evidence on issues to which they did not relate. But of no moment in the final analysis and in light of the correct instructions on the essential elements of the offence and the overwhelming nature of the prosecution’s case.
COPIES OF THE CHARGE
349The trial judge provided jurors with a written version of his complete final instructions.
350Cardoso and Duong take the position that it was wrong for the trial judge to have provided a written copy of his entire charge to the jury for their use during deliberations. They also say that the written form aggravated the effect of two specific errors about the standard of proof.
The Background
351Context is critical to an evaluation of the propriety of the procedure followed here.
352Evidence was first introduced at the appellants’ trial on March 7, 2005. The evidence concluded nearly eight months later on November 2, 2005. Five accused stood trial on an indictment that contained five counts, including substantive offences, preliminary crimes and a single allegation of assistance after the fact. The jury was required to return (and did return) 19 separate verdicts.
353The trial judge’s final instructions were delivered over four days, nearly six weeks after the evidence had concluded. Defence counsel were united in provision of the “law” portion of the final instructions to the jury in writing, but resisted inclusion of the evidentiary references. At first, the trial judge agreed with the defence position. Later, he changed his mind and provided the entirety of the charge, including the evidentiary references and the positions of counsel.
The Positions of the Parties
354The objections of Cardoso and Duong have three aspects. The entire charge should not have been left to the jury because doing so simply compounded the effect of the several erroneous instructions on the deliberation process. Two specific errors added to the unfairness of the trial. The first involved instructions that could be viewed, especially when reduced to writing, as detracting from the principles of R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. The second contradicted the principles in Morin that the burden of proof applies to the essential elements of the offence, not to individual items of evidence.
355The respondent counters the appellants’ submissions on each issue. Ms. Fairburn submits that the trial judge had a well-grounded discretion to provide a written copy of the entire final instructions to the jury for their use during deliberations. He exercised that discretion properly in this joint trial of multiple counts and accused that extended over several months and involved cutthroat defences. Although prior decisions of this court note that written instructions are more likely to be relied upon than those given orally, what is critical is the nature and extent of any errors, not the form in which they are expressed. Nothing erroneous here is rendered fatally so by its reduction to writing.
The Governing Principles
356The Criminal Code contains no reference to written copies of jury instructions. Indeed, it contains only a glancing reference to jury instructions, for example, in s. 650.1 (pre-charge conference “with respect to the matters that could be explained to the jury and … the choice of instructions to the jury”) and in s. 682(2)(b) (“a copy or transcript of any charge to the jury …”). In the result, the Criminal Code neither requires, permits, nor prohibits final instructions, given orally, being reduced to writing for jury use during deliberations.
357In recent years, this court and other appellate courts have recognized that provision of written versions of final instructions is at once permissible and conducive to enhancement of juror comprehension: R. v. Poitras (2002), 2002 23583 (ON CA), 57 O.R. (3d) 538 (C.A.), at para. 47; R. v. Henry (2003), 2003 BCCA 476, 179 C.C.C. (3d) 307 (B.C. C.A.), at para. 57; R. v. Nieto (2007), 2007 MBCA 82, 222 C.C.C. (3d) 510 (Man. C.A.), at para. 47.
358Some courts have queried the utility of voluminous written materials, especially those bulked up by endless recitations of evidence: Henry at para. 58. In this province, many trial judges omit from the written versions of their oral instructions evidentiary references and statements of the positions of counsel, on the ground that factual decisions are for the jury who are not bound by the trial judge’s summary, and that jurors are equally not bound by positions of counsel. Rather, the jury is required to decide only whether the essential elements of an offence have been proven beyond a reasonable doubt: R. v. Pickton, 2010 SCC 32, at para. 33.
The Principles Applied
359I would not give effect to this ground of appeal.
360The general submission advanced here that the trial judge was wrong to provide a written copy of his entire charge to assist jurors in their deliberations rewinds a complaint made by trial counsel in Poitras – that written versions of materials included in final instructions should not be provided to jurors. This court embraced the use of written materials to advance juror comprehension of oral instructions, especially when those instructions are, of necessity, long and complex: Poitras at para. 47.
361The second submission made in Poitras was that, if any part of the charge was provided to the jury in writing, the entire charge, every word spoken by the trial judge, must be provided in written form. The argument here turns this second submission made in Poitras on its head, alleging error in what was argued there to be essential.
362The Poitras court rejected the all or nothing argument advanced there. The written version need not be an exact replica of the oral rendition, but what is provided, for example the governing legal principles, must contain all the instructions on those principles, including instructions on the presumption of innocence and the burden and standard of proof: Poitras at para. 59.
363The Poitras court considered that provision of a written copy of all the instructions to the jury for their reference during deliberations could bury a critical part of those instructions in a maelstrom of detail of which the jury would have no need during deliberations: Poitras at para. 59. A similar observation was made in Henry about protracted evidentiary references: Henry at para. 58.
364Each case is different. In this case, I am not persuaded that provision of the entire charge to the jury in written form, together with the deliberation aids of decision trees and verdict sheets, reflects legal error or an abuse of judicial discretion, or created any unfairness in the adjudicative process that led to verdict.
365The content of these instructions was reviewed with counsel prior to oral delivery. Each was afforded ample opportunity to make submissions about their content, as well as their overall balance. Adjustments were made.
366A judge who proposes to provide jurors with a written version of final instructions for their use during deliberations should always vet those instructions with counsel sufficiently in advance of delivery to permit meaningful discussions and any necessary corrections. The procedure followed in Poitras should be used as a guide. The trial judge followed that approach here.
367In appropriate cases, no principled reason prohibits a trial judge from providing a written version of his or entire charge for jurors’ use during deliberations. In deciding whether to follow this approach, a trial judge might consider factors such as these:
i. the length of the trial proceedings, including the period between the conclusion of the evidence and the charge;
ii. the volume of evidentiary references contained in the charge, bearing in mind the principles governing evidentiary review;
iii. the danger of diluting the effect of the instructions on the governing legal principles by their submersion in a protracted evidentiary review;
iv. the positions of counsel;
v. the issues to be resolved by the jury in their deliberations;
vi. the danger of simply overburdening the jurors by the volume of the instructions;
vii. whether jurors took notes of the evidence adduced at trial;
viii. the risk that jurors will consider the evidentiary references to be exhaustive of the evidence they should consider in reaching their decision; and
ix. any other relevant circumstances.
368Where written versions of final instructions provided to the jury include evidentiary references, a trial judge should emphasize the obligation of the jurors to consider all the evidence, not just that to which reference is made in the instructions. The judge should remind jurors of the supremacy of their recollection of the evidence, of its importance to their decision and of the irrelevance of any views the judge may have or seem to have about factual issues.
369Critical to any assistance that written versions of final instructions may provide to jurors is the jurors’ ability to read and understand the language of trial. In this case, the questionnaire provided to each perspective juror asked about and required a reply to a question about language facility. There is no suggestion that any juror selected could not read or understand the language of the final instructions.
370In this case, as I have said, provision of a written version of final instructions to the jurors was neither wrong, nor unfair.
371The specific complaints advanced in conjunction with this ground also fail. A general instruction that evidence of a single witness, if believed, is sufficient to prove an issue of fact is at once correct and does not detract from a Vetrovec warning in connection with the testimony of a specific witness. It also ensures, often to the benefit of an accused, that findings of fact are based on the quality of testimony, not on the quantity of witnesses who give it. Based upon who is believed, not on how many are called. The instruction on W. (D.) was adequate in the circumstances of this case.
A Postscript
372Specimen jury instructions provide the basic building blocks for a jury charge. They are not the one-size-fits-all of jury instructions. Their application is reasoned, not rote. Tailoring may be required. A trim here. An addition there. According to the circumstances of the case. The inclusion of irrelevant instructions blurs the focus of the trial. In some cases, the clutter of irrelevancies may cause a miscarriage of justice. After anxious consideration, I am satisfied that it did not do so here.
373The manner in which trial judges instruct juries, how they organize their final instructions, is left largely to their discretion. Reasonable people may differ about how best to educate jurors to make an informed decision. Substance controls, not form. But sometimes the manner chosen to convey the essential matter may obfuscate rather than enlighten. That nearly happened here. The chief mischief makers: prolixity, rote repetition, uneven evidentiary references and flawed organization. Perfection in final instructions is neither required nor attainable, but organized, focused, clearly expressed instructions, tailored to the circumstances of the case are at once the entitlement of the jurors and the obligation of the trial judge.
CONCLUSION
374For these reasons, I would dismiss the appeals.
RELEASED: October 5, 2010 “KMW”
“David Watt J.A.”
“I agree K.M. Weiler J.A.”
“I agree E.E. Gillese J.A.”
