Her Majesty the Queen v. J.M.
[Indexed as: R. v. M. (J.)]
Ontario Reports Court of Appeal for Ontario MacPherson, Huscroft and Nordheimer JJ.A. December 20, 2018
144 O.R. (3d) 125 | 2018 ONCA 1054
Case Summary
Criminal law — Evidence — Post-offence conduct — Accused convicted of sexual assault
The trial judge erred in admitting evidence of the accused's failure to attend on his original trial date as post-offence conduct evidence. The accused had pled guilty to failure to appear as a result. The accused wanted to testify on voir dire but the judge refused to allow him to do so. The judge erred by concluding that if evidence was relevant it was admissible without weighing probative value versus prejudicial effect before determining whether evidence was admissible. The trial judge erred in instructions regarding weighing post-offence conduct evidence by failing to provide evidence about other explanations for the accused's failure to appear. These errors potentially undermined the fairness of the trial.
Facts
The accused was convicted of sexual assault. His then girlfriend, who lived in Alberta, was his surety and he was required to live with her as a term of his release. When their relationship ended, she surrendered her surety. The accused failed to either obtain a new surety or surrender himself and then he failed to appear for trial. A warrant was issued for his arrest and the trial was rescheduled. A mistrial was declared at his first trial when the jury was unable to reach a verdict.
At the accused's second trial, the Crown sought permission to lead evidence about the accused's failure to appear for his original trial date as evidence of post-offence conduct. The accused sought to give evidence on the voir dire to establish, as his counsel advised the trial judge, that he failed to appear because his surety had terminated her suretyship and he was "in emotional and financial dire straits". The trial judge did not permit the accused to testify on the voir dire as he concluded that the credibility of the explanation was for the jury. He ruled that the evidence of the accused's failure to attend for his original trial date was admissible. The accused appealed his conviction.
Decision
Held: The appeal should be allowed.
Per Nordheimer J.A. (MacPherson J.A. concurring): In order for the trial judge to make a proper decision on whether the evidence of the missed trial date ought to be admitted, it was critical for the trial judge to know the circumstances surrounding the accused's failure to appear. Without allowing the accused to give evidence on the voir dire, the trial judge could not have conducted a proper relevancy analysis or properly exercised his discretion whether to admit the evidence. Moreover, the trial judge appeared to have proceeded on the basis that, if the evidence was relevant, it was automatically admissible without weighing whether its prejudicial effect outweighed its probative value.
The trial judge properly instructed the jury that they could use the evidence of after-the-fact conduct, along with other evidence, to support an inference of guilt only if they rejected any other explanation for that conduct. However, the trial judge failed to advise the jury about any alternative explanations for the accused's conduct, which he was required to do, even though the evidence was limited. The absence of alternative explanations raised the very real risk that the jury would misuse the post-offence conduct evidence.
While the trial judge referred to defence counsel's statement in his closing submissions that the accused's girlfriend had terminated her suretyship, that reference was not sufficient to cure the problem. The explanation would have carried more weight with the jury had it come directly from the trial judge, and the reference was completely detached from the trial judge's original post-offence conduct instruction. Articulated in isolation, it did not serve to remind the jury that they could only use the post-offence conduct evidence in relation to guilt if they rejected any other explanation for his conduct.
The trial judge's failure to properly deal with the post-offence conduct evidence potentially undermined the fairness of the trial. The conviction is quashed and a new trial ordered.
Per Huscroft J.A. (dissenting): Defence counsel informed the trial judge that he sought to call evidence to establish that the accused failed to appear because his surety revoked and because he was in emotional and financial dire straits. That short summary of the proposed evidence was sufficient to allow the trial judge to make an informed decision. The accused does not argue that his explanation would have rendered post-offence conduct evidence inadmissible. Moreover, the trial judge did not fail to exercise his residual discretion to exclude the evidence. His reasons, when read as a whole and in the context of the parties' submissions, clearly addressed the issue of possible prejudice and that discretionary ruling was entitled to deference.
The trial judge's mid-trial instruction properly informed the jury that it could use the evidence of after-the-fact conduct along with other evidence to support an inference of guilt only if it rejected any other explanation for that conduct. The accused did not testify or call any other evidence. As a result, the only evidence at trial supportive of the defence position regarding the post-offence conduct was that a committal order had been issued because the accused's surety had revoked. The trial judge informed the jury of both the Crown and the defence positions concerning the accused's post-offence conduct. Nothing more was required.
Reasons for Judgment
A. BACKGROUND
1NORDHEIMER J.A. (MacPherson J.A. concurring): — Mr. J.M. appeals his convictions on two counts of sexual assault following a five-day jury trial. For the reasons that follow, I would allow the appeal and order a new trial.
2The charges against the appellant arose from allegations by two female complainants that he sexually assaulted them when they were children. After his arrest on April 10, 2013, the appellant was released on bail with his then girlfriend as his surety. His conditions of release included a requirement that he reside at his girlfriend's address in Calgary.
3The matter proceeded to a preliminary inquiry in January 2014, which the appellant attended. At the conclusion of the preliminary inquiry, he was committed to stand trial on all counts.
4Between February 2014 and July 2014, the matter proceeded through various appearances and pre-trial motions in the Superior Court of Justice in Pembroke, Ontario. The appellant was not present for any of these court appearances. The matter was eventually scheduled for a two-week trial commencing on May 25, 2015. The appellant was notified by letter and by telephone about the trial dates and about his obligation to attend.
5Between July 2014 and May 2015, the appellant's relationship with his girlfriend ended. She terminated her suretyship, but the appellant did not voluntarily surrender himself into custody. During this same time period, the appellant ceased communicating with his trial counsel, who brought a successful motion to be removed as counsel of record in February 2015. The appellant was not present for this motion.
6The appellant did not appear on the May 25, 2015 trial date. Consequently, the trial judge issued a warrant for his arrest. Three days later, an information was sworn charging the appellant with failing to attend court pursuant to s. 145(2) of the Criminal Code, R.S.C. 1985, c. C-46.
7In January 2016, the appellant was arrested by the Calgary Police Service in relation to unrelated charges in Alberta. The authorities in Ontario became aware of the arrest. In February 2016, an officer with the Ontario Provincial Police travelled to Calgary and brought the appellant back to Ontario. He remained in custody thereafter.
8The appellant's trial was rescheduled. It proceeded from July 18 to 28, 2016. The prosecution called the two complainants along with various other witnesses. The prosecution did not seek to put into evidence the failure of the appellant to attend on his first trial date. The appellant did not call any evidence. On the second day of jury deliberations, a mistrial was declared after the jury advised that they were unable to unanimously agree on a verdict.
9On August 2, 2016, the appellant pleaded guilty to failing to appear for his original trial date.
10Following the mistrial, a second jury trial was scheduled to begin on December 12, 2016. Pre-trial motions were set for October 31, 2016.
The Pre-Trial Motion
11As part of the pre-trial motions at the second trial, the prosecution sought permission to lead evidence about the appellant's failure to attend for his original trial date. The prosecution contended that this evidence was admissible as "consciousness of guilt" evidence. The prosecution's evidence on the voir dire consisted of a written application record. The appellant sought to give evidence on the voir dire to establish, as his counsel advised the trial judge, that he "failed to appear at his trial because of his surety revoking [and] just being in an emotional and financial dire straits".
12The trial judge ruled that the appellant would not be permitted to testify on the voir dire. His stated rationale for this conclusion was as follows:
So that leads me to conclude that while the accused may well have an explanation to provide, that explanation ought to be presented to the finders of fact and to the jury.
I do not see any utility in having that evidence presented here in this forum today when it is my opinion that it ought to be heard by the jury.
13The voir dire then proceeded with argument from counsel. On November 23, 2016, the trial judge ruled that the evidence of the appellant's failure to attend his original trial date was admissible at trial. He began by holding that after-the-fact conduct "is commonly admitted to show that an accused person has acted in a matter [ sic ] which, based on human experience and logic, is consistent with the conduct of a guilty person, and inconsistent with the conduct of an innocent person". The trial judge then concluded:
At bottom, whether a given instance of after the fact conduct has probative value with respect to an accused's level of culpability depends entirely on the specific nature of the conduct, its relationship to their record as [a] whole and the issues raised at trial.
In the context we are dealing with here, I am of the view that it is a matter for the jury to decide. After hearing the evidence and the explanation, if any, of the accused, as well as a cautionary instruction from the trial judge.
14The trial proceeded with the prosecution essentially calling the same evidence as it did in the first trial along with the evidence regarding the appellant's failure to attend for his original trial date. That evidence came from two police officers and a Crown Attorney and consisted of the fact that the appellant:
- had surrendered in April 2013;
- was granted bail;
- personally attended at his preliminary inquiry in January 2014;
- was subject to a surety warrant as of August 2014;
- failed to appear for his original trial date on May 25, 2015; and
- was arrested in Calgary on a separate matter and transported back to Ontario pursuant to a bench warrant in February 2016.
15At the conclusion of this portion of the evidence, the trial judge gave the jury a mid-trial instruction about after-the-fact conduct evidence. The mid-trial instruction was in the standard language contained in the specimen jury instructions. It concluded with the following:
As circumstantial evidence, evidence of after the fact conduct has only an indirect bearing on the issue of Mr. [J.M.]'s guilt. You must be careful about inferring that Mr. [J.M.] is guilty on the basis of evidence of after the fact conduct because there might be other explanations for that conduct, something unconnected with his participation in the offence charged. You may use this evidence of after the fact conduct along with other evidence to support an inference of guilt only if you had [ sic ] rejected any other explanation for this conduct.
16As in the first trial, the appellant did not call any evidence. The trial judge charged the jury on December 22, 2016. In terms of the after-the-fact conduct evidence, the trial judge instructed the jury in virtually the same terms as he did when he gave the mid-trial instruction. However, he concluded his instruction this time by saying:
You may use this evidence of after the fact conduct, along with other evidence, to support an inference of guilt only if you have rejected any other explanation for this conduct. On the other hand, if you find that Mr. [J.M.]'s failure to return to Ontario for his trial was related to the commission of the offences charged, not to something else, you may consider this evidence, together with all the other evidence in reaching your verdict.
17After approximately two hours of deliberation, the jury convicted the appellant of both counts of sexual assault.
B. ANALYSIS
18The only issue on this appeal is the trial judge's handling of the post-offence conduct evidence. In my view, the trial judge made two fundamental errors in that regard. The first revolves around the trial judge's decision to admit the evidence. The second has to do with how the trial judge instructed the jury on the use to which they could put this evidence, assuming it was properly admitted.
Admission of the Evidence
19On the first issue, before determining whether to allow the prosecution to lead this evidence, the trial judge had to conclude that the evidence was relevant to an issue that the jury had to decide. If the trial judge concluded that the evidence was relevant, then he also had to decide whether the probative value of the evidence was outweighed by its prejudicial effect.
20It was critical, to a proper decision on whether the evidence of the missed trial date ought to be admitted, for the trial judge to know the circumstances surrounding the appellant's failure to appear on that trial date. Central to those circumstances was the appellant's explanation for his failure to appear. Yet the trial judge refused to allow the appellant to give evidence on the voir dire, the whole purpose of which was to decide the admissibility question. Without hearing the appellant's explanation for his failure to attend, or at least a summary of the appellant's explanation from counsel, I am unable to understand how the trial judge purported to conduct a proper relevancy analysis or to properly exercise his discretion whether to admit the evidence.
21I appreciate that there is no rule regarding how a voir dire on the admissibility of evidence is to be conducted nor is there any requirement that viva voce evidence be heard: R. v. Kematch, 2010 MBCA 18, 252 C.C.C. (3d) 349, at para. 43; United States of America v. Anderson, 2007 ONCA 84, 219 O.A.C. 369, at para. 37. What is clear, however, is that before rendering a proper legal ruling, the trial judge must have the necessary factual foundation, in some form, on which to make an informed decision.
22I recognize that, had the trial judge conducted a proper voir dire, he might nonetheless have concluded that the evidence was relevant. That is not the end of the admissibility inquiry, however. There is still the question of whether the prejudicial effect of the evidence outweighs its probative value. That is a separate inquiry that the trial judge was obliged to consider. As Rothstein J. said in R. v. White, [2011] 1 S.C.R. 433, 2011 SCC 13, at para. 50 ("White (2011)"):
Otherwise admissible evidence may still be removed from consideration by the jury on the basis that it is more prejudicial than probative.
23The trial judge provided no such analysis in this case despite trial counsel's urging that he do so. Rather, he appears to have proceeded on the basis that, if the evidence was relevant, it was automatically admissible. That conclusion ignores the second stage of the admissibility inquiry. The failure to engage in that second stage is an error of law. Given the state of the record before us, I cannot reach a proper conclusion on that second stage, especially absent the appellant's evidence on the issue, or at least counsel's summary of what that evidence would have been. I do note, however, that the circumstances surrounding the appellant's failure to attend on his first trial date could certainly have a bearing on the probative value/prejudicial effect test. For example, if the appellant had been unable to attend the first trial date because of illness, that would cast a very different light on the probative value of the evidence.
24The probative value/prejudicial effect test is of particular importance when considering post-offence conduct evidence because of the recognized concern regarding its potential misuse by jurors. As Rothstein J. also said in White (2011), at para. 23:
That being said, though the use of such evidence has an extensive history in our criminal jurisprudence, it has also long been recognized that the introduction of post-offence conduct for the purpose of establishing the accused's "consciousness of guilt" carries with it a substantial risk of jury error. Jurors may be tempted to "jump too quickly from evidence of post-offence conduct to an inference of guilt" without giving proper consideration to alternate explanations for the conduct in question.
(Citations omitted)
25That concern might have been addressed if the jury had been properly instructed on the use to which they could put the evidence, but they were not. This is the second error, to which I now turn.
Instructions to the Jury
26The admissibility issue aside, I have concerns with the manner in which the trial judge dealt with this evidence before the jury. Having admitted the evidence, with all of its known risks, the trial judge had to be especially careful in terms of what he told the jury as to the use to which the evidence could be put. I conclude that the trial judge also failed in this respect.
27What the trial judge did in his instructions to the jury was give them the specimen form of instruction regarding post-offence conduct, although he did not give the complete specimen instruction. Rather, he gave an abbreviated version of it.
28I appreciate that trial judges are not slaves to specimen instructions. They are entitled to depart from the language of the specimen instructions as they deem necessary or to devise language of their own. What is crucial, however, is that the legal proposition that underlies the instruction must be recognized and communicated in a proper fashion and it must be related to the evidence. That did not happen in this case. Specifically, the trial judge did not advise the jury about any alternative explanations for the appellant's conduct. He failed to do so notwithstanding the express direction, in the specimen instruction, to "review relevant evidence about explanations".
29As a consequence, the trial judge did not provide any assistance to the jury as to how to weigh that post-offence conduct evidence in the context of the evidence as a whole. In particular, the trial judge failed to alert the jury to other explanations that there might be for the appellant's failure to appear at his first trial that were unrelated to the question of the appellant's guilt respecting the charges that he faced.
30The need to caution the jury that there might be alternative explanations for the impugned conduct has been made clear in a number of cases. The need for this caution was stressed in R. v. White, [1998] 2 S.C.R. 72 ("White (1998)"). For example, Major J. said, at para. 57:
As previously noted, there is a risk that juries might jump too quickly from evidence of post-offence conduct to an inference of guilt. However, the best way for a trial judge to address that danger is simply to make sure that the jury are aware of any other explanations for the accused's actions, and that they know they should reserve their final judgment about the meaning of the accused's conduct until all the evidence has been considered in the normal course of their deliberations.
(Emphasis added)
31To the same effect is the decision in R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5, where Feldman and Simmons JJ.A. said, at para. 136:
The trial judge must provide a clear cautionary instruction to the jury against drawing incriminating inferences from post-offence conduct without considering alternate explanations for the impugned conduct.
32On that point, there was evidence, albeit limited, before the jury regarding other explanations for the appellant's failure to appear on his first trial date. The defence entered into evidence the recognizance that the appellant had been granted on April 10, 2013. The defence also entered into evidence the order for committal dated August 21, 2014, that authorized the arrest of the appellant after his then girlfriend was relieved of her duty as his surety.
33These events were referred to by the appellant's counsel in his closing submissions when he said, in part:
And when my friend was discussing this, the one thing that he left out was Exhibit Number 2, that on August the 21st, 2014, that surety, that girlfriend, the person with whom he was supposed to live revoked. Meaning that Mr. [J.M.] would have to return to Ontario and surrender himself into jail, and perhaps sit in jail until the trial, unless a bail hearing or something transpired.
34The trial judge did not provide the jury with any alternative explanations. His charge is silent on this issue but for his summary of the Crown and defence positions. In terms of the Crown's position he said:
The position of the Crown is that this evidence should be considered by you that [J.M.] wished to avoid being tried on these charges and that [J.M.] possessed a guilty state of mind with respect to the charges that are before you.
On the defence position, the trial judge said:
Finally the after-the-fact conduct: Mr. [J.M.] always attended for court when he had a surety. His surety was revoked on August 21st, 2014. Exhibit two is a copy of the order for Mr. [J.M.]'s committal because of that surety revocation. [J.M.] was subject to arrest from August 21st, 2014 onward. Had he attended at the original trial date of May 25th, 2015, he was subject to being arrested on the spot. You may find that Mr. [J.M.]'s failure to attend his original trial date is explained by his not wanting to be arrested and committed to custody while allegations to which he has always pled not guilty remained before the court.
35After the trial judge completed his instructions to the jury, counsel for the appellant complained about the failure of the trial judge to put alternative explanations for the appellant's non-attendance to the jury, a complaint that counsel had also made during the pre-charge conference. The trial judge refused to alter his charge.
36In my view, the trial judge did not meet his obligation, as enunciated in both White (1998) and White (2011), to ensure that the jury was aware of, and considered, specific alternative explanations for the appellant's post-offence conduct. This failure arose first from his decision to bar the appellant from giving evidence on the voir dire. It then continued when the trial judge failed to fully obtain the alternative explanations and include them in his charge. The absence of these alternative explanations raised the very real risk that the jury would misuse the post-offence conduct evidence, which is precisely the concern that underlies the requirement for the necessary caution in the first place.
37The importance of providing the jury with the alternative explanations is highlighted by the decision in White (1998). In dismissing the appeal in that case, Major J., at para. 58, pointed with approval to the trial judge's instructions to the jury:
He reminded the jury that flight or concealment does not necessarily imply guilt, but can arise from any number of innocent motives, and he gave examples of such motives. He further instructed the jury that there might be "very valid reasons" for the appellants' conduct other than their guilt for Chiu's murder; again, he reviewed the alternative explanations put forth by the defence, namely the parole violations and the bank robberies.
(Emphasis added)
38In addition to these concerns, I would also note that the trial judge did not include in his charge to the jury the type of cautionary note that was discussed in White (1998) and White (2011) and was referred to, most recently, in R. v. Rodgerson, [2015] 2 S.C.R. 760, 2015 SCC 38. In Rodgerson, Moldaver J. commented favourably, at para. 25, on this particular aspect of the trial judge's charge:
I wish to caution you about a potential danger concerning post offence conduct. Post offence conduct may appear more probative than it really is, and may be, by its very nature, less reliable than it seems, or may be consistent with other less obvious explanations than the one advanced by Crown counsel.
[Emphasis in original]
39I do not agree with the suggestion that the trial judge's reference to the alternative explanation offered by the defence in closing submissions is sufficient, in this instance, to cure the problem. I say that for two reasons. One is the salient reality that explanations coming directly from the judge will carry more weight with the jury than will simply repeating what defence counsel has said. The other is that the reference itself was completely detached from the trial judge's original post-offence conduct instruction. Articulated in isolation, it did not serve to remind the jury that they could only use this evidence in relation to the guilt of the appellant if they rejected any other explanation for his conduct.
40The fact remains that the trial judge did not ensure that the jury was made aware of possible alternative explanations nor did he caution them that these alternative explanations might render the post-offence conduct evidence of minimal assistance, as the trial judge did in White (2011). As a result, the trial judge failed to "equip a jury with the tools needed to return a 'true' verdict in the specific case": R. v. Bailey, 2016 ONCA 516, 339 C.C.C. (3d) 463, at para. 42.
41Those points made, I am mindful of the fact that an accused person is entitled to a proper jury charge, not to a perfect one. As Lamer C.J.C. said in R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 2:
This Court has stated on repeated occasions that accused individuals are entitled to properly instructed juries. There is, however, no requirement for perfectly instructed juries.
[Emphasis in original]
42A properly instructed jury is key to a fair trial. In deciding whether the accused has received a properly instructed jury, the nature of the error is, therefore, of importance. As discussed in R. v. Khan, [2001] 3 S.C.R. 823, 2001 SCC 86, at para. 20, when dealing with the use of the curative proviso, errors that are harmless or minor, and which could not have had any impact on the verdict, are insufficient to require a new trial. In the same vein, errors that are serious but where the evidence is so overwhelming that no miscarriage of justice occurred also do not warrant a new trial.
43I do not view the errors in the jury charge in this case to fall within either of those exceptional categories. The second category is not engaged because the evidence was not overwhelming. The verdict turned entirely on the jury's view of the evidence of the two young complainants. More significantly, the first category is also not engaged. The failure to give a proper and complete instruction on the use of the post-offence conduct evidence is neither minor nor harmless. It was a serious error. As the decisions in White (1998) and White (2011), along with others, make clear, this type of evidence is particularly problematic and prone to misuse. It is a point that is well made in R. v. B. (S.C.), 36 O.R. (3d) 516, where Doherty and Rosenberg JJ.A. said, at p. 527 O.R.:
The admissibility of after-the-fact conduct is not without its risks. There is always the danger that the trier of fact will read too much into that behaviour. Conduct which is no more than unusual, rash or thoughtless can take on an unwarranted significance when viewed in hindsight at trial. The danger that after-the-fact conduct will be overemphasized by a trier of fact exists whether evidence of that conduct is offered by the Crown or the defence. That risk is best avoided by a judicious use of the power to exclude prejudicial evidence even though it has some probative value.
44The suggestion that the failure to deal with this evidence in the jury instructions can be excused on the basis of the "no harm, no foul" principle, is one that I do not accept nor, in my view, does it accord with the concerns respecting this type of evidence that are enunciated in the case law to which I have made reference.
45I would add one further observation. If post-offence conduct is properly admitted at trial, and that post-offence conduct by itself constitutes a criminal offence, then it seems to me that trial judges should consider, in appropriate cases, including the equivalent of a "bad character" instruction. In such cases, the jury would be additionally instructed that, even if they do not view the post-offence conduct as evidence tending to show the accused is guilty of the offence being tried, they must also ensure that they do not use the evidence to conclude that the accused person is the type of person who would have committed the offence: see R. v. Samuels, 2013 ONCA 551, 310 O.A.C. 175, at paras. 45-46. A brief limiting instruction, along the lines of the ones given when dealing with prior convictions of the accused person, could be included, such as:
It is very important that you understand that you must not use this after-the-fact evidence to decide, or to help you decide, that (NOA) is the sort of person who would commit the offence(s) charged or is a person of bad character and thus likely have committed the offence(s) charged.
I appreciate that the trial judge was not asked to provide that instruction in this case.
46In my view, the failure of the trial judge to properly deal with the post-offence conduct evidence gives rise to a very real concern whether the verdict was one based on the evidence properly evaluated. As a consequence, I am not satisfied that the appellant's trial was a fair one. The convictions therefore cannot safely stand.
C. CONCLUSION
47I would allow the appeal, set aside the convictions and remit the matter back to the Superior Court of Justice for a new trial.
Dissenting Opinion
48HUSCROFT J.A. (dissenting): — The appellant was found guilty by a jury of two counts of sexual assault against two young female complainants. He chose not to testify or call any evidence in his defence.
49This appeal is concerned solely with the admission of evidence of the appellant's post-offence conduct. My colleague concludes that the trial judge erred in admitting evidence that the appellant failed to appear at his first trial, and did not cure this error with a proper instruction to the jury. He concludes that the trial was unfair as a result and would order a new trial in this matter.
50With respect, I disagree. I would dismiss the appeal for the reasons that follow.
The Voir Dire
51Post-offence conduct evidence is simply a form of circumstantial evidence, albeit one that has frequently given rise to difficulties. Plainly, the appellant's failure to appear at his first trial was evidence from which an inference of guilt could be drawn.
52Nordheimer J.A. does not say that this inference could not be drawn, nor could he. It is one of the examples set out by the Supreme Court in R. v. White, [1998] 2 S.C.R. 72 ("White (1998)"), at para. 19, where Major J. wrote: "an inference of guilt may be drawn from the fact that the accused fled from the scene of the crime or the jurisdiction in which it was committed, attempted to resist arrest, or failed to appear at trial" (emphasis added). My colleague's concern is that the trial judge did not allow the appellant to testify on the voir dire before deciding to admit the evidence of his failure to appear.
53The trial judge was under no duty to hear viva voce evidence on the voir dire. Nordheimer J.A. acknowledges as much, but says that this case is different because in the absence of viva voce evidence from the appellant, or at least a summary of the appellant's anticipated evidence from counsel, the trial judge did not have the necessary factual foundation to make an informed decision on admissibility.
54I disagree. The trial judge was informed by the appellant's counsel that he sought to call evidence to establish that the appellant "failed to appear at his trial because of his surety revoking [and] just being in an emotional and financial dire straits". In my view, this short summary of the proposed evidence was sufficient in the circumstances to allow the trial judge to make an informed decision. Viva voce evidence was not required.
55The appellant does not say that had he been permitted to testify at the voir dire, the Crown's evidence would have been rendered inadmissible. Nor could he: at most, evidence from the appellant might have suggested another reasonable inference that could be drawn to explain his failure to appear for his first trial -- one not consistent with guilt. It would still be for the jury to decide on the basis of the evidence as a whole -- including any evidence the appellant chose to call in the trial proper -- whether that inference should be drawn: White (1998), at para. 27.
56I also do not accept that the trial judge failed to exercise his residual discretion to exclude the evidence. His reasons must be read as a whole and in the context of the parties' submissions, which clearly addressed the issue of possible prejudice.
57There is no basis to speculate, as Nordheimer J.A. does, that the probative value of the evidence concerning the appellant's failure to appear could have been cast in a different light had the appellant testified at the voir dire -- for example, if, as my colleague suggests, the appellant had testified that he was unable to attend the first trial because he was ill. The appellant did not suggest that he had such an excuse for failing to appear at his trial. Rather, his counsel advised the trial judge that the appellant sought to call evidence at the voir dire to establish that he "failed to appear at his trial because of his surety revoking [and] just being in an emotional and financial dire straits". This was evidence supportive of a competing inference, but it was for the jury to weigh.
58Ultimately, the trial judge determined that evidence of the appellant's failure to appear at his first trial was admissible and sought to minimize the possibility of prejudice with a caution to the jury. His decision is entitled to deference.
The Jury Instructions
59The appellant's failure to appear at his first trial is circumstantial evidence from which an inference of guilt may be drawn. As Watt J.A. explained in R. v. Rosen, 2018 ONCA 246, 361 C.C.C. (3d) 79, at para. 50:
It simply cannot be suggested that evidence of anything done or said by an accused after an offence has been committed gives rise to special rules of admissibility or mandates special warnings to border its use by the trier of fact. It is for the jury to say, on the basis of the evidence as a whole, whether the post-offence conduct is related to the crime charged rather than to something else and, if so, how much weight, if any, should be assigned to it in the final determination of the adequacy of the case for the Crown: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 105 and 137.
60The trial judge's mid-trial instruction properly informed the jury that it could "use this evidence of after-the-fact conduct along with other evidence to support an inference of guilt only if [it] rejected any other explanation for this conduct". The appellant did not testify or call any other evidence. As a result, the only evidence at trial supportive of the defence position regarding the post-offence conduct was that a committal order had been issued because his surety had revoked. The trial judge informed the jury of both the Crown and the defence positions concerning the appellant's post-offence conduct. I do not see what more was required.
61Nordheimer J.A. concludes that the trial judge's error at the voir dire "might have been addressed if the jury had been properly instructed on the use to which they could put the evidence, but they were not". Again, I disagree. In my view, the trial judge's charge was adequate in the circumstances and reveals no error.
62My colleague acknowledges that trial judges are "not slaves to specimen instructions", but, with respect, his decision suggests otherwise. He states that the trial judge failed to advise the jury about the alternative explanation for the appellant's conduct "notwithstanding the express instruction, in the specimen instruction, to 'review relevant evidence about explanations'". He concludes that the trial judge failed to give the jury any assistance about how to weigh the post-offence conduct evidence in the context of the evidence as a whole.
63Specimen instructions are a resource that trial judges are entitled to use in crafting their instructions to suit particular cases. As Doherty J.A. has explained"the adequacy of jury instructions is not measured against their conformity to the content of a model instruction": R. v. Bailey, 2016 ONCA 516, 339 C.C.C. (3d) 463, at para. 42; see, also, R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 116. Instead, as the Supreme Court has emphasized"appellate courts must adopt a functional approach to reviewing jury charges": R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 62. The question is whether the jury understands: (i) what factual issues need to be resolved; (ii) the law that is to be applied to those issues and the evidence; (iii) the positions of the parties; and (iv) the evidence relevant to the positions taken by the parties. There is no legal obligation to follow the specimen instruction and failing to do so does not in itself constitute legal error.
64The importance of cautioning the jury as to the possibility of alternative explanations for the appellant's failure to appear at his first trial is clear, but the trial judge was under no obligation to do so in a formulaic manner. The trial judge gave a mid-trial instruction that functionally tracked the language of the specimen instruction. He stated:
As circumstantial evidence, evidence of after-the-fact conduct has only an indirect bearing on the issue of Mr. [J.M.]'s guilt. You must be careful about inferring that Mr. [J.M.] is guilty on the basis of evidence of after-the-fact conduct. Because there might be other explanations for that conduct, something unconnected with his participation in the offence charged. You may use this evidence of after-the-fact conduct along with other evidence to support an inference of guilt only if you had [ sic ] rejected any other explanation for this conduct.
65I see no error in this. Nor do I see any error in the trial judge's instructions to the jury at the conclusion of the trial. The trial judge outlined the positions of the Crown and the defence concerning the alternative explanations for the appellant's failure to appear. In outlining the Crown position, he stated:
The position of the Crown is that this evidence should be considered by you that [J.M.] wished to avoid being tried on these charges and that [J.M.] possessed a guilty state of mind with respect to the charges that are before you.
66Concerning the defence position, he stated:
Finally, the after-the-fact conduct: Mr. [J.M.] always attended for court when he had a surety. His surety was revoked on August 21st, 2014. Exhibit two is a copy of the order for Mr. [J.M.]'s committal because of that surety revocation. [J.M.] was subject to arrest from August 21st, 2014 onward. Had he attended at the original trial date of May 25th, 2015, he was subject to being arrested on the spot. You may find that Mr. [J.M.]'s failure to attend his original trial date is explained by his not wanting to be arrested and committed to custody while allegations to which he has always pled not guilty remained before the court.
67Viewed from a functional perspective, the jury was properly equipped to decide what it had to decide. I note that the appellant did not request an instruction on discreditable conduct, and in my view none was necessary.
68Nordheimer J.A. concludes that the trial judge erred by failing to ensure that the jury was aware of, and considered, specific alternate explanations for the appellant's failure to appear for his first trial. I do not agree. The trial judge was required to "review relevant evidence about explanations" and he did so. It does not matter that he did so in the context of his review of the defence submissions. What matters is what the trial judge said -- not where in his instructions he said it -- and that what he said was clear. "You may find", he said"that [the appellant's] failure to attend his original trial date is explained by his not wanting to be arrested and committed to custody while allegations to which he has always pled not guilty remained before the court". That was a possible inference from this piece of evidence. In light of the evidence called at trial, it was the only competing inference that could have been drawn.
Conclusion
69I would dismiss the appeal.
Final Disposition
Appeal allowed.
Notes
1 As I noted earlier, the trial judge also gave a mid-trial instruction with respect to the post-offence conduct evidence. That instruction also omitted portions of the specimen instruction.
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