COURT OF APPEAL FOR ONTARIO

DATE: 20000622

DOCKET: C30203

MCMURTRY CJO., GOUDGE AND BORINS JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN
(Respondent)

and

JOSEPH POIRIER
(Appellant)

James Stribopoulos
for the Appellant

Desmond E. McGarry
for the Respondent

Heard: June 6, 2000

On appeal from the conviction by Keenan J. with a jury dated

January 27, 1998.

BORINS J.A.:

[1] The principal issue raised on this appeal is whether the

trial judge erred, in answering a question from the jury, by

telling them only that there was no evidence in respect to the

point raised by the question. It is the position of the

appellant that in the circumstances of this appeal a more

comprehensive answer was required, as well as a limiting

instruction.

Factual background

[2] The appellant was jointly charged with Seth Martin and Ryan

O’Reilly with the commission of an aggravated assault on Lawrence

Bent by wounding him. Each of the accused was convicted.

[3] The assault took place at about 11:00 p.m. in downtown

Toronto. Bent testified that as he walked along a laneway he was

chased and surrounded by the three accused men and a fourth man,

who was a young offender. He stated that Martin asked him if he

had asked them whether they were smoking crack, to which he

replied that he had not done so. This was followed by Martin,

without any warning, punching Bent in the mouth, causing him to

fall backwards to the pavement. Bent said he was then kicked

several times by Martin and, to a lesser extent, by O’Reilly.

The incident ended when the four men ran northbound through the

laneway.

[4] As for the appellant’s role in the assault, Bent testified

that he stood two or three feet away and did not take part in the

assault. However, Bent testified that the appellant was one of

the group that chased him down the laneway and surrounded him so

that he had “no option but to stay there”. As well, Bent did not

hear the appellant say anything to the men who assaulted him.

[5] Martin and O’Reilly testified and gave a different account

of what occurred. They described Bent approaching them with an

offer of drugs in return for sex. As Martin turned toward Bent

and said “What?”, Bent reached out and grabbed Martin’s

testicles. As a result, Martin punched Bent in the mouth. It

was a rather hard blow and it caused him to fall backwards.

Martin and O’Reilly denied kicking Bent while he was on the

ground. After Bent stood up, the four men ran way and were

apprehended by police officers who were in the area.

Proceedings at trial

[6] Although Martin and O’Reilly testified, the appellant did

not. It was the Crown’s position, relying on s. 21(1)(b) of the

Criminal Code that the appellant was a party to the offence

because he was a member of the group that chased, and surrounded,

Bent.

[7] About three hours after the jury had retired to consider its

verdict it returned with a written question. Although the

written question did not become part of the record, it is

apparent from what the trial judge said to counsel that this was

the question:

We request clarification regarding the
first time any of the accused informed the
police that Mr. Bent grabbed Mr. Martin by
the testicles. By first time, we mean at the
time of arrest or preliminary hearing. Is
there any answer other than there is no
evidence at all?

[8] Counsel agreed that the appropriate answer to the question

was that there was no evidence, and the trial judge answered the

question as follows:

THE COURT: Thank you, members of the
jury. I have your question, which I have
read and discussed with counsel. Your
question is the jury requests clarification
regarding the first time any of the accused
informed the police that Mr. Bent grabbed Mr.
Martin by the testicles, and your subnote
says, by first time we mean at the time of
the arrest or preliminary hearing. Members
of the jury, I can answer your question only
by saying there is no evidence on that point.
All right, you may retire.

About one hour later the jury returned with its verdict by which

it found each of the three accused guilty.

[9] Subsequently, in the course of his reasons for sentence, the

trial judge placed his own interpretation on the jury’s question.

He stated:

In imposing a sentence in this case, I
have to consider what was the nature of the
offence and how was it committed. Mr. Laan,
in the course of his submissions, said we
don’t know what the jury decided. I
disagree. I have not the slightest doubt
that the jury decided that this was a swarm
by four youths with the intention of beating
up a passing pedestrian. For whatever
reason, we can never be sure. We do know,
however, that is what happened. We do know,
as well, that the jury rejected the defence
that was advanced by two of the accused
[Martin and O’Reilly]
It is my view that the question posed by the
jury during the course of their
deliberations, for which I was not able to
give an answer, was very instructive. The
jury concluded that the defence presented was
a carefully, crafted defence that opened the
only possible defence where identity
essentially could not be otherwise deflected
or reflected. It was a recent fabrication in
order to avoid responsibility. [Emphasis
added.]

[10] With respect to the trial judge’s observation that the

defence raised was a “recent fabrication” he no doubt had in mind

Martin’s evidence that Bent had grabbed him by the testicles. I

would observe, however, that the trial judge had not instructed

the jury concerning the probative value of a recently concocted

explanation. See, e.g., R. v. Coutts (1998), 1998 4212 (ON CA), 126 C.C.C. (3d) 545

(Ont. C.A.), leave to appeal refused [1998] S.C.C.A. No. 450.

However, as I explain subsequently, it was not open to the Crown

to invite the jury, in assessing Martin’s credibility, to rely on

the argument that Martin had recently fabricated, or concocted,

his account of how the incident occurred.

[11] It would appear that there was some evidence to which the

trial judge could have referred, assuming that there was any

relevance to the question from the jury. When Martin was cross-

examined by the Crown, the following exchange took place after he

explained what had occurred:

Q. Well, you knew from your, one of
your close friends, sir, what he was talking
to him about. Why did you stick around close
enough to let Mr. Bent touch you in this way?
A. I, I can’t really answer that.
I think I’ve answered it to the best of my
ability. It happened fast. I asked him,
“What?” and he, he proceeded to do what he
did.
Q. I’m going to suggest to you, sir,
the reason you can’t answer that is because
it didn’t happen that way; isn’t that right,
sir?
A. No; you’re wrong.
Q. I’m going to suggest to you, sir,
that you invented this grab by the
complainant to justify punching him in the
face, isn’t that right?
A. That’s not right.

[12] Martin was then cross-examined about his arrest close to the

scene of the incident while he was hiding in a bush and about the

cause of a wound to his right hand. The cross-examination

continued:

Q. And I’m going to suggest to you,
sir, that you knew that things did not look
good for you in that position?
A. Um –
Q. And so you decided to concoct the
story about the complainant grabbing you in
the way that he does – in the way that you
say that he did?
A. No. See, I don’t trust police.
Police never been very nice to me. I have
done some wrong things but police are not
nice to me. I’ve been beaten up and stuff.
You know, everybody thinks police are good
people but there’s a lot of bad police that
beat you up and do things, so I don’t
consider them there to serve and protect me.
So I don’t talk to them or trust them and I
run from them.

Analysis

[13] In R. v. S. (W.D.) (1994), 1994 76 (SCC), 93 C.C.C. (3d) 1 (S.C.C.) Cory J.

considered the significance and importance of questions from the

jury. He stated at pp. 6-7:

The importance of giving a full and
proper response to questions from the jury
has been recognized by this court on a number
of occasions. In R. v. W. (D.) (1991), 63
C.C.C. (3d) 397 at pp. 410-1, [1991] 1 S.C.R.
742, 1991 93 (SCC), 3 C.R. (4th) 302, the following was
stated on behalf of the majority:
When a jury submits a question, it gives a
clear indication of the problem the jury is
having with a case. Those questions merit
a full, careful and correct response. As