Regina v. Marks and Farrell [Indexed as: R. v. Marks]

48 O.R. (3d) 161

[2000] O.J. No. 1376

Docket Nos. C26532 and C24846

Court of Appeal for Ontario

Catzman, Carthy and O'Connor JJ.A.

May 1, 2000

Criminal law -- Evidence -- Character evidence -- Bad character of co-accused -- M and F charged with manslaughter and other offences arising from botched robbery attempt -- Permissible for F to lead evidence of M's bad character if jury is given proper limiting instructions -- Jury should have been told that it could consider M's bad character when determining if F was guilty but not when determining M's guilt -- Trial judge not giving required limiting instruction -- New trial ordered.

Criminal law -- Charge to the jury -- Character evidence -- Bad character of co-accused -- M and F charged with manslaughter and other offences arising from botched robbery attempt -- F testifying as to M's bad character -- Trial judge erring by failing to instruct jury that it could consider M's bad character when determining if F was guilty but not when determining M's guilt -- Failure of trial judge to give required limiting instruction may have been seriously prejudicial to M -- New trial ordered.

Criminal law -- Trial -- Witness -- Accomplice evidence -- Requirement for special warning regarding credibility of unsavoury Crown witnessess -- Chief Crown witness accomplice who may have implicated accused to avoid being charged himself -- Accomplice lying at preliminary hearing and working illegally using forged documents and false name -- Trial judge erring by failing to give warning to jury to view accomplice's evidence with great caution -- New trial ordered.

Criminal law -- Trial -- Jury -- Exhortation -- Jury claiming to have reached impasse -- Trial judge erring in calling on members of minority to give careful reconsideration to their position and to try to concur with majority if they could do so honestly -- New trial ordered.

M and F were convicted of manslaughter, conspiracy to commit robbery, possession of a weapon and wearing a disguise. They appealed, arguing that (a) the trial judge erred in failing to give the jury a strong warning with respect to the accomplice in accordance with R. v. Vetrovec; (b) the trial judge erred in failing to give a proper limiting instruction with respect to the evidence of M's bad character led by F; and (c) the trial judge erred in the manner in which he exorted the jury after they indicated that they were deadlocked.

Held, the appeal should be allowed.

In his testimony, F gave evidence of M's bad character in a number of respects. An accused is permitted to lead propensity evidence against his co-accused, but the jury should be told that it may consider evidence of the co-accused's disposition to commit the offence charged in deciding whether it has a reasonable doubt that the accused committed the offence, but that it must not use the evidence to find the co-accused guilty of the offence. Thus, the jury should have been told that it could use the evidence of M's bad character when assessing F's guilt, but that it could not be considered when determining if M was guilty of any offence. The trial judge neglected to give a limiting instruction, and this failure may have occasioned serious prejudice to M.

There were a number of reasons why the jury might have felt concern about the evidence of the principal Crown witness. This witness was an accomplice who had participated in a conspiracy to sell drugs in Ottawa, participated in this attempted robbery with the accused, and was working illegally using forged documents. The accomplice may have lied to avoid being prosecuted himself. The trial judge should have given the jury a warning to view his evidence with great caution in accordance with Vetrovec.

After deliberating for almost seven full days, the jury sent a note stating that they had reached an impasse. The trial judge provided the jury with an exhortation in which he called on members of the minority to give very careful reconsideration to their position and to concur with the majority if they could honestly bring themselves to do so. In suggesting that the majority was right and the minority wrong, the trial judge erred.

Although the Crown argued that the evidence was so overwhelming that the verdict would necessarily have been the same had the errors not been made, this is not an appropriate case for the application of the "proviso" pursuant to s. 686(1) (b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46.

APPEAL by the accused from convictions for manslaughter and other offences.

R. v. G. (R.M.), 1996 176 (SCC), [1996] 3 S.C.R. 362, 139 D.L.R. (4th) 193, 202 N.R. 1, 110 C.C.C. (3d) 26, 1 C.R. (5th) 199, apld Other cases referred to R. v. B. (F.F.), 1993 167 (SCC), [1993] 1 S.C.R. 697, 120 N.S.R. (2d) 1, 148 N.R. 161, 332 A.P.R. 1, 79 C.C.C. (3d) 112, 18 C.R. (4th) 261; R. v. Brooks (2000), 2000 SCC 11, 182 D.L.R. (4th) 513, 141 C.C.C. (3d) 321 (S.C.C.); R. v. N. (R.K.) (1996), 1997 1271 (ON CA), 32 O.R. (3d) 537, 114 C.C.C. (3d) 40 (C.A.); R. v. Suzack (2000), 2000 5630 (ON CA), 71 C.R.R. (2d) 1, 141 C.C.C. (3d) 449 (Ont. C.A.); R. v. Valentini (1999), 1999 1885 (ON CA), 43 O.R. (3d) 178, 132 C.C.C. (3d) 262 (C.A.)

David M. Tanovich, for appellant, Omar Marks. Murray H. Shore, for appellant, Mark Farrell. Lucy A. Cecchetto, for the Crown, respondent.

The judgment of the court was delivered by

CATZMAN J.A.: --

The Appeal

[1] The appellants appeal against their convictions for manslaughter, conspiracy to commit robbery, possession of a weapon and wearing a disguise arising out of events that resulted in the killing of Steven Tomlinson during a botched robbery attempt in Ottawa. They also ask leave to appeal the nine-year sentence imposed on the appellant Marks and the eight-year sentence imposed on the appellant Farrell.

The Grounds of Appeal

[2] At the opening of the appeal, counsel for the appellants abandoned two of their grounds of appeal:

(1) the Crown's closing address was unfair and occasioned a miscarriage of justice; and

(2) the trial judge erred in his instructions to the jury on the subject of reasonable doubt.

[3] They argued the following three grounds of appeal:

(3) the trial judge erred in the manner in which he exhorted the jury;

(4) the trial judge failed to give a proper instruction regarding bad character evidence elicited from the appellant Farrell in relation to the appellant Marks; and

(5) the trial judge erred in failing to give the jury a Vetrovec warning with respect to the evidence of the principal Crown witness.

[4] I have concluded that the appellants succeed on all three of the grounds of appeal against conviction, and that I need not deal with their appeal against sentence.

The First Ground: The Exhortation

[5] The jury commenced deliberations on April 17, 1996, and continued to deliberate for almost seven full days before rendering their verdict on April 23, 1996.

[6] Deliberations on the last day commenced at 9:30 a.m. Some time after noon, the jury sent a note that, following a thorough examination of all the evidence, they had reached an impasse, and that they did not feel that further re-examination of the evidence without guidance would resolve the impasse. At 12:19 p.m., the trial judge provided the jury with an exhortation. At 12:52 p.m., the jury advised that they were would resume deliberations after lunch. At 4:07 p.m., the court was advised that the jury had reached a verdict.

[7] The impugned portions of the exhortation fell into two categories. The first involved Rutherford J.'s comments regarding failure to reach a verdict; the second and, in my view, the more significant, involved his comments regarding the majority and the minority views of the jury.

(a) Failure to reach a verdict

[8] In his charge to the jury on April 17, 1996, Rutherford J. had said:

And when I say you must be unanimous, it is the right of a jury to find ultimately -- and it occasionally happens -- that they simply can't agree.

I don't want to invite you to think much about that because I can't imagine how any other jury could be in any better position than you are to complete this trial by reaching unanimous verdicts on the charges, and I know you will do the best to come to that agreement.

The trial has involved considerable time and resources, and the community and the persons involved in here and everyone counts on you to do your best to reach unanimous verdicts.

[9] In his exhortation to the jury on April 23, 1996, he said:

If you are unable to reach a unanimous verdict on one or more or indeed all of the counts, that count or those counts will have to be retried before another jury. Although I cannot see how any other twelve people will be in any better position than you are to reach a unanimous verdict.

Before coming to the conclusion that any such retrial will be required in this case, I'm going to ask you to retire and try a little longer.

[10] Mr. Tanovich submitted that these instructions introduced irrelevant and extraneous considerations into the jury deliberations and ran afoul of the principles enunciated in R. v. G. (R.M.), 1996 176 (SCC), [1996] 3 S.C.R. 362, 110 C.C.C. (3d) 26. If these were the only complaints made against the exhortation, I would not accede to the appellants' argument. The quoted passages did not, as the exhortation in R. v. G. (R.M.) did, advert to the expense, hardship and inconvenience of a second trial and were, in my view, a relatively benign admonition regarding the task the jurors were to perform.

(b) The majority and minority views of the jury

[11] At three places in his exhortation, Rutherford J. adverted to the views held by the minority of jurors in their deliberations. In sequence, he said:

If any one or more of you finds yourself in a small minority, disposed to differ from the views of the rest, I would ask that you give very careful reconsideration to your position and weigh the reasons for and against the view that you have taken so far. You should remember that it is possible that you are wrong in your view. If upon careful consideration you can honestly bring yourself to a different view and thus concur with the majority, you should do so.

Continue your deliberations, in the course of which I ask, as I have said, that any one or more of you that find yourself holding views that constitute a minority against a substantial majority, if that be the case -- I don't know -- if that be the case, I would ask the holder or holders of the minority views to do what I've said.

Weigh very carefully the reasons for and against your position and have a good look at them and reconsider the position and the reasons for it and see whether within the process of seeking agreement through the combined wisdom and experience of you all, and within the scope of your sworn duty, you can honestly bring yourself to concur with the majority.

[12] These instructions run directly counter to the principles outlined in R. v. G. (R.M.), at p. 392 S.C.R., p. 38 C.C.C. and to the view expressed by Cory J. at p. 384 S.C.R., p. 42 C.C.C.:

In my view, it would be preferable for a trial judge to avoid putting the situation in confrontational terms of opposing sides. Rather the exhortation should appeal to the individual jurors to once again reason together. At the very least, if such a suggestion is made, it must state that both sides should listen to each other and consider the opinion of others. If that is not done, the jury may quite rightly assume that the trial judge is directing them that the majority opinion is right simply because it is the view of the majority and that the minority should no longer try to convert the majority to their point of view.

[13] If anything, Rutherford J.'s exhortation in the present case went even further than the exhortation disapproved in R. v. G. (R.M.). That exhortation, as Cory J. indicates, implicitly suggested to the jury that the majority was right and the minority wrong; the exhortation in the present case, in the first of the three passages set out above, expressly suggested that possibility.

The Second Ground: The Bad Character Evidence against Marks

[14] It was the theory of the Crown that the appellant Farrell, in the presence of the appellant Marks, shot the deceased during a botched robbery that both of them were attempting to commit. Farrell testified at the trial. Marks did not.

[15] In his testimony, Farrell gave evidence of Marks' bad character in a number of respects. He testified that:

(a) Marks was a drug dealer;

(b) Marks owned an automatic gun which Farrell had seen in Marks' possession;

(c) after the shooting, the two were at a wake and Farrell saw Marks fire a gun at a car that was leaving the house;

(d) four months after the shooting, a pair of pants and gloves, on which an expert found gunshot residue, were seized from the apartment of Marks' girlfriend; and

(e) about two years before the shooting, Marks assaulted his pregnant girlfriend by punching her in the face and kicking her in the chest and stomach.

[16] No instruction was given to the jury with respect to the use that they could make of this evidence.

[17] Where evidence of bad character is tendered by the Crown, the jurors must be instructed that they may not infer from such evidence that the accused is guilty because he is the sort of person likely to commit the offences for which he is being tried: R. v. B. (F.F.), 1993 167 (SCC), [1993] 1 S.C.R. 697 at pp. 733-35, 79 C.C.C. (3d) 112 at pp. 138-39; R. v. N. (R.K.) (1996), 1997 1271 (ON CA), 32 O.R. (3d) 537 at p. 545, 114 C.C.C. (3d) 40 at p. 47 (C.A.). Unlike the Crown, an accused person is permitted to lead propensity evidence against his co-accused and, in such a case, the usual instruction has limited application: R. v. Valentini (1999), 1999 1885 (ON CA), 43 O.R. (3d) 178 at p. 188, 132 C.C.C. (3d) 262 at p. 279 (C.A.). Where an accused leads evidence of his co-accused's propensity for violence, a proper balance of the competing interests requires that the jury be told how it can use the evidence in considering the case of the accused and how it cannot use the evidence in considering the case of the co-accused: R. v. Suzack (2000), 2000 5630 (ON CA), 141 C.C.C. (3d) 449, 71 C.R.R. (2d) 1 (Ont. C.A.). In such a case, the jury should be told that it may consider evidence of the co-accused's disposition to commit the offence charged in deciding whether it has a reasonable doubt that the accused committed the offence, but that it must not use the evidence to find the co-accused guilty of the offence. A specimen instruction is set out in Suzack, at p. 490.

[18] In the present case, the jury should have been instructed that it might consider the evidence of Marks' disposition to commit the offences charged against him in deciding whether it had a reasonable doubt that Farrell committed them, but that it must not use evidence of Marks' disposition to find him guilty of them. Although no such instruction was requested, and no objection was made to the trial judge's failure to give such an instruction, I agree with Mr. Tanovich that the difficulty of the legal application of this evidence was such that the failure to give the necessary instruction may have occasioned serious prejudice to the appellant Marks.

The Third Ground: No Vetrovec Warning

[19] The principal Crown witness was Hugh Wilkins, known by his street name of "Jimbo". Jimbo drove with the appellants from Toronto in a stolen car in order to assist them in consummating a sale of illegal drugs to a purchaser in Ottawa with whom he was to put them in contact. Rutherford J. described Jimbo in his charge to the jury in these words:

The Crown's case against the two on all the counts is essentially based on the account of what happened as given by Jimbo. The central evidence, I suggest, in the case of the Crown is Jimbo's description of the purpose and the manner by which the three of them came to Ottawa, and when it comes to the actual incident in which Tomlinson was shot, the Crown relies specifically on the description of Jimbo of the other two going in for the express purpose of robbing the occupants, taking masks and guns with them.

[20] No Vetrovec warning was given to the jury with respect to Jimbo's evidence against the appellants. While Rutherford J. did describe Jimbo as "a participant in this gang of three that came to Ottawa to do something illegal", he said only this on the subject of "unsavoury witnesses":

You have to examine each witness, and some of them you have good cause to examine rather carefully. The more unsavoury the character, particularly insofar as characteristics that you may have noted about them that go to their integrity and the likelihood of telling the truth, are factors for you to take into account. The witnesses who had criminal record information that was brought out about them, or had been involved in illegal activities even if not convicted for, that was brought out to try to bring to your attention that these people maybe aren't trustworthy people. If they do things that we in civilized society think shouldn't be done, maybe they are prepared to tell you under oath things that aren't true, and particularly when you look at the criminal records of any of the people that gave evidence you should ask yourselves, more in relation to records for offences that go to integrity and honesty whether that has a bearing and whether you can rely or to what extent you can rely on their evidence.

[21] There were a number of reasons why the jury might have felt concern about Jimbo's evidence. He was an accomplice, who participated in the conspiracy to sell drugs in Ottawa; he was a participant in the robbery; he had falsely deposed at the preliminary inquiry that he had no criminal record; he was working illegally in Canada, using his brother's name and a forged passport; and he may have implicated the appellants in the crimes in an effort to ensure that he would not be charged as well.

[22] The recent decision of the Supreme Court of Canada in R. v. Brooks (2000), 2000 SCC 11, 141 C.C.C. (3d) 321, 182 D.L.R. (4th) 513, dealt with the question of the failure of a trial judge to provide a Vetrovec warning with respect to the danger of relying on the testimony of two jailhouse informants to whom the accused had allegedly made inculpatory admissions. Both Bastarache J., writing for himself, Gonthier and McLachlin JJ., and Major J., writing for himself, Iacobucci and Arbour JJ., quoted from the same passage of an article written by Marc Rosenberg on the subject of the relationship between the importance of the impugned evidence and the necessity to give the appropriate warning. As Major J. said, at p. 347:

I agree with the view expressed in "Developments in the Law of Evidence: The 1992-93 Term" (1994), 5 S.C.L.R. Rev. (2d) 421. The author, Marc Rosenberg (now Rosenberg J.A.), concluded that Vetrovec and Bevan require the trial judge to focus on two different elements of the case in determining whether or not a warning is necessary. At p. 463 he stated:

The judge should first in an objective way determine whether there is a reason to suspect the credibility of the witness according to the traditional means by which such determinations are made. This would include a review of the evidence to determine whether there are factors which have properly led the courts to be wary of accepting a witness's evidence. Factors might include involvement of criminal activities, a motive to lie by reason of connection to the crime or to the authorities, unexplained delay in coming forward with the story, providing different accounts on other occasions, lies told under oath, and similar considerations. It is not then whether the trial judge personally finds the witness trustworthy but whether there are factors which experience teaches that the witness's story be approached with caution. Second, the trial judge must assess the importance of the witness to the Crown's case. If the witness plays a relatively minor role in the proof of guilt it is probably unnecessary to burden the jury with a special caution and then review the confirmatory evidence. However, the more important the witness the greater the duty on the judge to give the caution. At some point, as where the witness plays a central role in the proof of guilt, the warning is mandatory. This, in my view, flows from the duty imposed on the trial judge in criminal cases to review the evidence and relate the evidence to the issues.

[23] In the present case, there was reason to suspect the credibility of Jimbo who, as the trial judge noted, played a central role in the proof of the appellants' guilt, and a Vetrovec warning should have been given to the jury to approach his evidence with great caution.

Conclusion

[24] Although the Crown's factum invited us to do so, I am unable to conclude that there is no reasonable possibility that the verdict at trial would not have necessarily been the same if the errors identified in these reasons not been made.

[25] Accordingly, I would allow the appeals against conviction, set aside the convictions and order a new trial.

Appeal allowed.