Regina v. McNeill [Indexed as: R. v. McNeill]

48 O.R. (3d) 212

[2000] O.J. No. 1357

No. C29218

Court of Appeal for Ontario

McMurtry, C.J.O., Moldaver and Goudge JJ.A.

April 13, 2000

Criminal law -- Trial -- Circumstantial evidence of guilt -- Accused allegedly giving false evidence -- Trial judge erring in instructing jury that if they found accused's evidence false this could be used as positive evidence of guilt -- Absent independent proof of fabrication jury could not use false evidence as proof of guilt -- New trial ordered.

Criminal law -- Trial -- Conduct of Crown -- Crown asking police officer if accused provided statement -- Jury instructed that question was improper and that no adverse inference could be drawn from relying upon right to remain silent -- Accused testifying that he had policy of never giving pre-trial statements -- Crown then cross-examining accused regarding exculpatory statement he had given in earlier proceedings in which the charges were then withdrawn -- Cross-examination improper -- Trial judge erring by failing to instruct jury that they could not infer that accused was likely to give statement if innocent but not if guilty -- New trial ordered.

Charter of Rights and Freedoms -- Fundamental justice -- Fair trial -- Right to remain silent -- Crown asking police officer if accused had provided statement -- Jury instructed that question was improper and that no adverse inference could be drawn from relying upon right to silence -- Accused testifying that he had policy of never giving pre-trial statements -- Crown then cross-examining accused regarding exculpatory statement he had given in earlier proceedings in which the charges were then withdrawn -- Cross-examination improper -- Trial judge erring by failing to instruct jury that they could not infer that accused was likely to give statement if innocent but not if guilty -- New trial ordered.

Criminal law -- Trial -- Conduct of Crown -- Credibility -- Crown counsel leading evidence which suggested that Crown witness B had testified at unrelated preliminary hearing -- B denying testifying in that proceeding -- In closing address Crown suggesting that B had testified and that he must have been believed as accused in unrelated matter had been convicted -- No evidence that B had testified in other matter -- Irrelevant whether another jury had believed B's evidence -- Instruction by trial judge that jury should draw no inference from fact accused was convicted in other matter insufficient to repair damage by improper comments by Crown -- New trial ordered.

Criminal law -- Trial -- Duty to cross-examine witness pursuant to s. 11 of Canada Evidence Act -- Defence counsel failing to cross-examine Crown witness about alleged prior inconsistent statement by witness -- Crown cross-examining accused regarding defence counsel's failure to put statement to witness -- Improper to let jury infer that accused responsible for his counsel's failure to cross-examine -- Charge to jury leaving impression that witness and Crown unfairly left without ability to explain prior inconsistent statement -- New trial ordered.

The accused was charged with assault with a weapon, kidnapping, unlawful confinement, aggravated assault, extortion, using a firearm in the commission of an indictable offence and pointing a firearm. The victim was asleep in a motel room with his wife and a friend when two men entered the room and assaulted and kidnapped him. He was taken to a farmhouse, tied to a chair and beaten. One of his toes was severed with a pair of hedge clippers. Two of the people involved in the kidnapping were B and G, both of whom testified as Crown witnesses. B testified that he was retained by the accused to collect a drug debt from the victim, that he and the accused went to the victim's motel room, that they both beat the victim while he was tied to a chair at the farmhouse and that the accused severed the victim's toe. G essentially confirmed B's account. The victim's wife and friend also testified for the Crown and confirmed that the accused was present with B and that he actively participated in the beating and abduction of the victim. B and G were involved in the drug subculture; they and the victim's wife (as well as the victim) had lengthy criminal records. The police made deals with the victim, his wife, B and G to procure their co-operation.

The accused was convicted. He appealed, submitting that the trial judge made several errors in his charge to the jury and that Crown counsel engaged in improper conduct that rendered the trial unfair.

Held, the appeal should be allowed.

The trial judge erred in instructing the jury that if the accused's evidence was found to be a fabrication put forward to deceive, the jury could use that finding as positive evidence of guilt. Rejection of an accused's evidence can only be used as circumstantial evidence of guilt where there is independent evidence of concoction. There was no independent evidence of concoction in this case. It was at least conceivable that the jury followed the impugned instruction, made a finding of fabrication and used that finding to tip the scales against the accused. It could not be said that the verdict would necessarily have been the same had the jury not been misdirected.

In her examination-in-chief of a police officer, Crown counsel asked the witness if he ever obtained a statement from the accused. The officer replied that he had not. The trial judge told the jury that the question should not have been asked as everyone has the right to remain silent and there is nothing untoward about relying on that right. During the accused's examination-in-chief, defence counsel asked the accused if he gave the police any statement. The accused replied that he had a policy of not making statements to the police. Crown counsel then cross-examined the accused at great length about a prior occasion when he was arrested for breaking and entering and provided an exculpatory statement to the police which resulted in the charge being withdrawn. This cross-examination was permissible to discredit the accused. The evidence, however, could not be used to show that he was the type of person who provided exculpatory statements if innocent but not if guilty, and a limiting instruction to this effect was required. In his charge, the trial judge specifically warned the jury not to draw an adverse inference against the accused for having exercised his right to remain silent. He did not, however, instruct the jury on the use that could be made of the accused's evidence concerning the exculpatory break and enter statement, nor did he tell the jury how that evidence could not be used. The trial judge was obliged to tell the jury that they could only use the evidence to assess the accused's credibility and not to show that he was the type of person likely to provide statements if innocent but not if guilty. The trial judge's failure to give the appropriate limiting instruction constituted error.

In his examination-in-chief of the accused, defence counsel asked whether he had spoken to B after the incident in question. The accused answered in the affirmative and went on to state that B had told him that the offence was committed at the behest of another person and that it had nothing to do with the accused. Defence counsel did not question B about this conversation as he was obliged to do under s. 11 of the Canada Evidence Act, R.S.C. 1985, c. C-5 if it was his intention to lead evidence of a prior statement inconsistent with B's testimony. Crown counsel, instead of raising the issue with the trial judge in the absence of the jury, confronted the accused with the fact that defence counsel had not questioned B about the purported conversation at the preliminary hearing or at trial. This line of questioning was improper because it was capable of leaving the jury with the impression that the accused should be held responsible for what may have been a tactical decision or mere oversight on the part of defence counsel. The trial judge's instructions to the jury on this issue were not sufficient to overcome any prejudice occasioned to the accused. To the extent that the jury understood those instructions to relate to defence counsel's failure to question B about the purported conversation, the trial judge left the jury with the impression that B (and inferentially the Crown) was left in the impossible position of being unable to explain the situation. That was both inaccurate and misleading. Had Crown counsel wished to have B's explanation before the jury, she could have sought permission to have him recalled. Second, although the jury was instructed on the use that could be made of defence counsel's failure to question B, they were not told that the accused should not be held responsible for what may have been a tactical decision or mere oversight on the part of defence counsel.

Defence counsel cross-examined B with a view to showing that he had testified in the past as a Crown witness in exchange for favourable treatment. B was shown a transcript of a 1990 preliminary inquiry in relation to two individuals charged with murder. In the transcript, a person with the same name as B testified that he was present when the two accused cut off the victim's toes and killed him. He also testified that he had agreed to co-operate with the authorities in exchange for the withdrawal of weapons charges. B denied being the person in the transcript. Crown counsel admitted that B did testify in the earlier case and that the transcript was accurate. In her closing address, she sought to restore B's credibility by suggesting to the jury that they had to assume that B's evidence was believed on the previous occasion because the two people charged with murder had been convicted. That suggestion was improper. There was no evidence that B even testified at the trial in that case. Moreover, even if he did testify at trial, it was pure speculation to conclude that he was believed. Finally, even if B was believed by another jury, this was a completely irrelevant consideration and the jury ought not to have been invited to take it into account. While the trial judge told the jury that there was no evidence that B had testified at the trial, he should have gone further and instructed the jury that they were to take nothing from the fact that the two men were convicted. Absent this instruction, the jury may well have concluded that B was telling the truth at the preliminary inquiry in 1990 and that his evidence in this case could therefore be safely relied upon.

This was not an appropriate case for the application of the proviso. It could not be said that the verdict would necessarily have been the same despite the legal errors and inappropriate conduct of Crown counsel.

APPEAL by the accused from a conviction for assault with a weapon, kidnapping, unlawful confinement, aggravated assault, extortion, using a firearm in the commission of an indictable offence and pointing a firearm.

Cases referred to Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.); R. v. Coutts (1998), 1998 4212 (ON CA), 40 O.R. (3d) 198, 126 C.C.C. (3d) 545, 16 C.R. (5th) 240 (C.A.) [leave to appeal to S.C.C. refused (1999), 239 N.R. 193n, 131 C.C.C. (3d) vi]; R. v. Henderson (1999), 1999 2358 (ON CA), 44 O.R. (3d) 628, 134 C.C.C. (3d) 131 (C.A.); R. v. P. (G.) (1996), 1996 420 (ON CA), 112 C.C.C. (3d) 263, 4 C.R. (5th) 36 (Ont. C.A.); R. v. Verney (1993), 1993 14688 (ON CA), 87 C.C.C. (3d) 363 (Ont. C.A.); R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 46 O.A.C. 352, 122 N.R. 277, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302 Statutes referred to Canada Evidence Act, R.S.C. 1985, c. C-5, s. 11

James Lockyer and P. Andras Schreck, for appellant. Michal Fairburn, for the Crown, respondent.

The judgment of the court was delivered by

[1] MOLDAVER J.A.:-- The appellant was tried by the Honourable Mr. Justice Browne and a jury on a multi-count indictment consisting of the following offences: assault with a weapon, kidnapping, unlawful confinement, aggravated assault, extortion, using a firearm in the commission of an indictable offence and pointing a firearm. All of the offences arose out of a single incident involving the complainant, Robert Cudney, a drug dealer and addict who owed money to the appellant and others.

[2] The appellant was found guilty on all counts and sentenced to a term of imprisonment totalling nine years. He appeals from conviction and seeks a new trial.

[3] In broad terms, the appellant submits that the trial judge committed several errors in his charge to the jury and that Crown counsel (not Ms. Fairburn) engaged in improper conduct that rendered the trial unfair and resulted in a miscarriage of justice. For reasons which follow, I am of the view that the charge contains two errors of significance. I am also satisfied that on two occasions, once during cross- examination of the appellant and once in her closing address, Crown counsel engaged in improper conduct that was prejudicial to the appellant and compromised his right to a fair trial. It follows, in my view, that the convictions cannot stand and a new trial must be ordered. Accordingly, I do not propose to review the evidence in detail except where necessary to flesh out a particular issue.

Overview

[4] On June 17, 1995, Robert Cudney was sleeping in a motel room with his wife Dorothy and a friend Kate Cajander. Two men entered the room during the night. They assaulted Cudney and kidnapped him.

[5] Cudney was placed in the trunk of a car driven by a third person and taken to a farmhouse. In the basement of the farmhouse, he was tied to a chair and beaten with various objects, including a rifle, following which the middle toe of his right foot was severed with a pair of hedge clippers.

[6] Cudney was then driven back to the motel and released. A short time later, he went to the hospital for treatment. According to the medical evidence, his injuries were serious and life threatening.

[7] It was common ground that two of the three people involved in the kidnapping were Emanuel Bonello and William Garner, both of whom testified as Crown witnesses.

[8] Bonello testified that he was retained by the appellant to collect a drug debt from Cudney. He said that on the night in question, after learning Cudney's whereabouts, he and the appellant went to the Americana Motel. After gaining entry into the room, they subdued and assaulted Cudney. The appellant placed a call from the motel room to his roommate Garner and Garner drove to the motel. Cudney was forced into the car and driven to the farmhouse where the appellant and Garner lived. En route, he was placed in the trunk of the car. At the farmhouse, Cudney was removed from the trunk and a large bag was placed over his head. He was then taken to the basement, tied to a chair, and beaten by Bonello and the appellant. The appellant then asked Garner to retrieve a pair of hedge clippers and Bonello and the appellant used the clippers to cut off the middle toe of Cudney's right foot. Shortly thereafter, Cudney was returned to the motel and released.

[9] Garner's version of the events essentially dovetailed with Bonello's account. Cudney's wife Dorothy and Kate Cajander also testified for the Crown. Each confirmed that the appellant was present with Bonello at the motel room and that he actively participated in the beating and abduction of Cudney.

[10] Bonello and Garner were involved in the drug subculture in London, Ontario. They, as well as Cudney and his wife, had lengthy criminal records. The appellant also had a lengthy criminal record and was well known to the London police. Indeed, after learning of the Cudney incident on July 5, 1995, Detective Heslop and Constable Allen, the investigating officers, targeted the appellant as a prime suspect before interviewing any of the eyewitnesses. They then made "deals" with Cudney, his wife, Bonello and Garner to procure their co- operation.

[11] Cudney and his wife first implicated the appellant in August 1995 when the police offered to withdraw charges against members of their family. When Bonello and Garner were arrested, they too offered to implicate the appellant in exchange for reduced sentences and other benefits. The only Crown witness who did not receive a benefit was Kate Cajander.

[12] In her initial statement to the police, Ms. Cajander did not implicate the appellant. She later made a second statement identifying the appellant as one of the men responsible for Cudney's abduction. She testified that she knew the appellant was in the motel room because she heard others refer to him by name and swore that she had mentioned this in her videotaped statement to the police. Crown counsel acknowledged that this was not so and Cudney himself testified that nobody referred to the appellant by name while he was in the motel room. Given that Ms. Cajander had only seen the appellant once before the night in question and twice thereafter, her ability to recognize the appellant as one of the abductors was a live issue.

[13] The appellant testified and denied any involvement in the abduction of Cudney. He was not charged in relation to the incident until August 1995 and by that point, he had no recollection of his whereabouts on the night of June 18. He attributed this in part to the fact that he had no reason to recall his activities on that night because he was not involved in the abduction. Moreover, given his lifestyle as a heavy crack cocaine user, one day flowed into the next and dates and times meant nothing to him.

[14] The appellant admitted that Cudney owed him money for drugs. He also agreed that he had retained Bonello in the past to collect drug debts from people other than Cudney. The appellant maintained, however, that he was not worried about being paid by Cudney. Cudney was a friend who always paid his debts and therefore, there was no reason to enlist the services of Bonello.

Charge to the Jury

[15] The appellant raises three grounds of appeal in relation to the charge:

(a) the trial judge's instructions undermined the burden of proof;

(b) the trial judge erred in failing to warn the jury to proceed with caution before relying upon the evidence of Dorothy Cudney to convict the appellant; and

(c) the trial judge erred in instructing the jury that if the appellant's evidence was found to be a fabrication put forward to deceive, the jury could use that finding as positive evidence of guilt.

[16] The first and second grounds can be dealt with in short order.

[17] Commencing with the first ground, I accept that the trial judge made several slips which, viewed in isolation, may have created some confusion about the burden of proof. On balance, however, when the charge is read fairly as a whole, I am satisfied that the jury would have appreciated that the onus of proof rested squarely on the Crown.

[18] Turning to the second ground, I am not persuaded that the trial judge was obliged, as a matter of law, to provide a Vetrovec warning with respect to the evidence of Dorothy Cudney. It was open to the trial judge to conclude that her character, though by no means pristine, did not reach the "unsavoury" level. Notably, the trial judge did alert the jury to Ms. Cudney's criminal record and her addiction to drugs and he instructed the jury to take these factors into account in assessing her credibility and reliability. In the circumstances, I am not persuaded that anything more was required.

[19] That brings me to the third ground. As indicated, the appellant testified and denied any involvement in the abduction of Cudney. In accordance with the principles set forth in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397, the trial judge told the jury that if they believed or had a reasonable doubt that the appellant was "elsewhere" on the night in question, as he claimed, they must acquit. He also told the jury that if they rejected the appellant's testimony, his evidence should be removed from the hopper and the jury should examine the remainder of the evidence to determine whether the Crown had proved its case beyond a reasonable doubt. The trial judge then continued as follows:

Fourthly, you may go further than rejection and find the testimony [of the appellant] to be a lie, that it was a fabrication.

Several pages later, after reviewing portions of the appellant's evidence and providing legal instruction on the defence of alibi, the trial judge returned to the "fabrication" theme and instructed the jury as follows:

It is for you to determine whether the "elsewhere" testimony of Stephen McNeill is to be accepted or rejected. If you find that the evidence is not just to be rejected, but is a lie or fabrication put forward to deceive, you may add that conclusion to the body of circumstantial evidence.

(Emphasis added)

[20] As a result of this instruction, the jury was led to believe that if the appellant's evidence of his whereabouts on the night in question was found to be a fabrication designed to deceive, they could use that finding as positive evidence of guilt.

[21] On behalf of the Crown, Ms. Fairburn concedes that the impugned instruction was wrong in law. [See Note 1 at end of document] As she points out at para. 15 of her factum:

Rejection of an accused's evidence can only be used as circumstantial evidence of guilt where there is independent evidence of concoction. The appellant is correct that there was no independent evidence of concoction in this case. The jury should never have been instructed to use the evidence in this fashion.

[22] Ms. Fairburn submits, however, that the error was harmless and occasioned no prejudice to the appellant. In support of her position, she points to other passages in the charge in which the trial judge made it clear that the appellant was not obliged to prove anything and that the rejection of his testimony did not constitute evidence of guilt. In her submission, these "proper" instructions served to neutralize the erroneous instruction.

[23] With respect, I do not share Ms. Fairburn's optimism. The case for the Crown rested primarily on the evidence of a handful of unsavoury witnesses who stood to gain by co- operating with the police and fingering the person whom the police suspected from the outset. By the same token, the appellant was also a person of unsavoury character and as counsel for the appellant points out, this may have been one of those cases where the jury could not decide who to believe.

[24] In these circumstances, it is as least conceivable that the jury followed the impugned instruction, made a finding of fabrication and used that finding to tip the scales against the appellant. In the final analysis, I cannot say that the verdict would necessarily have been the same had the jury not been misdirected.

[25] The second error in the charge, although not specifically raised as such by the appellant, is integrally related to one of his complaints about the conduct of Crown counsel. In particular, it arises in the context of his submission that his right to remain silent was impinged in cross-examination. For reasons which will become apparent when I address that issue, I am of the view that the error is sufficiently serious that it cannot be overlooked.

Improper Conduct of Crown Counsel

[26] The appellant points to five separate instances of improper conduct on the part of Crown counsel. Of the five, I am satisfied that three merit attention.

(a) Cross-examination impinging on the appellant's right to remain silent

[27] In her examination-in-chief of Detective Heslop, Crown counsel asked the following question:

Q. Now you told us officer that you were involved personally in the negotiations with Mr. Garner and personally -- or not personally, but in a supervising capacity with respect to the negotiations with Mr. Bonello and Mr. Cudney. Can you tell me, did you ever obtain a statement from Stephen McNeill?

A. No.

[28] The trial judge intervened at this point and the following exchange occurred in the presence of the jury:

THE COURT: What are we doing here?

CROWN COUNSEL: I asked the officer if he'd ever obtained a statement from Stephen McNeill sir.

DEFENCE COUNSEL: I guess the point is, because Mr. McNeill chose to rely on his right to remain silent that's somehow relevant to this trial?

CROWN COUNSEL: Sir I never asked the officer whether he ever asked Mr. McNeill for a statement. I simply asked whether the officer had ever obtained one. In my submission sir that's perfectly admissible.

THE COURT: You shouldn't have asked that question.

[29] The trial judge gave the following mid-trial instruction to the jury:

Members of the jury I'll try to repair that. An individual has the right to remain silent, and there's nothing untoward about relying upon a right. Everybody has that right to remain silent, so it's quite prejudicial to have asked that question. The inference from the question is something that shouldn't be in your minds.

[30] Crown counsel then posed another question to the officer which resulted in the jury being excused. In the absence of the jury, defence counsel moved for a mistrial on the basis that Detective Heslop's response to the previous question had caused irreparable prejudice to the appellant. The trial judge refused to order a mistrial. In his view, the mid-trial instruction was sufficient to cure the prejudice.

[31] That is how matters stood until the appellant took the stand. At the tail end of the appellant's examination-in-chief, defence counsel posed the following question and received the following response:

Q. When Detective Heslop was testifying the Crown Attorney asked him if he had a statement from you in relation to this incident and his answer was no. Did you give the police any statement in relation to this incident?

A. I don't make statements. . . . I was instructed by a lawyer a long time ago that any statement I make that's going to help me will not be heard. The only statement that will be heard is one that hurts me. I basically have nothing to say to them. If it's not going to help me I sure -- I'm not going to tell them anything. I will remain silent as my right.

[32] It is unclear why defence counsel chose to revisit the issue of the appellant's failure to provide a statement to the police. Perhaps he felt compelled to confront the issue directly. Whatever the reason, rather than leaving the matter alone, Crown counsel seized upon the opportunity and cross- examined the appellant at great length about a prior occasion when he was arrested for breaking and entering and provided an exculpatory statement to the police which resulted in the charge being withdrawn.

[33] The appellant contends that this line of questioning was improper and highly prejudicial because it was designed to leave the jury with the impression that he was the type of person who provided exculpatory statements to the police if innocent but not if guilty. Using this prohibited line of reasoning, he submits that it would be but a short step for the jury to conclude that his failure to give a statement in relation to the Cudney incident was a sure sign of guilt.

[34] On behalf of the respondent, Ms. Fairburn seeks to justify the cross-examination on the basis that the appellant's explanation for not giving statements to the police opened the door to an attack on his credibility and the questions posed by Crown counsel were directed towards that end.

[35] I accept Ms. Fairburn's assessment of the issue and agree that it was legally permissible for Crown counsel to proceed as she did. That said, it seems to me that having created the problem to begin with, it would have been preferable had Crown counsel not seized upon the appellant's response to launch a full scale attack on his credibility. In the circumstances, the fairer course would have been to leave the matter alone.

[36] The problem, however, does not end there. As indicated, the cross-examination was permissible to discredit the appellant. The evidence, however, could not be used to show that he was the type of person who provided exculpatory statements if innocent but not if guilty and a limiting instruction to this effect was required.

[37] In his charge, the trial judge specifically warned the jury not to draw an adverse inference against the appellant for having exercised his right to remain silent. He did not, however, instruct the jury on the use that could be made of the appellant's evidence concerning the exculpatory "break and enter" statement, nor did he tell the jury how that evidence could not be used. In my view, the trial judge was obliged to tell the jury that they could only use the evidence to assess the appellant's credibility and not to show that he was the type of person likely to provide statements if innocent but not if guilty. The trial judge's failure to give the appropriate limiting instruction constituted error.

(b) Cross-examination of the appellant on defence counsel's failure to pose specific questions to the Crown witness Bonello

[38] In his examination-in-chief of the appellant, defence counsel asked whether the appellant had spoken to Bonello after the Cudney incident. The appellant answered in the affirmative and the following series of questions and answers ensued, without objection from Crown counsel:

Q. And what did Mr. Bonello say about it?

A. I was -- I was probably a little aggressive with him at first, and he became aggressive right back saying that . . . you know . . . I told him that Bob Cudney -- you did this for me; and he said: No, no, no, no. This was done for "killer". It had nothing to do with you.

Q. For who?

A. "Killer". I know that sounds a little bit cliché, but . . . as you heard other people testify . . . this is actually somebody's name.

Q. Did you force the issue with Bonello?

A. I wouldn't force any issue with Bonello. He just told me that it was Cud -- or "killer's" beef and it had nothing to do with me.

[39] For reasons unknown, defence counsel did not question Bonello about this conversation. He was obliged to do so under s. 11 of the Canada Evidence Act, R.S.C. 1985, c. C-5, if it was his intention to lead evidence of a prior statement inconsistent with Bonello's testimony. Had Crown counsel raised the appropriate objection, it would have been for the trial judge to decide whether the appellant should be permitted to testify about the purported conversation (see R. v. P. (G.) (1996), 1996 420 (ON CA), 112 C.C.C. (3d) 263 at pp. 278-87 (Ont. C.A.)).

[40] Defence counsel's failure to question Bonello about the conversation did not go unnoticed by the Crown. No doubt, she was concerned that Bonello had not been given the opportunity to confirm, deny or explain it. To the extent she felt the matter was worth pursuing, in my view, the proper procedure would have been to raise the issue with the trial judge in the absence of the jury. That way, the trial judge could have determined whether her concern was valid and if so, what steps should be taken to remedy the situation.

[41] Regrettably, Crown counsel did not pursue this course. Instead, she chose to confront the appellant with the fact that defence counsel had not questioned Bonello about the purported conversation either at the preliminary hearing or at trial:

Q. The gentlemen that you named . . . that you said Bonello named as having been the whole cause of the Cudney incident; you said his name was "killer"?

A. He said it was "killer's gig", that he was involved with Cudney over, not me; "killer's gig".

Q. You were present at the preliminary hearing as well as at the trial of this matter, isn't that true?

A. Absolutely.

Q. You never heard Mr. Bolnello asked if it was "killer's gig" did you?

A. I never heard him . . . ?

Q. Anybody ask Bonello anything about "killer's gig", or if he said that to you?

A. No. I believe "killer" was mentioned somewhere in this. I think by Bob Cudney. I don't believe Bonello ever used his name. He may have but I don't recall off the top of my head.

Q. That was my point sir. You're telling us about a conversation that you had with Mr. Bonello, but no one ever suggested to Bonello that that conversation occurred, correct?

[42] In my view, this line of questioning was improper because it was capable of leaving the jury with the impression that the appellant should be held responsible for what may have been a tactical decision or mere oversight on the part of defence counsel. (See R. v. Henderson (1999), 1999 2358 (ON CA), 44 O.R. (3d) 628 at pp. 636-37, 134 C.C.C. (3d) 131 at pp. 141-42 (C.A.).)

[43] As explained, defence counsel's failure to question Bonello about the purported conversation involved a breach of s. 11 of the Canada Evidence Act. That, however, is not the way the issue was presented to us. Rather, it was framed as a breach of the rule in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.). Accordingly, I propose to address that rule, primarily with a view to considering the options available when it is breached.

[44] The rule in Browne v. Dunn was succinctly stated by Labrosse J.A. in R. v. Henderson, supra, at p. 636 O.R., p. 141 C.C.C.:

This well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross- examination while he or she is in the witness-box.

[45] In R. v. Verney (1993), 1993 14688 (ON CA), 87 C.C.C. (3d) 363 at p. 376 (Ont. C.A.), Finlayson J.A. outlined the purpose and ambit of the rule:

Browne v. Dunn is a rule of fairness that prevents the "ambush" of a witness by not giving him an opportunity to state his position with respect to later evidence which contradicts him on an essential matter. It is not, however, an absolute rule and counsel must not feel obliged to slog through a witness's evidence-in-chief, putting him on notice of every detail that the defence does not accept. Defence counsel must be free to use his own judgment about how to cross-examine a hostile witness. Having the witness repeat in cross-examination, everything he said in chief, is rarely the tactic of choice. For a fuller discussion on this point, see Palmer and Palmer v. The Queen (1979), 1979 8 (SCC), 50 C.C.C. (2d) 193 at pp. 209-10, [1980] 1 S.C.R. 759, 14 C.R. (3d) 22 (S.C.C.).

[46] While these decisions explain the rule and its underlying purpose, they do not address the options available to a party who feels aggrieved by the failure of his or her opponent to adhere to it. To that end, I offer these suggestions.

[47] In cases such as this, where the concern lies in a witness's inability to present his or her side of the story, it seems to me that the first option worth exploring is whether the witness is available for recall. If so, then assuming the trial judge is otherwise satisfied, after weighing the pros and cons, that recall is appropriate, the aggrieved party can either take up the opportunity or decline it. If the opportunity is declined, then, in my view, no special instruction to the jury is required beyond the normal instruction that the jury is entitled to believe all, part or none of a witness's evidence, regardless of whether the evidence is uncontradicted.

[48] The mechanics of when the witness should be recalled and by whom should be left to the discretion of the trial judge.

[49] In those cases where it is impossible or highly impracticable to have the witness recalled or where the trial judge otherwise determines that recall is inappropriate, it should be left to the trial judge to decide whether a special instruction should be given to the jury. If one is warranted, the jury should be told that in assessing the weight to be given to the uncontradicted evidence, they may properly take into account the fact that the opposing witness was not questioned about it. The jury should also be told that they may take this into account in assessing the credibility of the opposing witness.

[50] Depending on the circumstances, there may be other permissible ways of rectifying the problem. The two options that I have mentioned are not meant to be exhaustive. As a rule, however, I am of the view that they will generally prove to be the fairest and most effective solutions.

[51] Returning to the issue at hand, Ms. Fairburn does not attempt to justify the impugned line of questioning. Instead, she submits that the trial judge's instructions to the jury were sufficient to overcome any prejudice occasioned to the appellant. The trial judge dealt with this issue in general terms as follows:

The procedure of cross-examination is a procedure I regard as one of fairness; a rule of professional practice. It is applicable where it is intended to suggest the witness is not speaking the truth on a particular point. The question, by the suggestion made, often sets the stage, as I have tried to indicate, for defence evidence to be led in support of the suggestion. If put to a witness in cross-examination, the witness has the opportunity to explain. If not put to the witness in cross-examination, but put later to other witnesses, the suggestion is then perhaps impossible to explain, and triers of fact can be left with the inference that the witness's story is untrue and the witness unworthy of credit . . . believability.

There is therefore the practice of cross-examining counsel to put to the witness all significant matters upon which they seek to contradict. I emphasize the words "all significant matters", as some matters may be so obvious as not to be of significance, and likewise some matters may be so insignificant or interrelated with other matters so as not to require a singling out, and the use of time that might be involved in that singling out.

It is for you to decide if there were any significant matters upon which crown witnesses were not cross-examined, which matters were put forward by other witnesses with a view to suggesting the particular crown witness was not worthy of belief. It is for you to decide if there were any such lapses or failure to cross-examine, and if so, what weight to be given to the particular evidence to be called for which there was no opportunity to explain.

(Emphasis added)

[52] In my view, these instructions were deficient in two respects. First, to the extent the jury understood them to relate to defence counsel's failure to question Bonello about the purported conversation, the trial judge left the jury with the impression that Bonello (and inferentially the Crown), was left in the impossible position of being unable to explain the conversation. With respect, that was both inaccurate and misleading. Had Crown counsel wished to have Bonello's explanation before the jury, she could have sought permission to have him recalled. There was nothing to suggest that Bonello was unavailable or that his recall would have posed any difficulty. As it is, she made no effort to do so. Accordingly, it was wrong to leave the jury with the impression that defence counsel's failure to question Bonello rendered it impossible for him to offer an explanation.

[53] Second, although the jury was instructed on the use that could be made of defence counsel's failure to question Bonello, they were not told that the appellant should not be held responsible for what may have been a tactical decision or mere oversight on the part of his counsel.

(c) The suggestion that Bonello had been believed by another jury

[54] Defence counsel cross-examined Bonello with a view to showing that he had testified in the past as a Crown witness in exchange for favourable treatment. Bonello was shown a transcript of a preliminary inquiry held in Calgary in 1990 in relation to two individuals charged with murder. In the transcript, a person named Emanuel Bonello testified that he was present when the two accused cut off the victim's toes and killed him. He also testified that he had agreed to co-operate with the authorities in exchange for the withdrawal of weapons charges.

[55] Bonello denied being the person in the transcript and accused defence counsel of having fabricated it. Crown counsel, however, admitted that Bonello did testify in the earlier case and that the transcript was accurate.

[56] In her closing address, Crown counsel sought to restore Bonello's credibility as follows:

I've admitted to this court and I've admitted to defence counsel that all of those things that he said that he didn't remember in Calgary, occurred. We've admitted that; but remember as well, just because he testified before in a previous hearing and doesn't want to say anything about it, doesn't mean he's lying now. I mean, you know that those two people are in the penitentiary. You know that those two people were convicted, and they've been in that penitentiary since 19 -- well 1989, with the date of the offence, and they've been in the penitentiary from -- they are now and have been since the date of this incident, June 18th, 1995. So you have to assume there wasn't an appeal. So you have to assume that on a previous occasion his evidence was believed and these people were convicted. Just because someone testifies for the Crown doesn't mean they're lying. Just because someone gets a benefit doesn't mean they're lying.

(Emphasis added)

[57] Counsel for the appellant submits that it was improper for the Crown to suggest that Bonello was obviously believed by another jury. He correctly points out that there was no evidence that Bonello even testified at the trial in Calgary. In addition, he maintains that even if Bonello did testify at the trial, without knowing what other evidence was tendered, it was pure speculation to conclude that Bonello was believed. Finally, even if Bonello was believed by another jury, this was a completely irrelevant consideration and the jury ought not to have been invited to take it into account.

[58] I agree with each of those submissions. Apart from being misleading and inaccurate, the impugned remarks invited the jury to speculate and take irrelevant considerations into account.

[59] Ms. Fairburn does not seek to justify the impugned remarks. Rather, she submits that the trial judge repaired the damage in his charge. With respect, I do not entirely agree.

[60] While it is true that the trial judge told the jury that there was no evidence that Bonello had testified at the trial in Calgary, in my opinion, he should have gone further and instructed the jury that they were to take nothing from the fact that the two men charged in Calgary were convicted. Absent this instruction, the jury may well have concluded that Bonello was telling the truth at the preliminary hearing and that his evidence in the instant case could therefore be safely relied upon.

Conclusion

[61] The charge contained two errors of significance that were potentially prejudicial to the appellant. Two instances of improper conduct on the part of Crown counsel have been identified. Each was capable of occasioning prejudice to the appellant.

[62] Although the case for the Crown was strong, in my view, it was not overwhelming. In all of the circumstances, I cannot say that the verdict would necessarily have been the same despite the legal errors and inappropriate conduct of Crown counsel. Accordingly, this is not an appropriate case to apply the proviso. To the contrary, the interests of justice require that a new trial be ordered.

[63] In the result, the appeal is allowed, the convictions are quashed and a new trial is ordered.

Appeal allowed.

Notes

Note 1: See R. v. Coutts (1998), 1998 4212 (ON CA), 40 O.R. (3d) 198, 126 C.C.C. (3d) 545 (C.A.), leave to appeal refused (1999), 131 C.C.C. (3d) vi (S.C.C.).