Her Majesty the Queen v. Clinton Victor Suzack and Peter Pennett, 2000 ONCA 5630

DATE: 20000119 DOCKET: C22404/C22904

COURT OF APPEAL FOR ONTARIO

MORDEN, DOHERTY and ABELLA JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN Respondent

• and -

CLINTON VICTOR SUZACK and PETER PENNETT Appellants

Counsel: Frank Addario and Jonathan Dawe for the appellant, Suzack Timothy E. Breen for the appellant, Pennett C. Jane Arnup and Carol A. Brewer for the respondent

Heard: April 22 and 23, 1999

On appeal from verdicts rendered at a trial before a jury and Mr. Justice R.G. Trainor.

DOHERTY J.A.:

I

[1] The appellants were charged with the first degree murder of Constable Joe MacDonald. It was acknowledged that Constable MacDonald had been murdered in the course of the execution of his duties, and that either Suzack or Pennett had fired the fatal shots. The Crown argued that the appellants, acting in concert, had set upon Constable MacDonald when he stopped their vehicle for a routine traffic stop, disabled him and then shot him five times. It was the Crown’s position that both appellants beat Constable MacDonald and shot him in the course of the attack. Relying primarily on the physical evidence, the Crown argued that Pennett had administered the fatal shots to the back of Constable MacDonald’s head. The Crown contended that Pennett was guilty of first degree murder as the shooter and that Suzack was guilty of the same crime either as a co-perpetrator or an aider. The Crown also took the position that the jury could convict both men of first degree murder as co-perpetrators or parties without deciding which of the two had fired the fatal shots.

[2] Suzack testified that Pennett had fired the fatal shots. He said that he was not party to any common design with Pennett to murder Constable MacDonald. Suzack admitted that he and Pennett attacked the officer, and that he assumed the lead role in the course of the assault on Constable MacDonald. Suzack admitted punching Constable MacDonald in the face and striking him several times on the head with the murder weapon. Suzack said, however, that he never fired the gun and did not intend to kill Constable MacDonald. He only wanted to disable the officer so he could escape. Suzack was a parole violator and knew that if Constable MacDonald learned his identity, he would have to go back to jail. Suzack said that after he struck the officer several times, he momentarily moved away from Constable MacDonald. Pennett was on top of MacDonald. As Suzack moved back towards Constable MacDonald intent upon continuing his assault, the Constable drew his weapon and fired several shots, hitting Suzack four times. Suzack said he remembered being shot, but very little of what happened after he was shot. He concluded that Pennett must have picked up the murder weapon and shot and killed Constable MacDonald to save Suzack’s life. Suzack’s counsel conceded that on his version of events, Suzack was guilty of manslaughter.

[3] Pennett also testified. He said he played no role in the assault on Constable MacDonald by Suzack and had no idea Suzack would attack the officer. He admitted that at one point while Suzack and Constable MacDonald were struggling on the ground, he attempted to take Constable MacDonald’s gun from its holster. He said that he did so because Suzack ordered him to and he was afraid of Suzack. He hoped that by getting the officer’s gun he would defuse the situation. Pennett said that as Constable MacDonald lay on the ground being hit by Suzack, he drew his revolver and shot Suzack. Suzack fired back, shooting and killing MacDonald. Pennett said that he sat “frozen” in fear about 4 or 5 feet away as Constable MacDonald and Suzack exchanged gunfire. In support of his position, Pennett adduced evidence of Suzack’s propensity for violence and evidence of statements made by Suzack to two witnesses (Paul Gibbs and Mike Sweeney) before the shooting. According to both witnesses, Suzack said he would “shoot it out” with the police rather than go back to jail. Gibbs also testified that Suzack spoke to him after the killing and admitted that he had shot Constable MacDonald. Suzack told Gibbs he acted in self-defence.

[4] After a lengthy and hard-fought trial, the jury convicted both appellants of first degree murder.

[5] Counsel for Suzack and Pennett on appeal have skillfully argued several grounds. I would not give effect to any and would dismiss the appeals.

II

[6] Suzack and Pennett had been friends for many years. Both have extensive criminal records. They spent considerable time together in the days immediately preceding the murder trying to arrange a large drug transaction. On the evening of October 6th, they continued their attempts to arrange that transaction. Both were drinking throughout the evening. They were on their way to complete the drug transaction when they were stopped by Constable MacDonald.

[7] Constable MacDonald was patrolling a residential area in Sudbury in his police car during the early morning of October 7th. He was in uniform. Constable MacDonald followed the vehicle driven by Pennett. Suzack was seated in the front passenger seat. At about 2:23 a.m., the vehicle driven by Pennett pulled into a residential driveway on Gordon Avenue and Constable MacDonald pulled the police cruiser in behind it. Constable MacDonald did not know Pennett or Suzack and from his perspective this was a routine traffic stop. Pennett got out of the vehicle and went back to the police car.

[8] Pennett did not have a licence and smelled of alcohol. Suzack was a parole violator and there was a warrant outstanding for his arrest. Pennett knew that Suzack was a fugitive. Suzack had some $9,000 to be used to complete the drug transaction. He also had a loaded 9 millimeter gun (the murder weapon) in his possession. Both men had fired the gun at a roadside sign moments before they were stopped by Constable MacDonald. Suzack had reloaded the gun after firing at the sign.

[9] Constable MacDonald spoke briefly with Pennett after Pennett walked back to the police vehicle. He started to write out a traffic ticket for Pennett, but he never completed that ticket. Within 2 or 3 minutes of stopping the vehicle, Constable MacDonald was engaged in a life and death struggle on the lawn and in the ditch in front of a residence on Gordon Avenue. Suzack claimed that Pennett attacked Constable MacDonald and Suzack went to Pennett’s aid. Pennett said that Suzack came out of the car and pointed a gun at the officer and attacked him. Regardless of how the struggle started, Constable MacDonald was knocked to the ground shortly after it commenced. He suffered a badly broken leg when he fell and was virtually disabled from that moment forward. He never got off the ground.

[10] The noise from the struggle drew the attention of several neighbours, some of whom called 911. The first call was made at 2:26 a.m. about three minutes after the Pennett vehicle was stopped by Constable MacDonald. Several of the neighbours who saw different parts of the events as they unfolded in front of 1124 Gordon Street testified for the Crown. Not surprisingly, given their different vantage points, the lighting and their excitement as the violence escalated, the evidence of the neighbours differed in several respects. For example, some saw three people struggling on the lawn, while at least one saw only two people fighting on the lawn. One neighbour heard someone say the word “kill.”

[11] According to Suzack, both he and Pennett attacked the officer after he fell to the ground. Suzack punched the officer in the face several times. When this appeared to have little effect, he struck the officer on the head several times with the muzzle of the murder weapon. He wanted to knock him out. Constable MacDonald’s blood was found on the muzzle of the gun.

[12] Pennett denied striking the officer during this struggle, but admitted that he did try to take Constable MacDonald’s gun away from its holster as he lay on the ground being attacked by Suzack. Constable MacDonald was lying on his right side and doing his best to keep his assailants from taking his revolver. At one point, Pennett ripped MacDonald’s radio from his belt. That radio was later found in the Pennett vehicle. Pennett admitted taking the radio but denied that his intention was to monitor police calls to assist in his attempted escape.

[13] Mr. Jessie Hawes, a neighbour, heard the struggle and went out onto his porch. He saw one man (Suzack) bent over with an object in his hand. He appeared to be striking someone or something on the ground. Mr. Hawes left his home and headed towards the confrontation. He told his wife to call to 911. He saw the cruiser and thought that a police officer was being attacked. As he approached the area where the assault was occurring, he heard a voice behind a bush say “asshole fucker.” He then heard another voice say “why not let me up and we’ll talk about it.” He then saw a person walking towards the appellants’ vehicle. Mr. Hawes said “Alright you guys, that’s enough leave him alone.” The person who had walked towards the vehicle (Suzack) turned, looked at Mr. Hawes and said “you stay out of this or I’ll shoot you.” Mr. Hawes turned and left the area in a hurry. As he left he heard the person on the ground (MacDonald) call out “help me, help me call the police.” Suzack admitted that he had threatened Hawes.

[14] When Suzack threatened Mr. Hawes, he racked the gun. That action placed a bullet in the chamber and readied the gun for firing. Once the gun was racked, all of the bullets in the gun could be fired without re-racking the gun. Seconds after Suzack threatened Hawes, several shots rang out.

[15] The first shot was fired at 2:28 a.m., about 2 or 3 minutes after the struggle started. Although the evidence of the witnesses varied as to the sequence and number of shots fired, it would appear that 11 or 12 shots were fired in about 20 to 30 seconds.

[16] Six shots were fired by Constable MacDonald as he lay on the ground. Two struck Suzack in the chest and one shot grazed his neck. Constable MacDonald was hit with five shots fired from the murder weapon. He was struck in the right arm, the left arm and three times in the back of the head. One of the three bullets entered his head directly and the other two passed through his left shoulder before entering his head. The wounds were consistent with Constable MacDonald having taken a defensive position face down with his arms above his head and his head tucked below his shoulders. The three shots which struck Constable MacDonald in the head appeared to have come from the rear and to the left of the officer. It was possible that the shots that hit Constable MacDonald in the arms also came from behind. The wounds suggested that the shooter was at least 18” from Constable MacDonald when the shots were fired.

[17] Pennett was struck in the right hand with a shot fired from the murder weapon. The shot was fired from close range. It was the Crown’s contention that this was the same bullet that passed through Constable MacDonald’s right arm and that Pennett was struck as he was trying to get the officer’s gun. It was Suzack’s position that Pennett had fired all of the shots and had somehow shot himself in the hand. Pennett had no explanation for how he had been shot as on his evidence, he was 4 or 5 feet from Constable MacDonald when Constable MacDonald and Suzack opened fire on each other. Pennett also had no sensible explanation for how Suzack, who was in front of Constable MacDonald when he was shot by him, could have fired three shots into the back of MacDonald’s head. According to the expert evidence, Suzack was about 12 to 17 inches in front of Constable MacDonald when Constable MacDonald shot him.

[18] After the shooting had stopped, Suzack, who was badly wounded, pleaded with Pennett to help him. Pennett initially refused to do so, but then relented and dragged Suzack to the car. Pennett backed the vehicle up struck the police vehicle, and then sped away with Suzack slumped in the front seat. By this time, the police had responded to the neighbours’ call and encountered the Pennett vehicle speeding away. A pursuit ensued. When the Pennett vehicle was eventually stopped by the police, the passenger door opened and Suzack fell out onto the ground in a semi-conscious state. Suzack was taken to the hospital.

[19] Pennett fled the scene on foot. He was eventually caught and subdued after a vigorous struggle. According to the officers, Pennett said “shoot me, shoot me” when encountered by the police. Pennett could not recall what he said. He testified that throughout the pursuit he was very afraid that the police would shoot him because they would assume that he was involved in the killing of Constable MacDonald.

[20] Spatters of Constable MacDonald’s blood were found on Suzack’s vest. The spatters were consistent with having been caused by Suzack striking Constable MacDonald’s head with the murder weapon. The blood patterns on the vest were not consistent with the high energy impact spatters normally associated with gunshots.

[21] Pennett’s blood was found on Constable MacDonald’s lower right pant leg, his portable radio and possibly on his boot. Pennett’s blood was found on the grip of the murder weapon. Suzack’s blood was not on the gun. The weapon was found in the car near the driver’s seat. Pennett was driving. Pennett’s blood was also found on the ground in the area where the struggle with Constable MacDonald had occurred.

III

[22] Suzack advances seven grounds of appeal:

• the trial judge erred in refusing to grant a change of venue;
• the trial judge erred in holding that s. 635(2) of the Criminal Code, R.S.C. 1985, c. C-46, as amended, S.C. 1992, c. 41, s.2, was not unconstitutional;
• the trial judge erred in refusing Suzack’s applications for severance;
• the trial judge misdirected the jury as to the limited use it could make of the evidence of Suzack’s propensity for violence introduced by Pennett;
• the trial judge misdirected the jury as to the use it could make of Suzack’s pre-trial silence and his access to Crown disclosure;
• the trial judge misdirected the jury as to the legal basis upon which Suzack could be convicted of murder; and
• the trial judge erred in law in failing to correct Crown counsel’s submissions as to the relevance of Constable MacDonald’s actions to Suzack’s intent.

[23] Pennett joins in Suzack’s contention that a change of venue should have been granted and raises five additional grounds of appeal:

• the trial judge failed to properly instruct the jury as to the use it could make of the evidence of Suzack’s propensity for violence;
• the trial judge erred in his instruction as to the inference of consciousness of guilt that could be drawn from Pennett’s flight, his resistance upon arrest and his statements made immediately prior to his arrest;
• the trial judge erred in holding that Pennett could not adduce evidence of his post-arrest statements through Crown witnesses;
• the trial judge erred in giving an “unsavoury witness” warning with respect to two defence witnesses called by Pennett; and
• the trial judge’s review of the evidence was skewed in favour of the Crown.

IV

Did the trial judge err in refusing to grant a change of venue?

[24] The appellants unsuccessfully sought a change of venue. They relied on pre-trial publicity beginning with the shooting in October 1993 and extending through to September 1994 when the change of venue application was made.

[25] The media coverage was extensive and, in parts, highly emotional. It evinced the community’s understandable outrage at the murder of a police officer and its deep sympathy for his family. Some of the coverage suggested that the criminal justice system had failed Constable MacDonald and the community. These references were primarily a reaction to Suzack’s release on parole, despite strong opposition, shortly before the murder.

[26] The media reports made many references to the heinous nature of the murder, the criminal antecedents of both appellants, particularly Suzack, and the fact that Suzack was a parole violator when he participated in the killing of Constable MacDonald.

[27] The media coverage linked Constable MacDonald’s death to broader issues such as:

• the circulation of a petition referred to as the “MacDonald petition” calling for the return of the death penalty. Some 12,000 people signed the petition; and
• calls for tougher criminal laws and better armed police. These calls were supported by a lobby group which organized a “black ribbon campaign” in memory of Constable MacDonald. Some 40,000 black ribbons were distributed in the Sudbury area.

[28] The media coverage also reflected the community’s strong sympathy for Constable MacDonald’s family. Constable MacDonald was a well-liked and respected young officer. A trust fund for his children and a scholarship for disadvantaged children were established in his memory. A youth football league was also named in his honour.

[29] The appellants advanced two arguments in support of their contention that the trial judge should have ordered a change of venue. The first submission accepts the law as it presently exists and argues that the trial judge failed to exercise his discretion in a judicial manner. The second, and more ambitious, submission contends that the principles under which change of venue applications have been determined must be recalibrated in the light of the Charter guarantee of the right to a fair trial. The appellants submit that the Charter right to a fair trial requires that the Crown demonstrate that an accused’s right to a fair trial can be preserved without a change of venue. I will consider first the appellants’ claim that under the existing law the trial judge erred in refusing to direct a change of venue and then I will address the second argument advanced by the appellants.

[30] It is a well-established principle that criminal trials should be held in the venue in which the alleged crime took place. This principle serves both the interests of the community and those of the accused. There will, however, be cases where either or both the community’s interests and the accused’s interests in a fair trial are best served by a trial in some other venue. Section 599(1)(a) of the Criminal Code provides in part:

A court … upon the application of the prosecutor or the accused [may] order the trial to be held in a territorial division in the same province other than that in which the offence would otherwise be tried if (a) it appears expedient to the ends of justice, …

[31] As the section indicates, a change of venue should be ordered where the judge is satisfied that it “appears expedient to the ends of justice”. This determination will depend on the judge’s assessment of the evidence led on the application and the weighing of the various factors which favour or tell against a change of venue. In short, the trial judge’s decision requires an exercise of discretion.

[32] In Baker v. Canada (Minister of Citizenship and Immigration) (1999), 1999 699 (SCC), 174 D.L.R. (4th) 193 at 223 (S.C.C.), L’Heureux-Dubé J., for the majority, said:

The concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries.

[33] A review of the case law in which change of venue applications have been made in cases involving the murder of a police officer demonstrates that in similar cases the discretion created by s. 599(1)(a) may properly be exercised in different ways: see R. v. Frederick and Chater (1978), 1978 2373 (ON SC), 41 C.C.C. (2d) 532 (Ont. H.C.); R. v. Fitzgerald and Schoenberger (1981), 61 C.C.C. (2d) 504 (Ont. H.C.); R. v. Lepage, unreported May 3, 1985 (Ont. H.C.); R. v. Collins (1989), 1989 264 (ON CA), 48 C.C.C. (3d) 343 (Ont. C.A.).

[34] The appellants accept, for the purposes of their first submission on this ground of appeal, that this court can interfere with the trial judge’s exercise of his discretion only if the trial judge erred in principle or if it can be said that the exercise of his discretion was unreasonable in all of the circumstances. An error in principle encompasses a failure to consider relevant factors, the taking into account of irrelevant factors, and a failure to properly weigh the various applicable factors: R. v. Rezaie (1996), 1996 1241 (ON CA), 112 C.C.C. (3d) 97 at 103 (Ont. C.A.).

[35] Trainor J., the trial judge, described his approach to the discretion vested in him by s. 599(1) in terms that are consistent with the case law:

… The obligation or onus is on the defence to show, on a balance of probabilities, that there is a fair and reasonable likelihood of partiality or prejudice in the Sudbury area, that cannot be overcome by the safeguards in jury selection, including the oath, instructions from the trial judge to the jury panel including jury screening, peremptory challenges, challenges for cause and the rules of evidence.

[36] In deciding against ordering a change in venue, Trainor J. gave considerable weight to the three factors. He stressed the numerous safeguards available to protect the appellants’ rights to a fair trial within the trial process, including their right to an extensive challenge for cause process. He also observed that most of the potentially prejudicial media coverage concerning the criminal activities of the appellants had appeared in the media over a year before the scheduled trial date. Finally, Trainor J. identified the real source of potential prejudice to the appellants as the evidence to be adduced in the trial rather than the pre-trial publicity. Trainor J. observed that by the end of the Crown’s opening address, the jury selected to try the case, wherever the venue, would be apprised of facts that could prejudice them against the appellants. Counsel for the appellants submit that this factor supported their claim for a change of venue and Trainor J. erred in principle in relying on that factor in refusing the change of venue.

[37] Trainor J. was correct in identifying exposure to the facts of this case as the strongest source of potential prejudice. On any version of events, this was a cold-blooded murder of a helpless police officer acting in the execution of his duties. Further, on any version of events, both appellants were implicated in the attack and one or both had committed murder. Any jury, no matter where the venue, would hear that Suzack was a parole violator and that both appellants were involved in criminal activity. Wherever the trial was to take place, the jury selected would have their ability to act impartially and dispassionately severely tested by the evidence they would hear.

[38] Where the real potential for prejudice lies in the evidence which the jury eventually selected to try the case will hear, a change of venue does not assist in protecting an accused’s right to a fair trial. The many safeguards built into the trial process itself must provide that protection. Trainor J. properly considered the real source of the potential prejudice to the appellants’ fair trial interests in considering whether a change of venue would serve the ends of justice.

[39] The appellants also submit that Trainor J. failed to give sufficient weight or gave too much weight to other relevant factors in deciding that a change of venue should not be granted. It is difficult to marry the concept of an error in principle based on a failure to give appropriate weight to relevant factors with the concept of deference to the decision of the trial judge. It seems to me that the weight to be assigned to particular factors is the essence of the exercise of the discretion vested in the trial judge. In any event, the argument as framed in this case amounts to an attempt to re-argue the change of venue application in the hope that this court would exercise its discretion differently than did Trainor J. I see no error in principle in the weight assigned by Trainor J. to the various relevant factors and I would not take up the appellants’ invitation to engage in a de novo assessment of the evidence led on the application.

[40] The appellants’ submission that the Charter right to a fair trial requires a reformulation of the principles governing change of venue applications starts with the non-contentious assertion that legislation conferring a discretion may not be interpreted so as to permit the exercise of that discretion in a manner which infringes Charter rights. Counsel then moved directly to s. 1 of the Charter and submitted that the present approach on change of venue applications fails to meet the minimum impairment component of the proportionality test in s. 1 of the Charter. As I understand the argument, counsel contend that by placing the onus on an accused to justify a change of venue, s. 599(1) does not minimally impair the appellant’s right to a fair trial.

[41] This argument misconceives the role of s. 1 of the Charter. The minimal impairment analysis can only become relevant when the court finds that there has been a violation of a Charter right. The appellants’ argument treats s. 1 of the Charter as a free-standing constitutional right.

[42] There can be no doubt that s. 599(1) must operate in a manner that is consistent with Charter rights and in particular, the right to a fair trial. I regard s. 599(1) as one of many mechanisms designed to protect an accused’s right to a fair trial. If a judge is satisfied, having regard to the various mechanisms available to protect an accused’s right to a fair trial, that an accused cannot receive a fair trial in the assigned venue, then the interests of justice would clearly require a change of venue under s. 599(1)(a).

[43] There is nothing inconsistent with an accused’s right to a fair trial and the placing of the onus on an accused to demonstrate that a change of venue is “expedient to the ends of justice.” Placing the onus on the accused, if he is the applicant on the change of venue motion, is nothing more than an application of the traditional and well-established rules of the adversarial process. A party who seeks a remedy bears the onus of showing the need for that remedy. The Charter itself reflects this traditional approach in that it is the party alleging a breach of his or her Charter rights who bears the onus of establishing a breach and the onus of establishing the appropriate remedy under s. 24 of the Charter.

[44] Nor in my view does the right to a fair trial require a change of venue wherever pre-trial publicity poses a risk to that right. The risk will exist to some extent in virtually every case where there has been pre-trial publicity. The right to a fair trial is compromised where despite the available safeguards there is a reasonable likelihood that an accused cannot receive a fair trial in the local venue.

[45] The minimal impairment argument adds nothing to the appellants’ submission that Trainor J. erred in refusing the change of venue application. If his refusal compromised the appellants’ fair trial rights, then the exercise of that discretion was clearly improper under the terms of s. 599(1) and constituted a violation of the appellants’ right to a fair trial under s. 11(d) of the Charter. The Crown has not suggested that s. 1 could somehow justify such a violation. As indicated above, however, I am satisfied that Trainor J. did not err in the exercise of his discretion and that there was no infringement of the appellants’ right to a fair trial.

[46] The application for a change of venue raised difficult problems. Trainor J. gave them careful consideration. I think he was in a much better position to make the subtle assessment required by the change of venue motion than is this court. I would not give effect to this ground of appeal.

Is s. 635(2) unconstitutional?

[47] Following the decision of the Supreme Court of Canada in R. v. Bain (1992), 1992 111 (SCC), 69 C.C.C. (3d) 481 in which the section of the Criminal Code granting the Crown 48 stand asides was held unconstitutional, Parliament revamped the sections of the Criminal Code setting out the procedures to be followed during jury selection. Its purpose in doing so was in part to eliminate imbalances which existed between the rights accorded to the accused and those provided to the Crown in the jury selection process.

[48] Section 635 of the Criminal Code was amended to read:

635.(1)The accused shall be called on before the prosecutor is called on to declare whether the accused challenges the first juror, for cause or peremptorily, and thereafter the prosecutor and the accused shall be called on alternately, in respect of each of the remaining jurors, to first make such a declaration. (2) Subsection (1) applies where two or more accused are to be tried together, but all of the accused shall exercise the challenges of the defence in turn, in the order in which their names appear in the indictment or in any other order agreed on by them, (a) in respect of the first juror, before the prosecutor; and (b) in respect of each of the remaining jurors, either before or after the prosecutor, in accordance with subsection (1). [Emphasis added.]

[49] Under s. 635(1), the accused and Crown must alternate the order in which they challenge prospective jurors. The accused must challenge the first juror before the Crown and the Crown must challenge the second prospective juror before the accused.

[50] As there were two accused in this case, s. 635(2) applied. Suzack appeared first on the indictment and, because counsel could not agree on the order of challenges, he was required to challenge prospective jurors before Pennett. Consequently, jurors were challenged in the following order:

• juror number 1 – Suzack – Pennett – Crown
• juror number 2 – Crown – Suzack – Pennett
• juror number 3 : as per juror number 1
• juror number 4: as per juror number 2, etc.

[51] Section 635 applies to both challenges for cause and peremptory challenges. Counsel at trial agreed that all prospective jurors would be jointly challenged for cause by the Crown and both appellants. The dispute arose over the order in which the appellants would be required to exercise their peremptory challenges. Each appellant had 20 peremptory challenges and the Crown had 40 peremptory challenges (see s. 634(4)).

[52] Suzack submits that s. 635(2) arbitrarily gave Pennett a tactical advantage over him by requiring Suzack to exercise his peremptory challenges before Pennett in respect of all potential jurors. Suzack argues that his counsel wasted peremptory challenges by challenging prospective jurors who would have been challenged by Pennett had Pennett been required to challenge some of the prospective jurors before Suzack. He also contends that the tactical advantage was significant because he and Pennett were advancing antagonistic defences. He assumes that since he and Pennett had antagonistic defences, they had different preferences with respect to potential jurors.

[53] It is contended that the process created by s. 635(2) creates a reasonable perception of unfairness and therefore violates ss. 11(d) and 7 of the Charter. It is Suzack’s position that the trial judge should have struck down the section and devised a procedure giving Suzack and Pennett an equal opportunity to exercise their peremptory challenges last.

[54] An accused’s right to a fair trial is protected by s. 7 and s. 11(d) of the Charter. That broad right encompasses a number of discrete rights, including the right to trial by an impartial jury, the right to know the case for the Crown before being called upon to answer that case and the right to make full answer and defence. I think it is the right to trial by an impartial jury which is potentially implicated by the selection procedure set out in s. 635(2). If the appearance of the impartiality of the jury is not affected by that process, I see no basis upon which it can be argued that any of the other component parts of the right to a fair trial are adversely affected by that section.

[55] In R. v. Bain, supra, the majority of the court declared the former s. 634(2) unconstitutional. That section gave the Crown 48 stand asides. The majority equated stand asides with peremptory challenges and held that combined with the 4 peremptory challenges given to the Crown, the 48 stand asides gave the Crown 52 peremptory challenges while the accused had only 12.

[56] Cory J. for three of the four person majority said, at p. 511:

Apart from challenges for cause the provisions of the Criminal Code provide the Crown with the ability to stand by 48 prospective jurors and to peremptorily challenge 4 jurors. The accused in this case has but 12 peremptory challenges. I do not suggest that the ideal of absolute equality is required by the Canadian Charter of Rights and Freedoms. However, a discrepancy of 4.25 to 1 in favour of the Crown seems to be so unbalanced that it gives an appearance of unfairness or bias against the accused. The impugned provisions permit the Crown to obtain a jury that would at the very least appear to be favourable to its position rather than an unbiased jury. [Emphasis added]

[57] Cory J. emphasized the appearance of impartiality created by the significant imbalance in the respective roles of the Crown and accused in the selection of the jury at p.512:

It may well be correct that it would be impossible to prove that a jury selected after the Crown had exercised all its stand-bys and peremptory challenges was in fact biased. None the less the overwhelming numerical superiority of choice granted to the Crown creates a pervasive air of unfairness in the jury selection procedure. The jury is the ultimate decision maker. The fate of the accused is in its hands. The jury should not as a result of the manner of its selection appear to favour the Crown over the accused. Fairness should be guiding principles of justice and the hallmark of criminal trials. Yet so long as the impugned provision of the Code remains, providing the Crown with the ability to select a jury that appears to be favourable to it, the whole trial process will be tainted with the appearance of obvious and overwhelming unfairness. Members of the community will be left in doubt as to the merits of a process which permits the Crown to have more than four times as many choices as the accused in the selection of the jury. [Emphasis added.]

[58] Stevenson J., who concurred in the result with Cory J., took much the same approach. After observing at p. 530 that:

The peremptory challenge is not, itself, under attack. It may be used under partisan considerations, and so long as the right of exercise is proportionate neither the Crown nor the accused can be said to have an unconstitutional advantage.

[59] He went on to hold that the disproportionate number of stand asides and peremptory challenges gave the Crown a substantial advantage in the shaping and fashioning of the constitution of the jury. That advantage produced a reasonable apprehension that juries generated by that process would not be impartial.

[60] The effect of s. 635(2) is very different than that of the former s. 634(2). The present section does not give the Crown a predominant role in the selection of the jury and does not give the Crown any advantage over the accused in the selection of the jury. Nor does s. 635(2) give any party to the proceedings a numerical advantage in the selection of the jury. All participants have an equal voice. An accused who is tried with another accused has the same number of challenges as he or she would have if tried alone.

[61] The appellant cannot claim any unfairness as between himself and the Crown, but only that s. 635(2) gave his co-accused a tactical advantage over him. I accept that a tactical advantage may reach constitutional proportions. I also accept that a law which gives one accused an advantage over a co-accused could infringe the constitutional rights of the disadvantaged co-accused, although I would think that laws which favour one accused over another are constitutionally less suspect than a law which favours the Crown over the accused.

[62] Tactical disadvantages cannot, however, be equated with unfairness in the constitutional sense. Tactical advantages and disadvantages are inherent in the adversarial process. They come and go with the ebb and flow of the process. Where there is more than one accused on trial, the question of which accused will go first, last or somewhere in between will arise repeatedly in the course of the trial (e.g. who will cross-examine Crown witnesses first, who will call a defence first, who will go to the jury first). I do not understand the Charter to demand exact parity at each and every procedural step of the criminal trial process. Indeed, in R. v. Bain, supra, at p. 511, Cory J. acknowledged that the Charter did not even require parity as between an accused and the Crown in the selection of the jury.

[63] A tactical disadvantage in the selection of the jury becomes a constitutional infringement if, when viewed in the context of the entire process, it skews the fairness or the appearance of the fairness of the proceeding so that a reasonable, well-informed person would conclude that the process was so lacking in balance as to be fundamentally unfair: R. v. Bain, supra, at p. 511. The test is not – can one fashion a fairer process, but rather is the process put in place by Parliament so lacking in balance as to amount to a departure from the standard of fundamental fairness to the accused? It is important in addressing this question to place the alleged disadvantage in the context of the entire trial process. The Charter is not a criminal procedure statute and should not be used to micro manage each and every facet of the process. The Charter’s approach is broader and looks to the fundamental fairness of the process as a whole.

[64] The tactical disadvantage asserted by Suzack cannot be measured. It is impossible to say how often an accused who is required to challenge first will waste a peremptory challenge on a juror who would have been challenged peremptorily by his co-accused. It is equally impossible to say how often the accused who has wasted a peremptory challenge will run out of challenges before the jury is selected. The impossibility of making any kind of informed assessment of the significance of this disadvantage flows in large measure from the nature of peremptory challenges. They are exercised for a myriad of reasons, many of which reflect only the subjective preferences of counsel exercising the challenge. There is no way of predicting how counsel will exercise their peremptory challenges and, therefore, no way of knowing the extent to which counsel for the co-accused who must exercise his challenge first is put at a disadvantage. Nor do I think that the fact that the accused have antagonistic defences sheds any light on the extent of the disadvantage suffered by the co-accused who must challenge first. Accused may have antagonistic defences and yet counsel may have exactly the same view of those whom they do not want on the jury. Counsel for Suzack did not suggest how the profile of a juror deemed suitable by Suzack might differ from that sought by Pennett.

[65] It is also clear that an accused who is required to exercise his peremptory challenges ahead of a co-accused will, in some cases, benefit in the selection of the jury from the presence of the co-accused and the added 20 peremptory challenges. There will be cases where an accused who exercises his challenges first runs out of challenges, but the co-accused still has challenges and uses them to challenge jurors who would have been challenged by the accused had he not run out of peremptory challenges. In such cases, while the accused suffers the disadvantage of challenging before the co-accused, he enjoys the advantage of having prospective jurors eliminated who would not have been eliminated had the accused been tried alone.

[66] I also agree with the Crown’s submission that there can be disadvantages to exercising one’s peremptory challenges last. Some counsel will not want to be put in the position of rejecting prospective jurors whom all other parties have declared to be acceptable, particularly when the jury is partly picked and the process has gone on for some time.

[67] The most that can be said about s. 635(2) is that it potentially puts some accused who must challenge first at some tactical disadvantage in some cases. Considered in the context of the entire process, I do not regard the potential disadvantage as significant.

[68] The decision of the Supreme Court of Canada in R. v. Rose (1998), 1998 768 (SCC), 129 C.C.C. (3d) 449 is instructive. The majority drew a distinction between procedures which were less advantageous to the defence than other possible procedures and procedures which were unfair for constitutional purposes. In considering whether s. 651(3), which required an accused to address the jury first where the accused called a defence, rendered the trial unfair and thereby infringed s. 11(d), Cory J., for the majority, said at p. 491:

In order for the appellant to demonstrate that s. 651(3) of the Code infringes his right to make full answer and defence, he must show that the inability to address the jury after the Crown has done so unfairly interferes with his ability to defend himself and to answer the Crown’s case. The essential question is whether the order of jury addresses set out in the impugned legislative provision creates an unfairness. Unfairness would exist, for example, if addressing the jury last provided an advantage to the Crown which was therefore denied to the defence, or if addressing the jury first interfered with the accused’s right not to incriminate himself. Although there may be better ways that Parliament could structure the determination of the order of jury addresses, the question of whether or not the appellant’s Charter rights have been infringed is concerned only with whether the existing provisions are unfair. [Emphasis added.]

[69] After a careful analysis, Cory J. concluded that there was no significant advantage in addressing the jury first or last. Consequently, he concluded that the order of addresses, depending on whether a defence was called, did not infringe s. 11(d). He concluded at pp. 498-99:

… Granting the accused an option as to whether to address the jury first or last would presumably be welcomed by defence counsel, who may feel that it assists differently in different cases to address the jury last rather than first, or the opposite. However, as was stated earlier, granting the accused an additional advantage in this way does not equate to remedying an unfairness in the legislation. The existing provisions regarding the order of jury addresses are fair; they may just not be the most desirable. [Emphasis added.]

[70] It cannot be argued that the ordering of peremptory challenges as between co-accused has a potentially more significant impact on the fairness of the process than does the ordering of closing addresses as between the accused and the Crown. The former is much less significant than the latter. The above-quoted words of Cory J. are applicable to s. 635(2). The procedure set out in s. 635(2) for the ordering of peremptory challenges as between co-accused does not violate s. 11(d) of the Charter even if some other procedure might be regarded as more desirable.[^1]

[71] I would hold that s. 635(2) is constitutional.

The Severance Applications

(i) The Proceedings at Trial:

[72] The appellants advanced what are referred to as “cut throat” defences. Each claimed that the other murdered Constable MacDonald. It was known to counsel prior to trial that the defences would be antagonistic and that counsel for Pennett would seek to elicit evidence of Suzack’s bad character and his propensity for violence especially when he had been drinking.

[73] The first attempt by Pennett to introduce evidence of Suzack’s propensity for violence came during the case for the Crown. The Crown wanted to call evidence that Suzack had met a person named Vince Hurd in a tavern about five hours before the murder. They discussed a possible drug deal. A quarrel developed and Suzack threatened Hurd. Hurd put a knife to Suzack’s throat. Later, outside the tavern, Suzack threatened Hurd with a nine millimeter handgun (the murder weapon) that he had retrieved from the front seat of his car. The trial judge ruled that the Crown could lead some of the evidence proffered by Hurd but it could not lead evidence of the threats and, in particular, could not lead evidence of the threat made by Suzack with the murder weapon. Counsel for Pennett then indicated that he intended to elicit that evidence on cross-examination of Hurd to demonstrate Suzack’s propensity for violence. Counsel for Suzack argued that neither the Crown nor Pennett should be allowed to introduce any of the evidence.

[74] Trainor J. ruled that Pennett could adduce the evidence which he had ruled the Crown could not lead. He said:

… However, the pointing of the nine mm. gun in the face of another human being, just hours before the same gun murdered Constable MacDonald, is relevant and sufficiently probative of the issues raised by the hostile defences to be admitted. It is for the jury to say what weight should be given to the evidence in light of the fact that Mr. Suzack appears to have been easily persuaded to abandon his threat and in light of the evidence of the conduct of Mr. Hurd in placing a knife at the throat of the accused Suzack. I will therefore, allow the cross-examination to the extent that I have indicated.

[75] There was no application for severance after the trial judge’s ruling and counsel for Pennett adduced the evidence of Suzack’s threatening Hurd with the murder weapon. The failure to move for severance at this point is best explained by counsel for Suzack’s estimation of the probative value of the Hurd evidence. In his later submissions, he said:

The earlier evidence from Vince Hurd in my submission, told us nothing. And as I said that it was inadmissible because it was provoked behaviour that did not include violence.

[76] The Crown completed its case about two weeks after the Hurd evidence was admitted. There was no application for severance at the end of the Crown’s case. Suzack testified in his own defence. During his examination-in-chief, he testified as to his extensive criminal record. He also acknowledged that he was a long-time drug dealer and was proficient in the use of weapons, including handguns. He admitted that the murder weapon was his and that he had it with him on the night of the murder. He also admitted that he repeatedly struck Constable MacDonald with his fist and with the murder weapon. Finally, he acknowledged that he was on parole at the time of the murder and was in breach of the terms of his parole.

[77] Counsel for Pennett began his cross-examination of Suzack with a detailed review of his criminal record. He questioned Suzack extensively about the circumstances surrounding many of the convictions, especially those involving assaults. He also cross-examined Suzack about the confrontation with Hurd. Court was adjourned for the day in the middle of this cross-examination. The next morning, counsel for Suzack made its first application for severance. He contended that the cross-examination, while admissible from Pennett’s perspective to show Suzack’s propensity for violence, so prejudiced Suzack’s defence as to require a severance. The Crown and Pennett opposed the motion. The trial judge refused to sever the trials.

[78] Counsel for Pennett continued his cross-examination of Suzack. He suggested to Suzack that he had told a friend, Paul Gibbs, a few days before the murder, that he was not going back to jail and that if confronted by the police, he would “shoot it out.” Suzack denied making these statements. Counsel also suggested to Suzack that after the shooting, he had spoken to Mr. Gibbs on the phone and told him that he shot MacDonald in self-defence. Suzack denied the conversation. Counsel also suggested to Suzack that in a subsequent conversation he told Mr. Gibbs that Pennett was not “willing to work with me” on the defence. Again, Suzack denied this suggestion. The trial judge cautioned the jury that suggestions from counsel were not evidence.

[79] Counsel for Pennett suggested to Suzack that he had changed his story from self-defence when he became aware of evidence which could suggest that Pennett had fired the fatal shots. Suzack indicated that his story had been “consistent from the start.” Counsel then said “you’ve never told anyone this story ‘til you got on the stand.” Suzack replied that he had told his lawyers.

[80] At the conclusion of counsel’s cross-examination, counsel for Suzack made a second application for severance. In addition to the prejudicial effect of the propensity evidence adduced during the cross-examination of Suzack, counsel relied on two additional factors. First, he argued that the suggestion that Suzack had confessed to Mr. Gibbs prejudiced Suzack. In making this submission, counsel indicated that he assumed that Mr. Gibbs would give evidence in support of the suggestions counsel had advanced.[^2] Counsel for Suzack also argued that the suggestion that Suzack had not told his story to anyone before he testified could prejudice Suzack in that it might lead the jury to use Suzack’s exercise of his right to silence against him.

[81] Counsel for Pennett and the Crown opposed the motion and the trial judge dismissed it.

[82] Suzack’s third motion for severance came after counsel for Pennett’s opening statement to the jury at the commencement of Pennett’s defence. Counsel told the jury that it was Pennett’s position that Suzack had killed Constable MacDonald. Counsel referred to Suzack as a “coward” and a “psychopath.” Counsel for Suzack claimed that the inflammatory nature of the opening had so tainted the jury as to render it unable to return a true verdict against Suzack. Counsel for Pennett and the Crown opposed the motion. The trial judge refused to sever the trial.

[83] The fourth and final motion for severance came after counsel for Pennett’s closing address. Suzack’s counsel observed that counsel for Pennett had made extensive reference to the evidence which he suggested demonstrated Suzack’s propensity for violence, particularly when he had been drinking. Counsel claimed that Pennett’s counsel had tried to focus the trial on Suzack’s character rather than on the events which had occurred immediately before the shooting. He referred to counsel’s description of Suzack as “a time bomb” and “crazy and evil.” It was counsel’s submission that the stress laid on Suzack’s propensity for violence and the pejorative language used to described Suzack made it impossible for Suzack to receive a fair trial. He also referred to one passage from the Crown’s closing address which counsel suggested amounted to an adoption by the Crown of some of counsel for Pennett’s comments about Suzack’s character.

[84] The trial judge dismissed this motion without calling on counsel for the Crown or Pennett.

(ii) Should Trainor J. have ordered severance?

[85] Motions for severance are governed by s. 591(3) of the Criminal Code. That section provides that a judge may direct severance where “the interests of justice so require.” Like the change of venue provision, this section vests a broad discretion in the trial judge. That discretion must be exercised bearing in mind the competing interests of the public and the accused. In this case, Trainor J. had to consider the competing interests of Suzack, Pennett and the Crown. Suzack wanted severance, the other two did not.

[86] Appellate review of the exercise of the discretion to grant or refuse severance must afford the same level of deference to the trial judge as that accorded to other discretionary decisions made by the trial judge: see R. v. Litchfield (1993), 86 C.C.C. (3d) 97 at 113-14 (S.C.C.).

[87] In reviewing Trainor J.’s refusal to order severance, I begin with the proposition that persons accused of the joint commission of a crime should be tried together. That presumption applies with particular force where the co-accused are each alleging that the other is the guilty party: R. v. Crawford (1995), 1995 138 (SCC), 96 C.C.C. (3d) 481 at 497 (S.C.C.)

[88] Separate trials where co-accused are blaming each other for the crime raise not only the danger of inconsistent verdicts, but also a real concern that the truth will not be discovered at either trial. It is axiomatic that the truth of an allegation is best tested through a process which requires the accuser to confront the accused with the allegation and gives the accused a chance to respond to the allegation. If co-accused who are blaming each other for a crime are allowed to do so in separate trials, neither jury will have the benefit of that process. If the accused are tried separately, it is highly unlikely that either jury will hear the complete story. As Professor Elliot said in “Cut Throat Tactics: the freedom of an accused to prejudice a co-accused”, [1991] Crim. L.R., 5 at 17:

… it is undeniable that the full truth about an incident is much more likely to emerge if every alleged participant gives his account on one occasion. If each alleged participant is tried separately, there are obvious and severe difficulties in arranging for this to happen without granting one of them immunity. In view of this, on all but exceptional cases, joint trial will be resorted to, despite the double bind inevitably involved…

[89] In his reasons for refusing severance, delivered after the trial, Trainor J. recognized both the presumption in favour of joint trials in cases of alleged joint participation in crimes and the risk that the truth could be a casualty of any severance order:

Secondly, this killing appeared to me to be the result of a joint venture, where the two accused, who were long time friends, either acted in concert and assisted one another as principals or one was the shooter (that caused death) and the other aided for the purpose of the killing. There were only three people on the lawn at 1124 Gordon Street that night. They were Constable MacDonald, Clinton Suzack and Peter Pennett. The fact that the shooter (the one that fired the fatal shots) was guilty of first degree murder was not an issue. The defence position was that the shooting was an isolated and totally unexpected act of violence. They told the jury that determination of the shooter was the vital issue to be decided. Each accused said the other was the killer. Counsel for each accused did his best to create a reasonable doubt in the minds of the jury. The jury heard and judged the evidence of each accused. In separate trials the jury will not likely have this important evidence. That alone, in a case involving common participation and aiding, cannot be conducive to a just verdict.

[90] The presumption in favour of a joint trial of accused alleged to have jointly committed an offence had strong application by the time Trainer J. was asked to order separate trials. Suzack, through his own testimony, admitted that he and Pennett were involved in a joint criminal enterprise. According to him its purpose was to disable but not kill Constable MacDonald. The prosecution had led a formidable case in support of its position that Pennett and Suzack were jointly responsible for the murder of Constable MacDonald. Trainor J. had much more than an allegation of joint criminal conduct when he was asked to order severance. The evidence had overwhelmingly established that Suzack and Pennett were engaged in a joint criminal enterprise. On Suzack’s evidence only the scope of that joint enterprise was in dispute. Was it a common design to murder or to disable? It was only when Pennett testified that a version of events not involving a joint criminal enterprise emerged.

[91] Counsel for Suzack’s task in advancing this ground of appeal is a difficult one. He is faced with what I would describe, for the reasons set out above, as a strong presumption in favour of a joint trial. He must also contend with the limited nature of review of the trial judge’s decision available on appeal. Counsel attempts to overcome these hurdles by reliance on the language of Sopinka J. in R. v. Crawford, supra, at 497-98:

… The general rule, therefore, is that the respective rights of the co-accused must be resolved on the basis that the trial will be a joint trial. This does not mean, however, that the trial judge has been stripped of his discretion to sever. That discretion remains, and can be exercised if it appears that the attempt to reconcile the respect rights of the co-accused results in an injustice to one of the accused. [Emphasis added.]

[92] Counsel submits that the injustice to Suzack resulted from the evidence of his bad character and propensity for violence adduced by Pennett. He concedes that the evidence was admissible on behalf of Pennett to support his position that Suzack was the shooter. Counsel contends, however, that the probative value of the evidence in aid of Pennett’s defence was at least equaled by the prejudicial effect it had on Suzack’s defence. He argues that the prejudice to Suzack increased as the trial progressed. What began as relatively unimportant evidence adduced during the cross-examination of Hurd became a dominant theme of the trial by the time Pennett’s defence was complete. In support of this submission, counsel for Suzack points out that most of counsel for Pennett’s closing address was directed at Suzack’s propensity for violence. It is counsel’s position that no instruction Trainor J. could have given to the jury could have adequately protected Suzack against the misuse of the propensity evidence by the jury when determining Suzack’s culpability. As Pennett was entitled to elicit the evidence, counsel argues that severance was the only way that each accused could be treated fairly.

[93] This submission turns on the contention that no instruction could adequately protect Suzack against misuse of the propensity evidence. The other bases for severance advanced at trial are not put forward as separate grounds for severance on appeal, although counsel does argue that the inflammatory opening and closing by Pennett’s lawyer exacerbated the prejudice caused to Suzack by the admission of the propensity evidence.

[94] The jury heard a good deal of evidence which cast Suzack in a bad light. However, much of that evidence would have been properly before the jury had Suzack been tried alone.[^3] His very extensive criminal record, his activities as a large-scale drug dealer, his familiarity with and use of weapons, his status as a parole violator, and the outstanding warrant for his arrest were all before the jury by the time Suzack completed his evidence in-chief and before he saw the need to apply for severance. While Mr. Hurd’s testimony involving Suzack’s threatened conduct towards him about five hours before the murder would not have been before the jury but for Pennett’s participation in the trial, I share Suzack’s trial counsel’s view that that evidence was not particularly significant (see, supra, para. 74). Any significance it had was further diminished by Suzack’s admission that he used that very same weapon to do much more than threaten Constable MacDonald immediately prior to his murder. Suzack admitted that he used the weapon in an effort to beat Constable MacDonald into a state of unconsciousness.

[95] The extensive reference to the facts underlying Suzack’s numerous convictions would not have been admissible but for Pennett’s participation in the trial. In my mind, that is the only significantly prejudicial evidence that was before this jury on the joint trial and would not have been before a jury had Suzack been tried alone. The admission of that evidence alone does not overcome the competing interests which favoured a joint trial.

[96] Suzack’s argument does not, however, turn on the mere admissibility of this prejudicial evidence, but rather on the use that the jury were invited to make of that evidence. Had Suzack been tried alone, the Crown could not have suggested to the jury that the evidence demonstrated Suzack’s propensity for violence and that propensity could be used in determining his involvement in the murder of Constable MacDonald. Indeed, the trial judge would have had to make it clear to the jury that they could not use the evidence for that purpose. On a joint trial, Pennett could, however, advance the propensity argument. He did so repeatedly and forcefully.

[97] Trainor J. had to decide whether he could reconcile the competing rights of Suzack and Pennett and provide a fair trial for both. His ability to do so turned on whether the jury could be instructed in such a way as to permit the use of the propensity evidence as part of Pennett’s defence while at the same time preventing the misuse of the evidence as part of the Crown’s case against Suzack. Fashioning the required instruction was not an easy task and properly applying it was even more challenging.

[98] Suzack relied on the judgment of Glithero J. in R. v. Moscato and Thurston, [1995] O.J. No. 3712 (Gen. Div.) where, in very similar circumstances, he ordered severance after concluding that the jury could not be instructed on the proposed propensity evidence in a manner which was fair to both accused. I take no issue with the manner in which Glithero J. exercised his discretion in that case. It is not, however, the law that whenever a trial judge is faced with propensity evidence led by one accused against another that he must order severance: R. v. Kendall and McKay (1987), 1987 180 (ON CA), 35 C.C.C. (3d) 105 at 127-28 (Ont. C.A.); R. v. Tom, [1997] O.J. No. 2807 (C.A.). Trial judges must make individual evaluations of the efficacy of limiting instructions in the particular circumstances of each case.

[99] In deciding that the difficulties inherent in properly instructing the jury on the use of the evidence of Suzack’s propensity for violence did not warrant separate trials, Trainor J. placed reliance on the jury’s ability to follow and apply difficult instructions. In doing so, he echoed the strong words of Chief Justice Dickson in R. v. Corbett (1988), 41 C.C.C. (3d) 385 at 400-401 (S.C.C.):

In my view, it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense. The jury is, of course, bound to follow the law as it is explained by the trial judge. Jury directions are often long and difficult, but the experience of trial judges is that juries do perform their duty according to the law. … … Juries are capable of egregious mistakes and they may at times seem to be ill-adapted to the exigencies of an increasingly complicated and refined criminal law. But until the paradigm is altered by Parliament, the court should not be heard to call into question the capacity of juries to do the job assigned to them. The ramifications of any such statement could be enormous. Moreover, the fundamental right to a jury trial has recently been underscored by s. 11(f) of the Charter. If that right is so important, it is logically incoherent to hold that juries are incapable of following the explicit instructions of a judge. … [Emphasis added.]

[100] The Chief Justice made these comments in support of his conclusion that the Crown could cross-examine an accused charged with murder on a prior murder conviction because the jury could properly follow a direction that evidence of the prior murder conviction was relevant only to the credibility of the accused.

[101] Trainor J. also considered the likelihood that the jury would misuse the evidence of the prior misconduct by Suzack when considering the case against him. He said:

… The violence on the lawn on Gordon Street, some of which was admitted by Suzack and was otherwise proved by many witnesses, where a police officer was ambushed by one or the other of the accused and more likely by both, his leg fractured in two places at the outset, then, while unable to get up, he is punched by both accused, then pistol whipped by Suzack, while Pennett was holding him and trying to get his gun, then executed after emptying his pistol, is so extreme that it renders prior acts of violence by Suzack, disclosed in his record and cross-examination, of little consequence to a trier of fact. [Emphasis added.]

[102] Trainor J.’s assessment of the jury’s ability to apply difficult instructions and his assessment of the potential for misuse of the propensity evidence by the jury were relevant considerations in determining whether to grant severance. I can detect no error in either assessment.

[103] In addition to arguing that no instruction could protect Suzack from the misuse of the powerful propensity argument advanced by Pennett, counsel for Suzack made two additional submissions. As indicated above, the trial judge gave his reasons for refusing severance after the trial was completed. Counsel does not suggest that there was anything improper with the trial judge waiting until the end of the trial to give detailed reasons for refusing severance. He submits, however, that the reasons reveal ex post facto reasoning based on the verdicts of the jury. I read Trainor J.’s reference to the verdicts of the jury in his reasons as no more than an indication that in his mind those verdicts confirmed the correctness of his decision to refuse severance and, specifically, his assessment that propensity evidence would not sway the jury. I do not think that he used the verdicts to justify his decision, or that his reasons suggest that he presumed the guilt of either Suzack or Pennett when deciding whether to order severance.

[104] Counsel also argued that the trial judge improperly used the timing of the motion for severance as a factor militating against severance. As indicated above, Suzack first moved for severance during his cross-examination. Suzack knew the nature of Pennett’s defence before the trial started and he knew that when he testified, he would expose himself to cross-examination by counsel for Pennett on his character and on the circumstances surrounding his many previous convictions for acts of violence. Despite this, he elected to enter upon his defence in the course of the joint trial without bringing any motion for severance.

[105] The point in a trial at which a severance application is made is relevant to the determination of the “interests of justice”: R. v. M.(B.) (1998), 1998 13326 (ON CA), 42 O.R. (3d) 1 at 9 (C.A.); R. v. C.(D.A.) (1996), 1996 8341 (BC CA), 106 C.C.C. (3d) 28 (B.C.C.A.), aff’d, [1997] 1 S.C.R. 8. As Proulx J.A. said in R. v. Cross (1996), 112 C.C.C. (3d) 410 at 420 (Que. C.A.), leave to appeal to S.C.C. refused (1997), 114 C.C.C. (3d) vi:

However, the time at which such motion is brought is likely to have an influence on the judge’s decision whether or not to order separate trials. The considerations concerned with the proper administration of justice are more important at this stage. This is all the more true where the trial is a jury trial. … The trial judge has the duty to take into account the practical consequences which an order for separate trials may have. He must also assess the potential prejudice which the co-accused will suffer should he grant the motion.

[106] Trainor J. had to consider the “practical consequences” of ordering severance several weeks into a complicated and highly publicized trial. Dozens of witnesses had already testified and a great deal of time and money had been spent bringing the trial to the point it was at when the first severance motion was brought. The effective use of limited judicial resources and some consideration of those who must undergo the ordeal of testifying merit some weight when determining the dictates of “the interests of justice” as required by s. 591(3).

[107] Trainor J. also alluded to another practical problem that would arise if he ordered severance part way through Suzack’s cross-examination. If Trainor J. ordered severance, Suzack’s trial could not continue since the jury had heard the potentially prejudicial evidence. If Pennett’s trial continued before that jury, as he wanted it to, the status of the evidence given by Suzack to that stage of the joint trial would have to be resolved. He had taken the stand in his own defence. If severance was ordered and Pennett’s trial continued, would Suzack’s evidence be part of Pennett’s trial? Would Suzack be required to resume the stand and subject himself to further cross-examination? Would Pennett be required to call Suzack as a witness? Or would the trial judge be obliged to declare a mistrial and direct that two separate trials be held? All of these very practical problems had to be addressed because of the timing of the application. I see no error in Trainor J.’s factoring the timing of the application into his determination to refuse severance.

[108] The propensity evidence introduced by Pennett and his heavy reliance on the propensity argument posed a threat to Suzack’s right to a fair trial. Certainly, severance was an option. That option was not, however, without its own difficulties. The Crown and Pennett vigorously opposed severance. Trainor J. had to balance these competing interests. I do not think his refusal to order severance reflects any error in principle or resulted in a miscarriage of justice.

The trial judge’s instruction on the propensity evidence

[109] Suzack’s next ground of appeal flows from the trial judge’s refusal to grant severance. He submits that Trainor J. failed in the difficult task of properly instructing the jury as to the use it could and could not make of the propensity evidence. Counsel contends that the trial judge failed to reconcile the competing interests of Pennett and Suzack. He argues that Trainor J. had to make two propositions clear to the jury:

• They could use the propensity evidence when considering Pennett’s guilt. The jury were entitled to use that evidence in support of Pennett’s position that Suzack was the shooter and he was not involved in the murder.
• They could not use the propensity evidence when determining Suzack’s guilt. The jury had to be instructed that the evidence could not assist the Crown in any way in proving Suzack’s involvement in the murder.

[110] The Crown counters this submission with the contention that the second of the two instructions set out above was not necessary. The Crown argues that once propensity evidence was properly admitted at the behest of Pennett, the jury was entitled to use that evidence along with the rest of the evidence in determining Suzack’s guilt. On this view of the law, both the Crown and Pennett could rely on the propensity evidence as circumstantial evidence of Suzack’s culpability even though the Crown could not have relied on the evidence for that purpose had Suzack been tried alone.

[111] Where accused are tried jointly, each is entitled to the constitutional protections inherent in the right to a fair trial. Those protections include the right to make full answer and defence and the right to be shielded from evidence which unfairly prejudices an accused. An accused’s right to a fair trial does not, however, entitle that accused to exactly the same trial when tried jointly as the accused would have had had he been tried alone: R. v. Crawford, supra, at p. 497-98; R. v. Pelletier (1986), 1986 1179 (BC CA), 29 C.C.C. (3d) 533 (B.C.C.A.). In joint trials, one accused may elicit evidence or make submissions in support of his defence that are prejudicial to the other accused and could not have been elicited or made by the Crown. In those cases, the respective rights of each accused must be balanced by the trial judge so as to preserve the overall fairness of the trial. In Crawford, supra, Sopinka J. said, at p. 498:

I have gone to some length to stress that Charter rights are not absolute in the sense that they cannot be applied to their full extent regardless of the context. Application of Charter values must take into account other interests and, in particular, other Charter values which may conflict with their unrestricted and literal enforcement. This approach to Charter values is especially apt in this case, in that the conflicting rights are protected under the same section of the Charter.

[112] Sopinka J. balanced the competing constitutional interests in Crawford by holding that while an accused (unlike the Crown) could lead evidence that the co-accused had failed to give his version of events prior to trial, the co-accused was entitled to a jury instruction that pre-trial silence was relevant only to credibility and was not evidence of the co-accused’s guilt. In addition the jury had to be told that pre-trial silence was only one factor to be considered in assessing credibility and that depending on the evidence, the co-accused’s pre-trial silence may be explained by factors which do not reflect adversely on the co-accused’s credibility: R. v. Crawford, supra, at 500. Sopinka J. balanced the competing interests by allowing the co-accused to advance evidence of the co-accused’s silence while at the same time placing limits on how the jury could use that evidence.

[113] R. v. Crawford, supra, is consistent with the earlier decision of this Court in R. v. Kendall and McKay, supra, at p. 128. Goodman J.A., for the court, held that the trial judge had erred in excluding relevant and potentially probative evidence offered by one accused because it potentially prejudiced the defence of the other co-accused. He observed that exclusion of the evidence completely sacrificed the interests of one accused in favour of those of the other. He further held that a limiting instruction and not the exclusion of the evidence was the appropriate response when an accused sought to adduce evidence which was relevant to his defence but prejudicial to the defence of the co-accused. Goodman J.A. said:

…There are other conflicts which may arise during the course of a joint trial, prejudice from which can be avoided to either or both accused by a careful direction on the part of a trial judge….

[114] The authorities fully recognize the need to balance the competing interests of co-accused in a joint trial. They regard a carefully crafted jury instruction as the best way to achieve that balance.

[115] For reasons which I cannot understand, the Crown contends that there is no need to balance the competing interests of co-accused where one leads evidence of the other’s propensity for violence. The Crown takes the position that Suzack had to suffer the use of propensity evidence to bolster the Crown’s case against him as a consequence of the joint trial. According to the Crown, fairness concerns which would preclude the Crown from relying on Suzack’s propensity for violence as evidence of his culpability disappear when that evidence is adduced by a co-accused.

[116] I cannot accept the Crown’s submission. It is a fundamental tenet of our criminal justice system that criminal culpability depends on the Crown’s ability to prove beyond a reasonable doubt that the accused committed the specific act alleged in the indictment. It has been established for over 100 years that the Crown cannot make its case by showing that the accused engaged in misconduct other than that alleged against him for the purpose of showing that the accused was the type of person who would commit the crime alleged. Makin v. The Attorney General for New South Wales, [1894] A.C. 57 at 65 (P.C.). Propensity evidence and the reasoning that it invites imperil this fundamental tenet by inviting conviction based on the kind of person the accused is shown to be or based on acts other than those alleged against the accused: R. v. D.(L. E.) (1989), 50 C.C.C. (3d) 142 at 161-162 (S.C.C.). I would not discard a rule that is so central to an accused’s right to a fair trial to further a co-accused’s right to make full answer and defence.

[117] The Crown’s position is also inconsistent with the manner in which the competing rights of co-accused have traditionally been balanced in joint trials where evidence is adduced which is admissible against only one of the accused. In those cases, courts have held that a proper instruction limiting the use of the evidence strikes the appropriate balance between the respective rights of the co-accused. For example, when the Crown leads evidence of a statement made by one accused, the jury must be told that the statement is admissible only against the maker of the statement and cannot be considered in determining the co-accused’s culpability: R. v. Olah (1997), 115 C.C.C. (3d) 389 (Ont. C.A.), leave to appeal to S.C.C. refused (1998), 121 C.C.C. (3d) vi; R. v. Court (1995), 1995 1741 (ON CA), 99 C.C.C. (3d) 237 at 258-59 (Ont. C.A.). I see no essential difference between that kind of limiting instruction and one which limits the use of propensity evidence tendered by one co-accused against the other. It may well be that a proper limiting instruction with respect to propensity evidence will be more difficult for a jury to apply than other kinds of limiting instructions. That difficulty is a matter to be considered by the trial judge in determining whether to grant severance. It is no reason to abandon entirely the attempt to balance the respective rights of co-accused in a joint trial. If a trial judge is satisfied that a proper limiting instruction cannot be given, then severance is clearly preferable over a joint trial which sacrifices entirely one accused’s right to be tried on the allegation in the indictment and not on prior misconduct.

[118] The Crown relies on R. v. Valentini (1999), 132 C.C.C. (3d) 262 (Ont. C.A.) in support of its submission that no limiting instruction with respect to the propensity evidence was necessary. In that case, Valentini and three co-accused were charged with conspiracy to import cocaine and other related charges. Two of the co-accused advanced a duress defence claiming that Valentini had threatened to kill them if they did not take part in the importing scheme. Valentini’s defence was that he had no part in any plan to import cocaine.

[119] The Crown and co-accused led evidence of threats made by Valentini in connection with the importation scheme that was the subject of the conspiracy charge. That evidence was relevant to show Valentini’s role in the conspiracy and to the duress defence. There was no objection to that evidence.

[120] One of the co-accused also led evidence of prior acts of violence committed by Valentini that were not connected to the importation scheme. The co-accused testified that he was aware of these prior acts of violence when Valentini threatened him. The evidence was led to support the co-accused’s duress defence and to establish the basis for the co-accused’s fear that Valentini would kill him if he did not co-operate. The Crown could not have led this evidence as part of its case.

[121] The trial judge instructed the jury that evidence of Valentini’s prior acts of violence known to the co-accused was admissible to support the duress defence.

[122] On appeal, Valentini unsuccessfully challenged the instructions on his prior acts of violence. After pointing out that, unlike the Crown, a co-accused can lead propensity evidence against another co-accused, Rosenberg J.A. said, at p. 279:

Accordingly, the classic direction that must be given in a case where the prosecution is allowed to lead evidence of bad character [citation omitted] has limited application. In my view, where evidence of bad character is led by a co-accused, the trial judge should, where possible, minimize the prejudice to the accused while ensuring that the jury understands the full force of the evidence in favour of the co-accused. In order to best accomplish these dual purposes, the jury must be told in clear terms the reason why the evidence has been admitted. [Emphasis added]

[123] This passage is entirely consistent with the balancing process described in R. v. Crawford, supra. The balance is achieved by focussing the jury’s attention on the permitted use in favour of the co-accused and “minimizing” the prejudice to the other accused. It is also noteworthy that in the above passage Rosenberg J.A. does not suggest that the “classic” limiting instruction given with respect to disposition evidence has no application when the evidence is led by a co-accused. He points out that the traditional instruction has “limited application”. I take him to mean that the usual limiting instruction standing alone would be inadequate since it could prejudice the position of the co-accused who led the propensity evidence.

[124] Rosenberg J.A. then reviewed the jury instruction and found that it properly related the evidence of the prior acts of violence to the duress defence. He concluded this part of his reasons at p. 280:

It would not have been appropriate to direct the jury that the prior acts of violence were not admissible to show that Valentini was the type of person likely to have committed the offence. The prior acts of violence might well have been admitted for that purpose, as shown in Kendall [ R. v. Kendall (1987), 1987 180 (ON CA), 35 C.C.C. (3d) 105 (Ont. C.A.)]. The fact that the trial judge did not extend the use of the evidence for that purpose inured to Valentini’s benefit. There was little risk that the jury would have been overwhelmed by the prior acts of violence or diverted from the real issues in the case. The threats made by Valentini as testified to by Marsh, Switzer Tepsa and Bonin in attempt to persuade them to enter the conspiracy were far more significant. That evidence was an essential part of the Crown’s case and the case for the other accused. No complaint could be made about the admission of that evidence or its use to show that Valentini was a member and chief architect of the conspiracy.

[125] The Crown relies on the first sentence in this passage. I do not read that sentence as suggesting that the jury could use the evidence of prior acts of violence to infer Valentini’s propensity for violence to support the Crown’s case against Valentini. Rather, I understand it to mean that the normal limiting instruction standing alone would not have been a proper instruction because propensity reasoning was available to the co-accused in support of their duress defence. Rosenberg J.A. does not suggest that it would have been inappropriate to give the customary limiting instruction if it was made referable only to the Crown’s case against Valentini. Instead, he concludes that, given the nature of the propensity evidence, the nature of the allegation and the clear instruction as to the limited use which could be made of the propensity evidence, there was no need for a further limiting instruction. In short, Rosenberg J.A. concluded that the trial judge properly balanced the competing interests of the co-accused. He did not hold that the Crown was entitled to use propensity reasoning to prove its case once propensity evidence was adduced by a co-accused.

[126] R. v. Valentini, supra, confirms the trial judge’s obligation to balance the competing interests of co-accused where those interests clash in a joint trial. It also demonstrates that the way the balance is achieved will vary with the circumstances of the case. What is important is that the jury understand the purpose for which the evidence is admitted and that the prejudice to the co-accused be minimized.

[127] In a case like this one where an accused leads evidence of the co-accused’s propensity for violence in support of the position that the co-accused committed the crime, 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. An example of an appropriate limiting instruction is found in the draft specimen charges developed by the Ontario Specimen Jury Instruction Project under the direction of the Honourable Mr. Justice David Watt. That instruction provides:

(1) Sometimes a person charged with a crime will say, “it was not me, it was (an) other person charged who did it”, and will point to evidence that this other person had an opportunity and a disposition to do it. In this case, (NOA1) is saying that (NOA2) committed the crime, and points to evidence (NOA2) is the sort of person who would do such a thing. (2) It is up to you to determine whether the disposition evidence, alone, or together with other evidence, raises a reasonable doubt that (NOA1) committed the offence charged. However you must not use the disposition evidence in any way when you consider whether Crown counsel has proven the case against (NOA2). No one can be convicted of a crime just for being the sort of person who might have committed it. (3) In other words, you may consider evidence of (NOA2)’s opportunity and disposition to commit the offence(s) charged in deciding whether you have a reasonable doubt that (NOA1) committed it (them), but you must not use evidence of (NOA2)’s disposition to find (NOA2) guilty of it (them).

[128] Some will say that a jury could not possibly follow the Committee’s proposed instruction. I do not pretend that there is no risk that the jury would not follow that instruction. Like any limiting instruction, there is a risk that the jury will not abide by it. As long as we maintain trial by jury, however, courts must proceed on the basis that juries accept and follow the instructions given to them by the trial judge: R. v. Corbett, supra, at p. 401; R. v. Eng (1999), 1999 BCCA 425, 138 C.C.C. (3d) 188 at 201-202 (B.C.C.A.). That is not to say that in a specific case a trial judge could not decide that the risk of misuse of propensity evidence offered by one co-accused could not be adequately addressed by a limiting instruction. If a trial judge reaches that conclusion, he or she will have no choice but to order severance. It would, however, be wrong for a trial judge to accept as a general proposition that a jury would not or could not abide by a limiting instruction.

[129] Trainor J. did not have the advantage of the specimen instruction prepared by Justice Watt’s Committee and his instruction did not conform with that specimen charge in all respects. The instruction did, however, in my view, adequately protect Suzack’s right to a fair trial.

[130] Trainor J. told the jury that the evidence of Suzack’s threat against Hurd and the cross-examination on his criminal acts were evidence of character and disposition for violence. He then immediately told the jury why the evidence had been admitted:

… The evidence was introduced by Mr. Fleming [counsel for Pennett] in cross-examination and there is other evidence on this subject including the accused’s criminal record. Mr. Fleming says that as between the two accused the question of who, Suzack or Pennett would be more likely to have shot Constable MacDonald makes the evidence of disposition for violence relevant.

[131] Trainor J. followed his instructions as to the purpose for which the evidence was admitted with a limiting instruction:

The evidence cannot be used, however, to say that drug dealers are murderers or that people who on other occasions have acted violently committed murder on this occasion. We try cases on the crime that was committed, not on the past records that persons have, or on the basis that they may be of bad character or be disposed towards violence.

[132] It would have been preferable had Trainor J. made it clear that the limiting instruction applied only to the Crown’s use of the evidence. I think, however, that the jury having just heard the purpose for which the evidence was adduced would understand that they could not use the evidence to convict Suzack but they could use the evidence to acquit Pennett.

[133] Trainor J. also minimized the potential prejudice to Suzack by the admission of the propensity evidence in two other important ways. He instructed the jury that the evidence concerning the threatening of Hurd with the gun was open to different interpretations at least one of which supported Suzack’s evidence that he had racked the gun at the murder scene and used it to threaten the officer but had not fired the gun. Trainor J. also pointed out that Hurd admitted that he instigated the violence which culminated in the threat made by Suzack. More importantly, the trial judge focussed the jury’s attention on the actual events which led to Constable MacDonald’s murder. He said:

In this case there is much hard evidence as to the commission of the crime, I urge you to decide the case on the basis of the evidence on Gordon Street. There is ample hard evidence of cruelty and unprovoked violence that you have heard from witnesses arising from what happened on Gordon Street. My own view is, that the prior violence does not match or come close to the violence that you have heard about from the various witnesses as to the ongoing assault on Constable MacDonald. Therefore, violence on prior occasions adds very little to the case. However, having said that, it is open to an accused person such as Peter Pennett and to his counsel, to say to you, look at Suzack’s disposition for violence if you have any doubt who shot Constable MacDonald. It is one piece of evidence that you may consider … [Emphasis added.]

[134] One last factor is relevant to the determination of whether the instructions adequately protected Suzack’s right to a fair trial. The propensity evidence was adduced by Pennett primarily to demonstrate that Suzack, because of his character and propensity for violence, was the shooter. It was not the Crown’s theory that Suzack was the shooter. To the contrary, it was the Crown’s primary position that Pennett was the shooter and its secondary position that both were guilty of murder regardless of which accused fired the fatal shots. In these circumstances, the risk that the jury would misuse the propensity evidence to assist the Crown in the proof of its case against Suzack was diminished.

[135] Read as a whole and considering the positions of the parties, I am satisfied that the instructions adequately protected Suzack’s right to a fair trial.

The non-direction with respect to Suzack’s exercise of his pre-trial right to silence and access to Crown disclosure.

[136] Jurisprudence developed after Trainor J. instructed the jury has made it clear that, unlike the Crown, a co-accused may elicit evidence that the other accused failed to disclose his position prior to trial. Where the co-accused does so, the trial judge must tell the jury that the co-accused’s failure to tell his version of events prior to trial is relevant to his credibility but is not evidence of his guilt. The jury should also be told that the accused’s failure to tell his version of events prior to trial is but one factor to be considered along with all other factors in assessing the credibility of that co-accused: R. v. Crawford, supra, at 500. Suzack submits that the trial judge failed to give this instruction.

[137] Counsel for Pennett cross-examined Suzack on his failure to reveal his version of events prior to testifying. Suzack replied that his “story” had been consistent throughout and that “my lawyers have … have my rendition of it right from … .” Counsel then interrupted with another question.

[138] In his closing address, which fills some 132 pages of the transcript, counsel for Pennett made two references to Suzack’s pre-trial silence. The first reference was not a comment on Suzack’s silence, but rather a submission that he had lied in his cross-examination when he said he spoke to no one other than his lawyer. Counsel for Pennett referred to the evidence of Gibbs concerning certain conversations with Suzack after the murder.

[139] In the second reference, counsel for Pennett made the point that his client did make a statement to the police and Suzack did not. He said:

Pennett makes an effort to explain what happened on May 15, 1994 after the preliminary. At least he tried. [This is a reference to Pennett’s statement to the police.] Suzack hangs back in the weeds and tells his story for the first time at trial, which he is entitled to do, but why didn’t he come forward and make an effort to explain what happened earlier? The answer is obvious. He was prepared to sit back, see how things shaped up, tailor his evidence around the evidence – the physical evidence and then be prepared to sacrifice Peter Pennett’s life in this trial to try and save his own.

[140] I do not think this submission can be taken as a suggestion that Suzack was guilty because he did not give a statement to the police. Rather, it is a submission that Suzack’s silence was part of his plan to blame Pennett for the murder. Pennett had led evidence that Suzack had told Gibbs shortly after the murder that Suzack would “fight his own angle” and that if Pennett would not co-operate there was nothing he could do for Pennett.

[141] The trial judge did not tell the jury that Suzack’s pre-trial silence could not be evidence of his guilt. Nor did he suggest to the jury that Suzack’s pre-trial silence was relevant to his credibility. The trial judge did not address the topic. I do not think that his failure to advert to Suzack’s pre-trial silence prejudiced Suzack. The jury could not possibly have taken from the evidence or counsel’s submissions that Suzack’s silence was positive evidence of his guilt. The trial judge’s failure to refer to his pre-trial silence in addressing factors relevant to Suzack’s credibility could not have prejudiced Suzack.

[142] In a closely related submission, Suzack also contends that counsel for Pennett suggested to the jury that it could use Suzack’s access to Crown disclosure against Suzack in assessing his credibility. He contends that the submission was improper and the trial judge erred in failing to so instruct the jury: R. v. Peavoy (1997), 1997 3028 (ON CA), 117 C.C.C. (3d) 226 at 233-34 (Ont. C.A.).

[143] Counsel for Pennett did suggest to the jury in his closing that Suzack had tailored his evidence to conform to the physical evidence that had been disclosed to Suzack. Counsel made the submission in support of the contention that Suzack had decided to blame the murder on Pennett when he became aware of physical evidence which potentially implicated Pennett as the shooter (e.g. Pennett’s blood was on the murder weapon). The submission that Suzack had fabricated his defence came from the evidence of Gibbs who testified that Suzack initially admitted that he had shot Constable MacDonald but later said that he would “have to fight his own angle” and that if Pennett did not co-operate with him there was nothing Suzack would do for Pennett. Unlike the situation in R. v. Peavoy, supra, at 234, there was an evidentiary basis for counsel’s submission that Suzack had fabricated his evidence and the jury were entitled to consider that contention in assessing Suzack’s evidence.

[144] I do not take counsel to have suggested that Suzack’s evidence was suspect merely because he had received Crown disclosure. Indeed, I would be surprised had counsel made that submission since Pennett would also have received Crown disclosure prior to making his statement. I understand counsel to have suggested to the jury that Suzack’s access to Crown disclosure gave him the opportunity to do what he had told Gibbs he would do – “play his own angle”. Since counsel for Pennett did not suggest that Suzack’s exercise of his constitutional right to disclosure should count against him in the eyes of the jury, there was no need for the trial judge to deal with this topic in his instructions.

The trial judge’s instructions on joint liability for murder.

[145] Counsel for Suzack submits that the trial judge misdirected the jury as to Suzack’s potential liability for murder as a party to a common design with Pennett. He also submits that the trial judge should have instructed the jury that if Suzack and Pennett acting independently of each other formed the intention to murder Constable MacDonald then Suzack would be guilty only of attempted murder if Pennett fired the fatal shot.

[146] In his factum, counsel addresses the questions of causation and the potential liability of co-perpetrators at a somewhat abstract level. I think the force of counsel’s submission is best assessed by examining what Trainor J. said to the jury.

[147] Trainor J. prefaced his instructions on the law with this observation:

… The real issue for you, as is apparent from the way the case has been presented and argued, is whether the Crown has satisfied you beyond a reasonable doubt that Suzack and Pennett, or either of them, are liable for murder as principals or as parties.

[148] There was no doubt that both appellants knew that Constable MacDonald was a police officer acting in the execution of his duty when he was killed. Therefore, if one or both were guilty of murder, he or they were guilty of first degree murder under s. 231(4)(a) of the Criminal Code. It was also common ground that whoever fired the fatal shots was, subject to the possible “defence” of drunkenness, guilty of first degree murder.

[149] After referring to s. 21(1) of the Criminal Code, Trainor J. said:

If two or more persons act in concert, and by that I mean, in a common participation in the commission of an offence – in this case murder – and they assist one another in the commission of that offence, then they are liable as principals, provided that they each had the intention that I have referred to, meant to cause death, or meant to cause bodily harm as I have defined it. Both may be found liable, even though you are uncertain as to which of them fired the fatal shots.

[150] According to this instruction, both Suzack and Pennett could be convicted of murder regardless of which one fired the fatal shots if the Crown established three things beyond a reasonable doubt:

• that Suzack and Pennett acted in concert in the commission of the murder of Constable MacDonald;
• that Suzack and Pennett assisted each other in the murder of Constable MacDonald; and
• that Suzack and Pennett each had the culpable state of mind necessary for the crime of murder.

[151] The instruction was repeated near the end of the trial judge’s charge to the jury and was given to the jury in written form, at their request, during their deliberations.

[152] It is beyond question that where two persons, each with the requisite intent, act in concert in the commission of a crime, they are both guilty of that crime. Their liability may fall under one or more of the provisions of s. 21(1) of the Criminal Code: R. v. Sparrow (1979), 1979 2988 (ON CA), 51 C.C.C. (2d) 443 at 457-58 (Ont. C.A.). Trainor J. told the jury that if Suzack and Pennett jointly participated in the murder with the necessary intent, they were “liable as principals.” This is potentially a mischaracterization of their liability. They may have been principals or they may have been aiders or abettors depending on what each did in the course of the common design: R. v. Simpson (1988), 1988 89 (SCC), 38 C.C.C. (3d) 481 at 488-91 (S.C.C.). As Griffiths J.A. said in R. v. Wood (1989), 1989 7193 (ON CA), 51 C.C.C. (3d) 201 at 220:

… Where evidence of concerted action in the commission of the offence exists, as in the present case, then it is open to a jury to convict all of the accused either as principals, under s.229(a), or as aiders or abettors pursuant to s. 21 of the Code, even though the extent of the individual participation in the violence is unclear. …

[153] I do not, however, regard Trainor J.’s error in terminology as having any significance. The crucial issue is not whether he properly labelled the nature of the appellants’ liability, but whether he properly instructed the jury as to the essential elements which the Crown had to prove to establish joint liability for murder where the jury could not determine which of the two had fired the fatal shots.

[154] In the passage quoted above, Trainor J. told the jury that to convict Suzack as a joint participant in the murder, the Crown had to prove beyond a reasonable doubt:

• that he participated with Pennett in the commission of the murder;
• that he assisted Pennett in the commission of the murder; and
• that he had one of the intents required by s. 229(a).

[155] In my view, Suzack was guilty of murder if the Crown proved the three elements set out above. In fact, the second element (aiding) was perhaps superfluous in that it was encompassed by the broader language set out in the first element. It was unnecessary to label the nature of his participation. Indeed s. 21(1) is structured so as to avoid distinctions based on modes of participation in the crime.

[156] I also do not accept Suzack’s submission that causation had any relevance under this theory of liability. In R. v. McMaster (1996), 1996 234 (SCC), 105 C.C.C. (3d) 193 at 203 (S.C.C.), the appellant and another person beat the deceased to death. It was argued that the trial judge failed to consider whether the appellant’s blows caused the death. Lamer C.J.C. rejected this argument stating, at p. 203:

… However, the trial judge made it clear in his reasons that he was satisfied that the cousins were acting in concert and “jointly involved” in causing the death. It is a well established principle that where a trier of fact is satisfied that multiple accused acted in concert, there is no requirement that the trier of fact decide which accused actually struck the fatal blow. …

[157] I can find no error in Trainor J.’s instructions as to Suzack’s potential liability for murder as a participant in a common scheme with Suzack to commit murder.

[158] Suzack’s argument that the trial judge should have instructed the jury that he was potentially guilty of attempted murder is put this way in counsel’s factum:

If the jury concluded that Suzack intended to kill MacDonald but did not act in concert with Pennett for this purpose, and found that Pennett had shot MacDonald in the head after independently forming the intent to kill, the correct verdict would have been to find Pennett guilty of murder and convict Suzack of attempted murder.

[159] There is no air of reality to this submission and the instruction would have significantly prejudiced Suzack’s only real defence. Suzack acknowledged that he and Pennett were acting in concert when they attacked and beat Constable MacDonald. He maintained that he did not intend to kill MacDonald and did not foresee that Pennett would kill MacDonald. His purported lack of any intention to commit murder was the linchpin of his entire defence and meant the difference between a conviction for first degree murder and a conviction for manslaughter. An instruction premised on the possibility that Suzack in fact intended to murder Constable MacDonald in the course of the attack would have severely prejudiced that defence. Furthermore, the suggestion that Suzack and Pennett jointly set about to incapacitate Constable MacDonald by beating him into a state of unconsciousness, that both formed the intention to murder, but that Pennett acted independently of Suzack when, during the course of the joint attack, he gave effect to that intention by shooting Constable MacDonald is to put it charitably, farfetched.

[160] The trial judge’s instructions were, of necessity, lengthy and complicated. He refused to add to that complexity by instructing the jury on a potential basis of liability which would prejudice Suzack’s only real defence and depended upon the jury taking a most improbable view of the evidence. The jury would inevitably have been thoroughly confused by an attempted murder instruction when Suzack had admitted responsibility for the death of Constable MacDonald. Trainor J. was correct in declining to direct the jury that Suzack was potentially liable for attempted murder. The direction could only have added needless confusion to the instructions.

Crown counsel’s submission concerning Constable MacDonald’s actions.

[161] Constable MacDonald fired six shots at Suzack as Suzack approached him armed with the murder weapon. By this stage of the attack, Constable MacDonald had been disabled and pistol whipped by Suzack. Crown counsel argued that Constable MacDonald’s actions were evidence that MacDonald perceived that he was about to be shot by Suzack. The Crown urged the jury to rely on Constable MacDonald’s reaction to Suzack and not on Suzack’s claim that he only intended to continue to beat Constable MacDonald and not to kill him. Crown counsel said:

Constable MacDonald had every reason to believe that he was about to be shot by Clinton Suzack. Clinton Suzack says the officer just misunderstood. Who would you believe? Constable MacDonald tells us by his conduct that he was about to be shot. Clinton Suzack says he wasn’t. Who would you believe?

[162] The trial judge dealt specifically with this submission in his instructions. After referring to the Crown’s contention that Constable MacDonald’s reaction offered some evidence of Suzack’s intention, he said:

… If Constable MacDonald was here testifying, he would tell, or he might tell you that he thought he was going to be shot and so he shot. He could not tell you what was in the mind of the shooter. That is a question for you, and you will resolve it after considering all of the evidence that has been presented including the evidence that Constable MacDonald fired the shots that struck Clinton Suzack.

[163] The jury was entitled to consider all of the surrounding circumstances when deciding whether Suzack had the state of mind necessary for the crime of murder. Constable MacDonald’s reaction as Suzack approached him with the murder weapon was one of the circumstances. The fact that Constable MacDonald’s response taken by itself does not prove an intent to kill as opposed to some lesser intent does not render his reaction valueless in assessing Suzack’s state of mind. Pieces of evidence are not examined in isolation.

[164] It may be that the Crown’s submission overstated the potential probative force of Constable MacDonald’s reaction. If the submission went too far, Trainor J.’s instructions prevented any prejudice to Suzack.

V

PENNETT’S GROUNDS OF APPEAL

The trial judge’s instruction on the propensity evidence.

[165] Suzack argued that Trainor J. did not do enough to protect him from the prejudicial effect of the propensity evidence adduced by Pennett. I have rejected that argument. Pennett argues that Trainor J. misdirected the jury as to the probative value of that propensity evidence thereby prejudicing his defence. I would also reject that argument.

[166] Pennett argues that the trial judge should have told the jury that the evidence of Pennett’s disposition for violence could be regarded “as circumstantial evidence identifying Suzack as the principal in the homicide.”

[167] I do not quarrel with the description of propensity evidence as circumstantial evidence. However, for the reasons set out above, I cannot agree that the propensity evidence could be used against Suzack in assessing his guilt. It could, however, be used in assessing Pennett’s guilt and, in particular, his claim that Suzack perpetrated the attack on Constable MacDonald and fired the fatal shots.

[168] Counsel referred to a number of authorities which hold that evidence of a third party’s propensity for violence tendered by the defence can be circumstantial evidence that the third party committed the crime with which the accused is charged. For example, in R. v. Arcangioli (1994), 1994 107 (SCC), 87 C.C.C. (3d) 289 (S.C.C.) the court held that evidence of a third party’s (Semester) propensity for violence was admissible as evidence that the third party and not the appellant had stabbed the victim. Major J. said, at p. 298:

There is little doubt that the evidence was sufficiently probative to warrant its admission and use for the appellant’s purpose of establishing that Semester had wielded a knife in the past and, therefore, was likely to have stabbed Heffern [the victim]. If believed by the jury, that evidence was capable of supporting the appellant’s defence that it was Semester who stabbed Heffern …

[169] Arcangioli was not, however, a case in which the third party, against whom the propensity evidence was led, was a co-accused in the joint trial. In Arcangioli, the third party’s fair trial rights could not be undermined by the introduction of the propensity evidence. Major J. recognized this at p. 296:

However, the danger of a wrongful conviction does not arise where the character evidence pertains not to the accused, but to a third party witness.

[170] Where the target of the propensity evidence is not a co-accused, it is entirely proper to refer to the propensity evidence as circumstantial evidence that the third party and not the accused committed the alleged crime. Where, however, the target of the propensity evidence is also an accused on trial before the same jury, a more refined instruction is needed to balance the competing interests of the accused. In this case, that balance required that the jury understand the use they could make of the evidence on behalf of Pennett, and that they be alerted against the misuse of the evidence in deciding Suzack’s case. For the reasons set out above, I think the charge to the jury properly balanced the competing interests.

The consciousness of guilt instruction.

[171] Pennett fled the scene with Suzack after Constable MacDonald was killed and he resisted arrest. He was also reported as saying “shoot me. shoot me” when confronted by the police. Trainor J. instructed the jury that Pennett’s actions:

…may be evidence of a guilty conscience and be considered and weighed by you in the light of all the evidence in deciding guilt or innocence.

[172] Counsel for Pennett concedes that if Pennett’s explanation for his after-the-fact conduct was rejected, that conduct could be used by the jury to infer that Pennett participated in the assault on Constable MacDonald and was, therefore, culpable in his death. Counsel submits, however, that Trainor J. erred in law in failing to tell the jury that Pennett’s after-the-fact conduct could not constitute evidence that he was guilty of murder as opposed to manslaughter.

[173] Crown counsel concedes that Pennett’s after-the-fact conduct could not be used as evidence that he was guilty of murder as opposed to manslaughter: R. v. Marinaro (1996), 105 C.C.C. (3d) 95 (S.C.C.), adopting the dissent of Dubin C.J.O. (1994), 1994 1470 (ON CA), 95 C.C.C. (3d) 74 at 81-82 (Ont. C.A.). Crown counsel submits, however, that the error occasioned no substantial wrong or miscarriage of justice.

[174] The instruction to be given regarding evidence formerly referred to as evidence of consciousness of guilt and now referred to as after-the-fact conduct has been the subject of many appellate judgments since Trainor J. delivered his charge to the jury. The proper approach to that evidence was described by Weiler J.A. in R. v. Peavoy, supra, at 237-38:

Evidence of after-the-fact conduct must be relevant to a fact in issue and it may be relevant to more than one fact in issue in a trial. Like other circumstantial evidence, evidence of after-the-fact conduct must be reasonably capable of supporting an inference which tends to make the existence of a fact in issue more or less likely. The primary question is, “How is the after-the-fact conduct relevant?” This question cannot be determined in the abstract or by regard only to the evidence of the after-the-fact conduct. It will depend on the nature of the conduct and the factual context of the case, particularly the context of the position advanced by the appellant at trial; [citation omitted]. Relevance is, of course, addressed when the evidence is tendered. The relevance of after-the-fact conduct should be used to shape the instruction given to the jury in any particular case where that kind of evidence forms part of the case. [Emphasis added]

[175] Trainor J. did not have the advantage of my colleague’s reasons in R. v. Peavoy, supra. He did, however, properly identify the potential relevance of Pennett’s after-the-fact conduct. That evidence could assist the jury in determining whether Pennett was an active participant in the assault on Constable MacDonald, or, as he claimed, merely an innocent bystander who tried to defuse the situation and sat “frozen in fear” as Suzack murdered Constable MacDonald. As a matter of common sense and human experience, the jury could view Pennett’s after-the-fact conduct as consistent with him having been fully involved in the attack on Constable MacDonald. They could use the evidence for that purpose only if they rejected Pennett’s explanation for his flight and his resisting arrest. The trial judge so instructed the jury.

[176] Trainor J. could have told the jury that Pennett’s after-the-fact conduct was not evidence from which it could infer directly that Pennett had the intent required for murder as opposed to some lesser culpable intent. It would, however, have been wrong for him to suggest to the jury that the evidence had no relevance to Pennett’s potential liability for murder. To the extent that the evidence was used by the jury to infer the nature and level of Pennett’s involvement in the attack on Constable MacDonald, that evidence was relevant to his liability for murder. The extent of his participation in the attack was an important consideration in determining his level of his culpability.

[177] In any event, I am satisfied that the instruction did not result in any prejudice to Pennett. It was made clear to the jury that they could only consider the after-the-fact conduct if they were satisfied that Pennett fled because he was involved in the attack on Constable MacDonald in more than a “marginal” way. To reach that conclusion, the jury had to reject Pennett’s explanation for his conduct. The conclusion that Pennett was actively involved in the attack on Constable MacDonald, combined with the powerful physical evidence pointing to Pennett as the shooter, made the Crown’s case against Pennett on the charge of murder an overwhelming one. A more detailed instruction explaining to the jury the limited relevance of Pennett’s after-the-fact conduct to the level of his culpability would not have made any difference in the verdict returned against Pennett.

The admissibility of Pennett’s exculpatory post-arrest statements through Crown witnesses.

[178] Crown witnesses testified that while Pennett was being pursued and subdued by the police, he said “shoot me, shoot me.” That evidence was admitted as part of the Crown’s case. Counsel for Pennett argues that the admission of that statement opened the door to the admission during the case for the Crown of certain exculpatory statements made by Pennett shortly after his arrest.

[179] About six minutes after Pennett was arrested, he said to a police officer “I didn’t shoot him.” He was taken to the police station where he was asked whether he knew why he was under arrest. He replied “the guy I was with shot somebody.”

[180] Pennett attempted to adduce these statements through cross-examination, contending that they were closely connected to the pre-arrest statement (“shoot me,…shoot me”). He argued that the post-arrest statements qualified the meaning to be given to the earlier statement and should be regarded as part of that statement. He further argued that the jury could be misled by hearing only the pre-arrest statement.[^4]

[181] The trial judge, after a review of the relevant authorities, ruled that the post-arrest statements were not closely connected to the pre-arrest utterance and did not qualify or explain that utterance. He held that the post-arrest statement was subject to the general rule which prohibits an accused from introducing self-serving exculpatory statements through cross-examination of other witnesses. Trainor J. also rejected the submission that the statements had any potential non-hearsay value as evidence of Pennett’s state of mind.

[182] I agree with his ruling. The post-arrest comments were not part of the same narrative as the pre-arrest utterances. In fact, there was no narrative at all. Each statement was an isolated comment made under very different circumstances by Pennett. The post-arrest statements were blatantly self-serving and had no probative value unless accepted for the truth of their contents. That is the exact use which the general exclusionary rule referable to self-serving evidence is designed to prevent: R. v. Simpson (1988), 1988 89 (SCC), 38 C.C.C. (3d) 481 at 496 (S.C.C.); R. v. Phillips (1999), 1999 2449 (ON CA), 138 C.C.C. (3d) 297 at 301 (Ont. C.A.).

[183] Counsel for Pennett referred to authorities which would, in some circumstances, permit an accused to testify as to statements made by the accused after his arrest: e.g. R. v. Toten (1993), 1993 3427 (ON CA), 83 C.C.C. (3d) 5 at 47-48 (Ont. C.A.); Ontario, Report of the Commission on Proceedings Involving Guy Paul Morin, Vol. II, by the Honourable F. Kaufman (Toronto, Ontario Ministry of the Attorney General 1998) at pp. 1151-57; R. v. Lucas, [1963] 1 C.C.C. 1 at 10-11 (S.C.C.). The admissibility of exculpatory post-arrest statements through the testimony of an accused raises different concerns than does the admissibility of those same statements through cross-examination of other witnesses. If an accused testifies, the dangers inherent in admitting a self-serving exculpatory statement are considerably reduced. The accused can be cross-examined on that prior statement. As I understand the appellant’s submission, it is directed at the refusal of the trial judge to admit the post-arrest statements through cross-examination during the case for the Crown. Consequently, I need not explore the circumstances in which a trial judge could allow an accused to give evidence of his exculpatory statements made upon arrest during his testimony.

The trial judge’s instructions with respect to the evidence of the defence witnesses Gibbs and Sweeney.

[184] The witnesses, Gibbs and Sweeney were called by Pennett. They gave evidence of statements made by Suzack which supported Pennett’s position that Suzack fired the fatal shots. Both witnesses were friends of Pennett and had extensive criminal records involving crimes of dishonesty. Sweeney had lied in court on a previous occasion.

[185] As with the propensity evidence adduced by Pennett, the trial judge had to treat the evidence of Gibbs and Sweeney in a way that balanced the conflicting interests of Suzack and Pennett. He reviewed their evidence and the related evidence at some length. This review served the interests of Pennett and not Suzack. The trial judge also said:

This witness [Sweeney] and Gibbs have extensive records. This witness, the last witness Sweeney, record is particularly extensive, but both are records for offences of dishonesty as counsel brought out in cross-examination. When you deal with the witness who has an extensive record for dishonesty you should scrutinize his evidence with care before you accept it. You are entitled to accept his evidence but you should scrutinize it.

[186] It is submitted that this instruction amounted to a “Vetrovec” warning and that several cases from this court make it clear that such a warning cannot be given in respect of a defence witness: R. v. Vetrovec (1982), 1982 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.); R. v. Tzimopoulos (1986), 1986 152 (ON CA), 29 C.C.C. (3d) 304 at 340 (Ont. C.A.); R. v. Hoilett (1991), 1991 13892 (ON CA), 4 C.R. (4th) 372 at 374 (Ont. C.A.). None of these cases involved a joint trial of accused who were advancing “cut-throat” defences.

[187] The Vetrovec warning has three components:

• the evidence of certain witnesses is identified as requiring special scrutiny;
• the jury is cautioned that although it is entitled to act on the unconfirmed evidence of such a witness, it is dangerous to do so; and
• the jury is cautioned to look for other independent evidence which tends to confirm material parts of the evidence of the witness with respect to whom the warning has been given.

[188] Trainor J. did introduce the first component of the “Vetrovec” warning into his instruction on the evidence of Gibbs and Sweeney when he told the jury to “scrutinize their evidence with care.” Trainor J. said nothing which even approached the other two components of the ”Vetrovec” warning. He did not suggest that it was dangerous to act on the evidence of these witnesses and he did not suggest that the jury should look for confirmation of their evidence before acting on it. These factors distinguish Trainor J.’s instruction from that considered by this court in Tzimopoulos, supra.

[189] I would not characterize the impugned instruction as a “Vetrovec” warning but rather a caution that the credibility of these two witnesses had to be carefully measured given their long history of dishonesty. A trial judge is entitled to alert the jury to the factors which the trial judge thinks are important in assessing the credibility of various witnesses. There was ample reason to be concerned about the honesty of these two witnesses. I am sure the jury would have proceeded cautiously when considering the evidence of these two witnesses without any instruction from Trainor J. No doubt he felt compelled to give the instruction because of Suzack’s position in the trial. The evidence of Gibbs and Sweeney was potentially very harmful to Suzack and it was his position that they were thoroughly unworthy of belief. Trainor J. had to put Suzack’s position to the jury just as he had to be sure that the jury understood the thrust of the evidence and its significance to Pennett’s position. As at other points in the charge, Trainor J. had to balance two conflicting interests. I see nothing wrong with the balance he struck.

The trial judge’s summary of the evidence.

[190] Pennett’s final submission is a broad one. He submits that the charge to the jury read as a whole was so unbalanced that it “negated the appearance of judicial impartiality.” The merit of this argument is best tested by a global evaluation of the charge. Having read the charge several times I do not get the impression that Trainor J. was attempting to put his thumb on the scales of justice during his instructions to the jury. The review of the evidence in his charge and recharge was thorough and free of any significant factual error. He related the evidence to the issues and to the positions of the parties on those issues. To the extent that his review of the evidence worked against Pennett, that was the product of the nature of the evidence and not the way he reviewed it.

[191] As part of his broad submission that the trial judge’s charge was skewed in favour of the Crown, counsel for Pennett refers to one extract from the charge in which he says the trial judge “censured counsel for Pennett.” This submission is based on some ten lines in instructions which spanned well over 200 pages. In the passage to which counsel takes exception, Trainor J. was instructing the jury on the use that could be made of prior inconsistent statements. He told the jury that in his opinion counsel had not established that an alleged prior inconsistent statement given by one of the witnesses was inconsistent with that witness’s testimony at trial. Trainor J. made it clear to the jury that it was up to them to decide whether there was any inconsistency. Surely, trial judges can take issue with a position advanced by counsel without being said to have “censured counsel so as to impair the appearance of impartiality.”

[192] There is no merit to this ground of appeal.

VI

[193] I would dismiss both appeals.

Released: January 19, 2000

[^1]: In R. v. Rose, supra, the court also upheld, without separate consideration, the constitutionality of s. 651(4) of the Criminal Code. That section requires that all accused address the jury before the prosecution if any one of the accused calls a defence. The section does not provide for the order in which counsel for the accused must make their addresses. In Ontario, the practice is that counsel proceed in the order in which the accused are named in the indictment unless they agree otherwise.

[^2]: Paul Gibbs testified during Pennett’s defence. His evidence was consistent with the suggestions put to Suzack by counsel for Pennett.

[^3]: I am assuming Suzack would have testified had he been tried alone. He had no defence absent his own evidence.

[^4]: The defence sought to adduce two further statements made by Pennett after he was advised of his Charter rights. In my view, neither had any possible probative value and were inadmissible for that reason alone. They were also unconnected to the pre arrest statement.