DATE: 20011220

DOCKET: C26695

COURT OF APPEAL FOR ONTARIO

CATZMAN, DOHERTY and AUSTIN JJ.A.

B E T W E E N :

Russell Silverstein and

HER MAJESTY THE QUEEN

Leslie Maunder

for the appellant

Respondent

• and -

Brian McNeely

for the respondent

TIEN DUONG

Appellant

Heard: November 7, 2001

On appeal from the conviction entered by Justice Humphrey dated January 29, 1997.

DOHERTY J.A.:

1. I

2. [1] The appellant was convicted of being an accessory after the fact to two murders committed by Chinh Lam. At the appellant’s trial, the Crown was required to prove that Lam had committed the murders. It chose to prove that Lam had committed the murders by tendering a certified copy of the indictment recording Lam’s convictions on the two murder charges. At the time of the appellant’s trial, Lam’s convictions for murder were under appeal to this court.

3. [2] The Crown relied on statements made by the appellant to establish the other essential elements of the charge of being an accessory after the fact to murder.

4. [3] The appellant did not testify. He argued, relying on R. v. Hamel (1993), 1993 CanLII 3708 (QC CA), 20 C.R. (4^th) 68 (Que. C.A.), that Lam’s convictions were inadmissible at his trial to prove that Lam had committed the murders, and that the Crown had failed to prove that he knew that Lam had committed the murders when he provided assistance to Lam. The trial judge rejected both of these arguments and convicted the appellant. The appellant appealed to this court.

5. [4] On appeal, the court decided both issues against the appellant. The court concluded that the trial judge had properly held that the convictions were admissible,[^1] and that the doctrine of wilful blindness was applicable to a charge of being an accessory after the fact to murder. The reasons of this court are reported: see R. v. Duong (1998), 1998 CanLII 7124 (ON CA), 124 C.C.C. (3d) 392.

6. [5] When the appellant’s appeal was heard, Lam’s appeal from his murder convictions was still outstanding. The court concluded its reasons rejecting the grounds of appeal advanced by the appellant with the following at p. 409:

7. The Crown, knowing that Lam had appealed his convictions, chose to rely heavily on Lam’s conviction as evidence that he committed the murders. The appellant should not be denied the opportunity to rely on a subsequent reversal of those convictions because his appeal was ready and heard before Lam’s. Consequently, I would not dismiss the appeal outright at this time. I would adjourn the disposition of the appeal to await the outcome of Lam’s appeal. If that appeal is dismissed, this appeal should be dismissed. If Lam’s appeal is allowed, the appellant should be afforded the opportunity to make submissions as to the effect of the reversal of Lam’s murder convictions on his conviction.

8. [6] In May 2000, this court allowed Lam’s appeal, quashed the murder convictions and ordered a new trial. On December 13, 2000, Lam entered guilty pleas on two charges of manslaughter. The court is now required to decide whether the quashing of Lam’s convictions and his subsequent pleas to manslaughter should affect the appellant’s conviction on the charge of being an accessory after the fact to murder.

9. II

10. [7] The Crown submits that the quashing of Lam’s convictions and his subsequent pleas to manslaughter are irrelevant to the appellant’s conviction as an accessory after the fact to murders committed by Lam. Counsel advanced a number of submissions to support this contention, all of which ignore the special rule of evidence applicable to the trial of an accessory after the fact. It was that rule that allowed the Crown to lead evidence of Lam’s convictions at the appellant’s trial in the first place.

11. [8] In this court’s reasons affirming the admissibility of Lam’s convictions as evidence that he committed the murders, I said at pp. 406-407:

12. …Vinette [R. v. Vinette, 1974 CanLII 165 (SCC), [1975] 2 S.C.R. 222] accepts that a principal’s conviction is admissible on the accessory’s trial as evidence that the principal committed the crime. This conclusion flows from the court’s holding that the “particular rules” applicable to the trial of an alleged accessory after the fact permit the admissibility of any evidence that would be admissible against the principal to prove the commission of the crime. As a previous judicial determination that the principal committed the crime would be admissible against the principal, it is equally admissible against the accessory as evidence that the principal committed the crime. [Emphasis added.]

13. [9] If Lam’s convictions had been tendered in a trial against Lam to prove an essential element of a crime alleged against him, and if by the time his appeal from that proceeding was heard, those convictions had been quashed, there can be no doubt that the orders quashing the convictions would be receivable as fresh evidence on Lam’s appeal. By virtue of the “particular rules” applicable to the trial of alleged accessories after the fact, the orders quashing the convictions should also be received as fresh evidence on the appeal brought by the accessory after the fact.

14. [10] The rationale which permitted the Crown to lead evidence of Lam’s convictions at the appellant’s trial as evidence that Lam had committed the murders applies with equal force to the appellant’s claim that evidence that those convictions were quashed should be admitted on the appellant’s appeal as fresh evidence.

15. [11] Crown counsel relied on R. v. Hewson (1978), 1978 CanLII 45 (SCC), 42 C.C.C. (2d) 507 (S.C.C.) to support his contention that the evidentiary effect of Lam’s convictions fell to be determined once and for all as at the date of the appellant’s trial and that the subsequent quashing of those convictions was irrelevant. Hewson, supra, does not assist the Crown. First, Hewson did not involve a charge of being an accessory after the fact. It cannot be taken as addressing in any way the “particular rules” applicable to such prosecutions, in so far as those rules relate to resort to the conviction of the principal to prove, as against the alleged accessory, that the principal committed the crime.

16. [12] Second, Hewson, supra, does not stand for the broad proposition that an order quashing a conviction relied on by the Crown at trial is never admissible as fresh evidence on an appeal. Ritchie J., for the majority, held at p. 516 that the mere fact that a conviction was under appeal did not render evidence of that conviction inadmissible at a trial held while the appeal was outstanding. Hewson, supra, was relied on for exactly that proposition in the earlier reasons released by this court in this appeal: R. v. Duong, supra, at pp. 408-409. The issue at this stage is not the admissibility of Lam’s convictions at the appellant’s trial, but rather the admissibility on appeal of an order quashing the convictions made subsequent to the appellant’s trial.

17. [13] In Hewson, Ritchie J. at pp. 515-16 also held that the appellant was not prejudiced by the evidence led at trial concerning the conviction that was quashed subsequent to the trial. That finding was based on the specific circumstances of the case. The appellant was clearly prejudiced by the evidence of Lam’s convictions. The Crown was required to prove that Lam had committed the murders in order to convict the appellant of being an accessory after the fact to the murders. It relied almost exclusively on the evidence of Lam’s convictions for that proof.

18. [14] The relevance of the order quashing the convictions and hence its admissibility as fresh evidence on appeal, is also justified on a different analysis. In the earlier reasons delivered in this matter, I observed at p. 408:

19. I also think that Vinette is supportable on a principled approach to evidence which could be characterized as hearsay. A previous judicial determination of guilt beyond a reasonable doubt, whether based on a plea, or following a full trial is, in my view, sufficiently reliable to warrant its admissibility in a subsequent proceeding as some evidence of the facts essential to the finding of guilt. There is also a practical necessity to receive such evidence since a full reprise of the principal’s trial in a proceeding to which the principal was not a party would pose immense practical difficulties… [Emphasis added.]

20. [15] If the admissibility of Lam’s convictions is justified under the principled approach to hearsay evidence, the subsequent quashing of those convictions qualifies as admissible fresh evidence since it destroys the reliability inherent in those convictions.

21. [16] I agree with counsel for the appellant’s contention that the order quashing Lam’s convictions made subsequent to the appellant’s trial, but while his appeal was still outstanding, meets the criteria for the admission of fresh evidence on appeal and should be received.

22. III

23. [17] I do not agree with counsel for the appellant’s further contention that only the order quashing the convictions should be received. Section 683(1) of the Criminal Code, which provides for the admissibility of fresh evidence on appeal, makes the “interests of justice” the ultimate yardstick by which admissibility must be measured. If the interests of justice require that this court receive evidence of events post-dating the appellant’s trial that impact on Lam’s status as a convicted murderer, those interests can only be served by admitting evidence of all of the events which impact on that status. The order quashing the convictions and Lam’s subsequent convictions on his guilty pleas for manslaughter must be taken together. The interests of justice require that this court admit as fresh evidence both the order quashing Lam’s convictions for murder and Lam’s subsequent convictions for manslaughter.

24. IV

25. [18] Having concluded that the order quashing the convictions and the convictions for manslaughter should both be admitted as fresh evidence, I must now determine what order should be made on this appeal.

26. [19] In law, the outcome of the principal’s trial does not automatically determine the culpability of a person charged with being an accessory after the fact to the crime allegedly committed by the principal. The principal may be convicted and the alleged accessory acquitted. The principal may also be acquitted or convicted of an included offence and the alleged accessory may still be convicted of being an accessory after the fact to the full offence: R. v. S.(F.J.) (1997), 1997 CanLII 22739 (NS CA), 115 C.C.C. (3d) 450 (N.S.C.A.), aff’d., (1998), 1998 CanLII 842 (SCC), 121 C.C.C. (3d) 223 (S.C.C.); Remillard v. The King (1921), 1921 CanLII 584 (SCC), 35 C.C.C. 227 (S.C.C.).

27. [20] The abstract propositions of law cited above do not, however, determine the appropriate order to be made in this case. Consideration must be given to the manner in which the trial of the appellant was conducted by both the Crown and the defence. The Crown, knowing that Lam’s convictions were under appeal, made a tactical decision to rely exclusively on his convictions to prove that he had committed murder. I do not think that the Crown should be given an opportunity at a new trial to deviate from that position and attempt to prove that Lam, despite his convictions for manslaughter, in fact committed murder. Consistency and fairness demand that the Crown be permitted to rely only on Lam’s convictions to prove the offence to which it claims the appellant was an accessory after the fact. Lam stands convicted of manslaughter and not murder.

28. [21] The appellant also made tactical decisions at the trial. He elected to challenge the admissibility of Lam’s convictions for murder as evidence that Lam committed those murders on a narrow legal ground. Apart from that legal objection, he did not join issue on Lam’s culpability for the murders and did not attempt to adduce any evidence to challenge the allegation that Lam had committed the murders. He now seeks a new trial so that he can do exactly what he chose not to do at the first trial.

29. [22] Appellant’s counsel contends that Lam’s subsequent convictions for manslaughter put the appellant in a better position to contest Lam’s culpability for even the offence of manslaughter. Counsel suggests that Lam may now be “a compelling witness for the defence” and that the appellant “may take a different view of testifying”.

30. [23] Nothing was placed before the court that would raise either of these submissions beyond the level of pure speculation. I see no reason to assume that were Lam to testify he would contradict his pleas to the charges of manslaughter. Nor do I understand how the fact that Lam was convicted of manslaughter rather than murder would alter the appellant’s decision not to testify. At trial, the appellant was faced with evidence that he had admitted knowing that Lam was involved in a killing and that he knew he would be in trouble for hiding Lam. He chose not to testify. The fact that Lam now stands convicted of manslaughter rather than murder does not change the nature of the decision the appellant had to make at the end of the Crown’s case. Furthermore, the appellant has not filed an affidavit setting out what evidence he could offer in his own defence.

31. [24] In the circumstances, neither the Crown nor the appellant should be allowed to resile from the tactical decisions made at the trial. The Crown chose to rely on Lam’s convictions as the only evidence of the offence committed by Lam. The defence chose not to challenge the factual assertions underlying those convictions. Lam now stands convicted of manslaughter. Had the trial proceeded as it did with the exception that the convictions tendered by the Crown were for manslaughter rather than murder, the result would inevitably have been the conviction of the appellant on the included charge of being an accessory after the fact to manslaughter.[^2]

32. [25] This court may, pursuant to s. 686(1)(b)(i) of the Criminal Code, dismiss the appeal and substitute a conviction for the included offence of being an accessory after the fact to manslaughter. I think that is the appropriate order.

33. [26] The sentence imposed on the appellant upon his conviction as an accessory after the fact to murder has been served. A sentence of time served on the conviction on the included offence of being an accessory after the fact to manslaughter is, therefore, the appropriate disposition.

34. V

35. [27] For the reasons set out above, I would dismiss the appeal, set aside the conviction on the charge of being an accessory after the fact to murder, enter a conviction on the included offence of being an accessory after the fact to manslaughter and impose a sentence of time served.

RELEASED: “MAC”

“Dec 20 2001”

“Doherty J.A.”

“I agree: M.A. Catzman J.A.”

“I agree: Austin J.A.”

[^1]: The appellant’s trial took place before the enactment of s. 657.2(2) which makes the convictions of the principal admissible against an accessory after the fact.

[^2]: Counsel for the Crown and the appellant accept that being an accessory after the fact to manslaughter is an included offence in the charge of being an accessory after the fact to murder: see R. v. Webber (1995), 1995 CanLII 333 (BC CA), 102 C.C.C. (3d) 248 (B.C.C.A.).