DATE: 20020619 DOCKET: C33625

COURT OF APPEAL FOR ONTARIO

DOHERTY, CHARRON and ARMSTRONG JJ.A.

BETWEEN:

Frank Addario

HER MAJESTY THE QUEEN

for the appellant

Respondent

• and -

Alex Alvaro

for the respondent

JUNIOR JOHNSON

Appellant

Heard: April 12, 2002

On appeal from the conviction entered by Justice H.J. Keenan, sitting with a jury, on December 17, 1998.

DOHERTY J.A.:

I

[1] The appellant was convicted of first degree murder. He appeals his conviction on four grounds. I would dismiss the appeal.

II

Overview

[2] The deceased, Christie Christie (“Ms. Christie”), was sixteen years old. She lived with her mother and eight month old brother. On January 29, 1996, Ms. Christie was in their apartment with her baby brother and her best friend, Roslyn Ghent (“Ms. Ghent”), aged nineteen, when the appellant and Khalil Francis (“Francis”) forced their way into the apartment. The appellant was armed with a loaded sawed off shotgun and repeatedly threatened Ms. Christie and Ms. Ghent. Immediately before leaving the apartment the appellant fired a single shotgun blast from close range into Ms. Christie’s midsection. She died on the operating table.

[3] The appellant and the deceased were acquainted. There was no animosity between them. Francis and the deceased were friends. He had been in her apartment before.

[4] The Crown advanced three arguments in support of its contention that the appellant was guilty of first degree murder. First, the Crown maintained that the appellant went to the Christie apartment to kill Ms. Christie. Second, the Crown submitted that if the appellant went to the Christie apartment with the sole intention of robbing the occupants, that he planned and deliberated upon the murder of Ms. Christie while the robbery was in progress. Third, the Crown argued that even if the murder was not planned and deliberate, the appellant murdered Ms. Christie in the course of forcibly confining her and was guilty of first degree murder pursuant to s. 231(5)(e) of the Criminal Code, R.S.C. 1985, c. C-46, as amended.

[5] The appellant acknowledged culpability in the death of Ms. Christie. It was the appellant’s position that immediately before leaving the apartment the shotgun had gone off accidentally while he was pointing it at Ms. Christie. He contended that he was guilty of manslaughter.

[6] The appellant did not testify. The evidence to support the defence position that the gun discharged accidentally came from the testimony of Francis, who was called as a defence witness. Prior to trial, Francis pled guilty to manslaughter and received a four and a half year sentence. He testified as a Crown witness at the appellant’s preliminary inquiry and gave a different account of the crucial events.

III

[7] The appellant contends that the trial judge erred:

1.) by failing to instruct the jury that there was no evidence to support the Crown’s theory that he planned and deliberated with respect to the murder before entering the Christie apartment;

2.) by failing to adequately respond to the jury’s question concerning the appellant’s potential liability for first degree murder under s. 231(5)(e) of the Criminal Code (murder in the course of a forcible confinement);

3.) by permitting Crown counsel to put improper questions to its witness, Daniel D.F., in re-examination and by failing to instruct the jury that the Crown’s questions did not constitute evidence; and

4.) by failing to instruct the jury that the preliminary inquiry testimony of Francis, on which he was cross-examined by Crown counsel, could be used only in assessing Francis’ credibility.

IV

The Evidence

[8] A few hours before the robbery, a group of young men, including the appellant, gathered in the hallway of a nearby apartment and discussed the possibility of robbing the Christie apartment. It was believed that Mrs. Christie (the deceased’s mother) sold drugs out of the apartment and that there would be drugs, jewellery and cash in the apartment. The group included D.F. aged twelve; J.B., aged fifteen; Francis, aged seventeen; Feldon Bennett (“Bennett”), aged eighteen; James Scott, a developmentally disabled adult; and the appellant who was seventeen years old.

[9] During the discussions, the appellant and Francis asked D.F., who had purchased drugs at the Christie apartment on previous occasions, to go to the door of the apartment holding a $20 bill and pretending to want to purchase drugs. When the door was opened for D.F., the appellant and Francis would force their way into the apartment.

[10] During these discussions, Bennett gave the appellant a sawed-off shotgun. The appellant loaded the gun with a red shotgun shell and placed the gun up his sleeve. According to J.B., D.F. and Francis, there was no discussion about shooting anybody during the robbery. There were, however, discussions about using the gun to assault and threaten the occupants of the apartment and to hold them “hostage” while Francis searched for money, drugs and jewellery.

[11] D.F. went to the Christie apartment shortly after 6:30 p.m. He knocked. The deceased, armed with a knife, went to the door and looked through the peephole. She recognized D.F., made a derisive comment, and opened the door. Within seconds, the appellant and Francis rushed into the apartment. Both were masked and the appellant was armed with the loaded sawed off shotgun. He pointed it directly at the deceased. D.F. fled the apartment.

[12] The appellant and Francis were in the apartment for about fifteen to twenty minutes. Ms. Ghent could not identify either robber, whom she described by their respective heights. By trial, it was acknowledged that the appellant was the “taller robber” and that Francis was the “shorter robber”. Ms. Ghent did not know the appellant but was acquainted with Francis.

[13] According to Ms. Ghent, as soon as the appellant was in the door, he began to threaten her and Ms. Christie. He put the sawed off shotgun against Ms. Christie’s head and said: “Don’t get smart with me, I’ll fucking kill you”.

[14] While Francis searched throughout the apartment looking for money, jewellery or drugs, the appellant held Ms. Christie and Ms. Ghent at gunpoint in various places in the apartment. He repeatedly demanded to know where the money and drugs were hidden and threatened to kill both Ms. Christie and Ms. Ghent. At one point during the robbery, Ms. Ghent saw a red shell pop out of the shotgun. The appellant quickly put it back into the gun. Later when Francis appeared ready to leave, the appellant indicated he was not ready to go. He forced Ms. Christie and Ms. Ghent into Ms. Christie’s bedroom, pointed the gun at them and said: “Maybe I should kill you both in here”.

[15] Eventually, the appellant forced Ms. Ghent and Ms. Christie into the kitchen. He demanded to know where the money and drugs were kept. Ms. Christie went to the cupboard above the sink, took out a few dollars and gave it to him. She also gave him a gold band.

[16] The appellant yelled at Francis that it was time to leave. Ms. Ghent saw Francis leave the apartment and heard the door close. After the door closed, the appellant turned to Ms. Christie, levelled the shotgun at her and said: “Now I’m going to shoot you”. He shot her and ran out of the apartment.

[17] Ms. Ghent rejected the defence suggestion that the appellant qualified the statement he made to Ms. Christie just before he shot her in any way. Ms. Ghent also rejected the defence suggestion that Francis bumped into the appellant immediately before the shot was fired.

[18] J.B. and D.F. were waiting in the stairwell for Francis and the appellant after the robbery. Both testified that Francis left the apartment first. All four ran down the stairs and exited the apartment building. The appellant said words to the effect that he “blew her head off for $10 and five bucks of weed”. He seemed upset and warned the others that they were not to say anything to anybody.

[19] The shotgun was never recovered. Sam Barbetta, a firearms expert, testified that based on an examination of the recovered pellets, the shotgun used was a twelve gauge shotgun with either a single or double barrel and an external hammer. He testified that to fire a gun of that kind, the shooter had to first manually cock the gun by pulling the hammer back. Once the hammer was pulled back, the gun could be fired by pulling the trigger. The gun could not be fired unless the hammer was back and the trigger was pulled. Since the shotgun was not recovered, Mr. Barbetta could not comment on the possibility that the gun was in such poor condition that it could have discharged accidentally.

[20] Francis testified for the defence at trial. He had known the appellant for some time. According to Francis, he and the appellant devised the robbery plan and recruited D.F. to help them gain entry into the apartment. Francis testified that during the robbery the appellant was armed with a shotgun that the appellant obtained from Bennett. Francis indicated that neither he nor the appellant had any idea who would be in the apartment when they went there to commit the robbery. He said that during the robbery he searched through the various rooms of the apartment while the appellant held the gun on Ms. Christie and Ms. Ghent.

[21] Francis’ description of the events immediately prior to exiting the apartment was crucial to the defence contention that the gun discharged accidentally. Francis testified that after he searched under the couch he ran towards the kitchen and said to the appellant “let’s go”. He was in a panic. The appellant was standing in the entrance to the kitchen pointing the sawed off shotgun at Ms. Christie who was standing in the dining room area. Francis said he grabbed the appellant by the shoulder and pulled him toward the apartment door. The second time he was asked to describe this event during his examination-in-chief he added that he pulled the appellant “off balance”. Francis explained that when he grabbed the appellant by the shoulder, he waited momentarily for the appellant to come with him before leaving the apartment. The gun went off just as he was leaving the apartment. He estimated that the shot was fired “[n]ot even two seconds” after he pulled the appellant by the shoulder.

[22] Francis testified that he did not hear the appellant say anything to the deceased immediately before the gun went off. He also said that he did not see anyone other than the appellant and the deceased immediately before he left the apartment. On her evidence, Ms. Ghent was standing beside the deceased.

[23] In cross-examination, Francis acknowledged that when testifying as a Crown witness at the appellant’s preliminary inquiry he did not say that he grabbed the appellant as he fled the apartment. He also conceded that no reference was made to that fact in his sentencing proceedings. Francis said he first recalled grabbing the appellant and pulling him off balance almost two years after the homicide and a few months before the appellant’s trial. Francis was lying in bed one night when he suddenly remembered grabbing the appellant. He did not tell anyone about this recollection until he testified.

[24] The Crown cross-examined Francis on the evidence he gave at the preliminary inquiry. In that evidence, he described his exit from the apartment, placing himself about four or five feet from the appellant as he made his way through the kitchen towards the door of the apartment. At the preliminary inquiry, defence counsel specifically suggested to him that he grabbed the appellant by the arm just before the shot went off. Francis responded “I could have”.

[25] Francis also testified at the preliminary inquiry that he was outside of the apartment and part way down the hall when he heard the shotgun blast. Francis said that the appellant came out of the apartment about five seconds after him. He testified at trial that his previous testimony was inaccurate and that he now recalled that he was in the doorway when the gun went off and that it went off less than two seconds after he grabbed the appellant.

[26] Francis was cross-examined on several other parts of the evidence he gave at the preliminary inquiry. He repeatedly said that his evidence at the preliminary inquiry was inaccurate. He denied deliberately lying at the preliminary inquiry, but maintained that his recollection improved after he was sentenced and had an opportunity to discuss his situation with a psychiatrist.

[27] Francis was a friend of the appellant’s. He and the appellant shared a jail cell for some time after they were both arrested. However, according to Francis, there was never any discussion about the homicide, nor had the appellant ever suggested to him that the shooting was accidental or that the gun had gone off after he lost his balance.

V

The Grounds of Appeal

[28] The appellant submits that the trial judge should have instructed the jury that there was no evidence to support the Crown’s primary theory that the appellant decided to murder Ms. Christie before going to her apartment and that he went there primarily for that purpose.

[29] At trial, the defence moved for a directed verdict on the charge of first degree murder. In dismissing that motion, the trial judge said:

There are, however, two pieces of evidence on which the jury may determine that there was a plan which was formed at some time prior to the shooting and that there was a time in which to deliberate and to consider the consequences of the act. [Emphasis added.]

[30] The two pieces of evidence referred to by the trial judge were statements that Ms. Ghent attributed to the appellant during the robbery. According to her, the appellant told her and Ms. Christie, “Maybe I should kill you both in here”, and immediately before shooting Ms. Christie said, “Now I’m going to shoot you”.

[31] Counsel for the appellant concedes that these statements provided some evidence of planning and deliberation, but contends that they are consistent only with planning and deliberation after the robbery was in progress and that the jury should have been so instructed. I cannot understand the logic of this temporal limitation. I agree with the trial judge that the statements suggest planning and deliberation prior to the shooting. That planning and deliberation may have occurred while the robbery was being planned, but before it started, or after the robbery was in progress.

[32] While I do not agree that the evidence of planning and deliberation necessarily forecloses planning and deliberation prior to the commencement of the robbery, I am satisfied that there was precious little, if any, basis in the evidence for the Crown’s theory that the appellant went to the apartment to murder Ms. Christie and not to commit robbery. Indeed, the evidence indicates that the appellant did not know who would be in the apartment at the time of the robbery.

[33] The trial judge was not impressed with the theory that the appellant went to the apartment to murder Ms. Christie. After accurately defining planning and deliberation and referring to the two statements allegedly made by the appellant as the only evidence of planning and deliberation, the trial judge addressed the theory of the Crown:

With respect to the evidence, it is the position of the Crown counsel that you should find that Johnson pretended to participate in a robbery but that he went to the apartment really for the sole purpose of killing Christie Christie and that, during the course of the process, he was psyching himself up and getting up the nerve to carry out his previously arranged plan to kill her. Well, members of the jury, I suggest to you that this theory is inconsistent with Roslyn Ghent’s testimony about the intent to rob, the planned robbery and the attempt at robbery. She testified at great length about Junior Johnson going back and forth through the apartment saying, “Where’s the money, where’s the weed?” and that he asked about the gold bracelet. He wanted to know where the gold bracelet was and had her search through the crockpot and got [her] to get up and get the crockpot down so he could search through the crockpot. [Emphasis added.]

[34] In this passage, the trial judge forcefully told the jury that the Crown’s theory that the appellant went to the apartment to murder Ms. Christie was at odds with the evidence of its main witness. That instruction, combined with the clear direction that the only evidence of planning and deliberation came from the two statements attributed to the appellant during the robbery, effectively equipped the jury to critically assess the Crown’s contention that the murder of the deceased was the focus of the appellant’s plan from the start. There is no reasonable possibility that the jury convicted the appellant of first degree murder on the basis of a Crown theory discredited by the trial judge and virtually unsupported by the evidence.

[35] If I am wrong and the trial judge’s instructions do reveal error, I would apply s. 686(1)(b)(iii) of the Criminal Code. Any error in the instruction on first degree murder could not have tainted the jury’s finding that the appellant murdered Ms. Christie. Based on Ms. Ghent’s evidence and the evidence of Francis, the killing occurred while Ms. Christie was being forcibly confined. For reasons I will discuss below, a properly instructed jury would inevitably have concluded that the murder occurred in the course of a forcible confinement and therefore constituted first degree murder under s. 231(5)(e) of the Criminal Code. Any error in law in the instruction on planning and deliberation was of no consequence.

[36] The second ground of appeal, relating to the appellant’s liability for first degree murder, arises out of the trial judge’s response to a question by the jury concerning liability for first degree murder under s. 231(5)(e) of the Criminal Code. That section provides that murder is first degree murder if death is caused by a person while committing or attempting to commit forcible confinement or kidnapping.

[37] The trial judge explained to the jury the meaning of confinement. He then told the jury that they could only convict the appellant of first degree murder under s. 231(5)(e) if the domination and violence or threats of violence used by him to effect the confinement were “more than … one would reasonably expect would occur during the commission of an armed robbery”.

[38] During deliberations, the jury asked for further instructions on the definition of forcible confinement and for instructions on how to determine whether the force used was more than one would reasonably expect to be used in the course of an armed robbery. The trial judge repeated his prior instructions and added:

I cannot tell you any better than you can tell yourselves what is the level of domination and violence or threats of violence that one would reasonably expect would occur during the commission of an armed robbery. That is for you to determine based upon the evidence that you have in this case.

[39] The trial judge’s instruction, that liability for first degree murder under s. 231(5)(e) required proof of resort to violence that was “more than … one would reasonably expect would occur during the commission of an armed robbery”, is consistent with the interpretation of s. 231(5)(e) favoured in some provinces (R. v. Strong (1990), 1990 ABCA 327, 60 C.C.C. (3d) 516 at 527 (Alta. C.A.); R. v. Kingsley (1995), 1995 5061 (QC CA), 105 C.C.C. (3d) 85 at 88 (Que. C.A.)), but was unduly favourable to the appellant on this court’s interpretation of s. 231(5)(e): R. v. Dollan and Newstead (1982), 1982 2006 (ON CA), 65 C.C.C. (2d) 240 at 245 (Ont. C.A.), leave to appeal to S.C.C. refused (1982), 42 N.R. 351; R. v. Kimberley and Clancey (2001), 2001 24120 (ON CA), 157 C.C.C. (3d) 129 at 158-64 (Ont. C.A.), application for leave to appeal to S.C.C. filed April 29, 2002, [2002] S.C.C.A. No. 29. The Ontario authorities indicate that liability for first degree murder under s. 231(5)(e) is established where, in the course of a single transaction, an accused commits the crime of unlawful confinement and then chooses to exploit his or her position of dominance over the victim, resulting from the confinement, to murder the victim.

[40] Under the Ontario authorities there is no need to decide whether the force used went beyond that inherent in a robbery in determining liability under s. 231(5)(e). Any inadequacy in the explanation of that concept could not have prejudiced the appellant. Counsel for the appellant acknowledges that on those authorities, the trial judge’s response to the jury’s question could not have occasioned any substantial wrong or miscarriage of justice. He advances this ground to preserve his ability to challenge the correctness of this court’s interpretation of s. 231(5)(e) in the Supreme Court.

[41] For completeness, I would add that if s. 231(5)(e) does require proof of force beyond that which one would reasonably expect in the commission of a robbery, I see nothing wrong with the trial judge’s response to the jury’s question. The jury would not have been assisted by a definition of robbery or further explanation of confinement as submitted by the appellant. If the trial judge’s answer did not assist the jury, that reveals a problem with the approach to s. 231(5)(e) adopted in cases like R. v. Strong, supra, and not an inadequacy in the trial judge’s response to the jury’s question.

[42] The third ground of appeal arises out of the Crown’s re-examination of the witness, D.F. D.F. was an accomplice in the robbery and was serving a three year sentence when he testified. He was a difficult Crown witness. During his examination-in-chief, the trial judge allowed the Crown to cross-examine him under s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5, on parts of his written statements and his prior testimony which were inconsistent with his trial testimony.

[43] In cross-examination by defence counsel at trial, D.F. agreed with counsel’s suggestion that nothing said prior to the robbery led him to believe that the gun would be used to shoot or harm anyone in the apartment.

[44] After D.F.’s cross-examination was completed, Crown counsel in re-examination sought to put two oral statements to D.F. which the Crown alleged were inconsistent with his testimony on cross-examination. One was a statement D.F. allegedly made to J.B., while waiting in the hallway during the robbery. According to the Crown, D.F. told J.B. that he wanted to move closer to the apartment so he could hear the shotgun go off. The second statement D.F. allegedly made was to a person named Campbell shortly after the robbery. The Crown indicated that according to Campbell’s testimony at D.F.’s sentencing proceeding, D.F. told Campbell that the robbers planned to shoot the person in the apartment so that that person would not be able to identify the robbers.

[45] If either or both statements were adopted by D.F. as true, they provided evidence that something was said prior to the robbery which led D.F. to believe that the gun would be used during the robbery. If the appellant was present when those prior statements were made, they would constitute evidence against the appellant. If D.F. did not adopt either of the statements as true, they could, if the jury believed that they were made, undermine D.F.’s credibility by leading the jury to conclude that he lied when he said he had no reason to believe that a gun would be used during the robbery.

[46] During his submissions, Crown counsel told the trial judge that he anticipated that D.F. would deny making the statement to J.B.. Crown counsel did not comment on the alleged statement to Campbell beyond indicating that Campbell testified that D.F. made the statement. Defence counsel opposed Crown counsel’s request to put the prior statements to D.F., but only on the basis that such questioning did not constitute proper re-examination.

[47] The trial judge ruled that the proposed questions were proper re-examination. Crown counsel proceeded to re-examine D.F. at length on parts of other statements he made. No objection was taken to these questions. Counsel completed his re-examination by putting the two statements to D.F.. D.F. denied making the statements. The Crown did not attempt to prove the statements and there was no further reference to them in the trial.

[48] I agree with Mr. Addario, counsel for the appellant, that the propriety of the impugned questions did not turn exclusively on the rule governing the scope of re-examination. Crown counsel could only put the alleged prior oral statements to D.F. if the subject matter of the statements was proper re-examination and if Crown counsel could establish a basis for cross-examining his own witness: R. v. Moore (1984), 1984 3542 (ON CA), 15 C.C.C. (3d) 541 at 568 (Ont. C.A.). As the alleged statements were oral, the Crown could only cross-examine on them if D.F. was found to be an adverse witness within the meaning of s. 9(1) of the Canada Evidence Act: R. v. Cassibo (1982), 1982 1953 (ON CA), 70 C.C.C. (2d) 498 (Ont. C.A.). Adversity is determined by the trial judge after a voir dire in which the Crown may lead evidence of prior inconsistent statements.

[49] The appellant did not argue that the subject matter of the impugned questions was beyond the limits of re-examination. He does argue, however, that had the proper procedure for determining adversity been followed, the trial judge would not have permitted Crown counsel to put the questions to the witness without first proving that the statements were made. Counsel argues that it is far from obvious, from this record, that the Crown could prove that the statements were made. Failing such proof, the jury would never have heard of the alleged statements D.F. made to J.B. and Campbell. Counsel submits that once the jury heard the Crown suggest that D.F. made the statements, the appellant was significantly prejudiced even though D.F. denied making the statements.

[50] Crown counsel submits that the trial judge was not asked to conduct a voir dire under s. 9(1) because, in light of the extensive cross-examination of D.F. on prior written statements, it was self-evident that the Crown could establish adversity within the meaning of s. 9(1). Crown counsel contends that the appellant cannot rely on the failure to adhere to the procedural niceties of s. 9(1) when trial counsel (not Mr. Addario) never suggested that the procedures were necessary to protect the appellant’s interests.

[51] I incline towards the Crown’s contention that the Crown could have established D.F.’s adversity if put to the test. In doing so, I reject the appellant’s submission that the trial judge could only find adversity if satisfied that the two alleged statements were actually made. The trial judge was entitled to consider the entirety of D.F.’s evidence in deciding whether he was adverse to the Crown. Given the tenor of that evidence and the numerous established inconsistencies between it and other written statements he made, the trial judge could have found adversity without coming to any definitive conclusion on whether the two oral statements were actually made.

[52] This is not a case, like R. v. Williams (1985), 1985 113 (ON CA), 18 C.C.C. (3d) 356 at 369-71 (Ont. C.A.), where the only basis for finding adversity were allegedly inconsistent statements that were not proven to have been made. It was in that context that Martin J.A. said:

It seems to me to be entirely logical that, if the judge is to make a finding that the witness is adverse on the basis of a prior inconsistent statement alleged to have been made by the witness, he must be satisfied to some degree that the statement which constitutes the basis for finding that the witness is adverse was made. It would, in my view, be illogical and startling if the judge could make a finding that a witness is adverse on the basis of an inconsistent statement alleged to have been made by the witness which the judge is not satisfied the witness made. It would be even more startling if the judge were to declare the witness adverse on the basis of a prior inconsistent statement which the judge was satisfied that the witness did not make. There are no factors other than the alleged inconsistent statement which provided a basis for declaring [the witness] adverse. [Emphasis added.]

[53] In this case there was ample evidence, apart from the two alleged inconsistent oral statements, to support a finding that D.F. was adverse in interest to the Crown. Assuming the trial judge would not have gone so far as to find that the alleged oral statements were not made, I think he could have found adversity without finding that the statements were made.

[54] However, I will not determine this ground of appeal on the basis of what I think the trial judge would have done if asked to determine whether D.F. was adverse to the Crown. Instead, I will put the case at its highest for the appellant and assume that the questions relating to the two alleged inconsistent statements should not have been asked.

[55] D.F. denied making the statements and the jury heard no evidence to contradict that denial. As Mr. Addario put it in his factum, “the cross-examination accomplished nothing”. The only possible prejudice to the appellant arises from the risk that the jury found, based on the questions, that the statements were made, despite the absence of any evidence supporting that finding. I accept that there is a risk that a jury will take counsel’s questions as a source of evidence. That is why many trial judges specifically tell juries that evidence comes from the answers given by witnesses and not from the questions posed by counsel. This trial judge did not give that specific instruction.

[56] However, I think that the risk that the jury would infer from the questions themselves that the statements were in fact made, despite the witness’ denial that he made the statements, was minimal. The two questions were put early in what was a relatively long trial and no further reference was made to either statement. They were but two of many suggestions put to various witnesses, by both counsel, that were rejected by the witnesses in the course of their testimony. The trial judge did tell the jury that the evidence consisted of the “testimony” of the witnesses. As reasonable, intelligent people, I do not think the jury would divorce the question put by counsel from the answer given by the witness and conclude that the word testimony included the question without the answer.

[57] Most significantly, appellant’s trial counsel did not ask the trial judge to specifically caution the jury that there was no evidence that the two impugned statements were made. It is always difficult for a trial judge to decide whether to specifically refer to some event that occurred in the course of the trial for the purpose of instructing the jury that it should have no bearing on their deliberations. There is a legitimate concern that any such caution will simply give the event a prominence that it does not deserve. Often the interests of justice are best served by saying nothing. Trial judges look to counsel for assistance in determining whether the accused is better protected by silence or a caution. The appellant was capably represented at trial and the absence of any request by counsel for a specific instruction with respect to the alleged statements demonstrates that he was satisfied that the appellant’s interests were best served by saying nothing about the alleged statements.

[58] I am satisfied that the trial judge did not err in law by failing to tell the jury that there was no evidence to show the alleged statements were made. I am equally satisfied that his failure to do so did not occasion any miscarriage of justice in this case: see R. v. Schaefler, [2002] O.J. No. 647 (C.A.).

[59] The last ground of appeal arises from the trial judge’s failure to instruct the jury on the limited use it could make of Francis’ preliminary inquiry testimony. At trial, Francis was cross-examined at length by Crown counsel on his preliminary inquiry testimony. That testimony was inconsistent with his trial testimony. Francis did not adopt the inconsistent parts of his preliminary inquiry testimony and explained that his recollection of the events had changed over time.

[60] Absent admissibility under the principled exception to the hearsay rule, a prior inconsistent statement made by a witness but not adopted by that witness as true, is admissible only in assessing the witness’ credibility and not for the truth of its contents. This limited use should be made clear to the jury: R. v. Deacon, 1947 38 (SCC), [1947] S.C.R. 531; R. v. B.(K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740; R. v. Campbell (1977), 1977 1191 (ON CA), 17 O.R. (2d) 673 (C.A.).

[61] Crown counsel does not suggest that Francis’ testimony at the preliminary inquiry was admissible under the principled exception to the hearsay rule. However, the trial judge did not give a limiting instruction to the jury, despite both counsel suggesting that one should be given and the trial judge’s indication before responding to a question from the jury that he proposed to give one. To the contrary, the trial judge told the jury that the evidence “consist[ed] of the testimony of witnesses”. I think the jury would have understood “testimony” to include the evidence given at the preliminary inquiry.

[62] The trial judge’s failure to give a proper limiting instruction constitutes an error in law. The appellant is entitled to succeed on this ground of appeal unless the Crown can successfully invoke s. 686(1)(b)(iii) of the Criminal Code by demonstrating that the error in law occasioned no substantial wrong or miscarriage of justice. Section 686(1)(b)(iii) is applicable only in narrow circumstances. The Crown must satisfy the appellate court that there is no reasonable possibility that the verdict would have been different had the error not been made: R. v. Bevan, 1993 101 (SCC), [1993] 2 S.C.R. 599 at 617; R. v. Haughton, 1994 73 (SCC), [1994] 3 S.C.R. 516; R. v. Hibbert (2002), 2002 SCC 39, 163 C.C.C. (3d) 129 at 153 (S.C.C.).

[63] Recently in R. v. Khan (2001), 2001 SCC 86, 160 C.C.C. (3d) 1 at 18-22 (S.C.C.), Arbour J. provided further insight into the application of s. 686(1)(b)(iii). She observed at p. 21 that the proviso could be applied:

where either the triviality of the error itself, or the lack of prejudice caused by a more serious error of law justified the application of the curative proviso … .

[64] Arbour J., in Khan, supra, at p. 22, also acknowledged that s. 686(1)(b)(iii) could be applied:

even in cases where errors are not minor and cannot be said to have had only a minor effect on the trial, but only if it is clear that the evidence pointing to the guilt of the accused is so overwhelming that any other verdict but a conviction would be impossible … .

[65] The error in this case cannot be characterized as inherently trivial. I also cannot describe the Crown’s case against the appellant as overwhelming, although it was certainly strong. The curative proviso can only be applied if the Crown can demonstrate that the error caused no prejudice in the circumstances of this case.

[66] The appellant would be prejudiced in this case if the jury used any part of Francis’ testimony on the preliminary inquiry to make findings of fact that assisted the Crown. In considering whether there is any possibility that the jury used the preliminary inquiry testimony for that purpose, it is important to recognize that this is not a case where the witness’ preliminary inquiry testimony supports the Crown’s position and his trial testimony amounts to a recantation of the preliminary inquiry testimony. In some ways, Francis’ preliminary inquiry testimony was more favourable to the appellant than his trial testimony.[^1] In other respects, Francis’ preliminary inquiry testimony and his trial testimony were equally unhelpful to the Crown.[^2]

[67] Francis did, however, say two things during his examination-in-chief at the preliminary inquiry that potentially assisted the Crown. He described his exit from the apartment in a way that indicated that he did not make contact with the appellant. He also said that he was outside of the apartment, and part way down the hall, when he heard the gunshot and that the appellant came out of the apartment some five seconds after him. Even this evidence, however, was of very limited potential value to the Crown given Francis’ concession on cross-examination at the preliminary inquiry that there may have been a much briefer interval of time between when he left the apartment and when the gun was fired; and his acknowledgement that he “could have” grabbed the appellant on his way out of the apartment. In my view, even if the jury, unrestrained by a proper limiting instruction, culled through the excerpts from Francis’ preliminary inquiry evidence for support of the Crown’s case, there was little there to offer that support.

[68] By far, the most obvious value of the preliminary inquiry testimony rested in its potential to undermine the credibility of Francis’ trial testimony. He testified at trial that he first recalled grabbing the appellant only a few months prior to the trial while he was lying in bed one night. As the extracts from the preliminary inquiry clearly demonstrate, the exact scenario Francis testified to at trial was put to him by the appellant’s counsel many months earlier at the preliminary inquiry. When it was put to him, Francis could only indicate that it “could have” happened that way. The jury were of course entitled to use Francis’ testimony at the preliminary inquiry in determining his credibility. If they did so, that prior testimony may well have destroyed his credibility. That does not, however, constitute prejudice to the appellant.

[69] Crown counsel’s position at trial is also important in assessing whether the absence of a proper limiting instruction prejudiced the appellant. Crown counsel made his position crystal clear in his closing address to the jury:

At the end of the day with respect to Kahlil Francis’ testimony, I say to you Kahlil Francis wouldn’t know the truth if it came up and hit him between the eyes. I say to you that he is a liar and you can’t rely on a thing he says and His Honour will tell you that you can rely on none, some or all of what a witness says, but what I say to you with respect to Mr. Francis is that this is one of those unusual people – one of these unusual cases where it would be totally unsafe to believe anything he says, whether you use it for or against the accused.

[70] Clearly, Crown counsel did not invite the jury to use Francis’ preliminary inquiry testimony improperly for the truth of its content. Instead, he expressly declined to rely on anything Francis said to support the Crown’s case.

[71] The position taken by Crown counsel in his closing address reflects the forensic reality of this case. Francis’ evidence offered the only support for the defence claim that the gun discharged accidentally. If the jury rejected that evidence as false, as the Crown argued it should, the jury was left with the uncontradicted evidence of Ms. Ghent. That evidence was supported by the evidence that the appellant acquired the shotgun before the robbery, loaded it before the robbery, used it to threaten the victims during the robbery, and shot Ms. Christie from point blank range immediately before he left the apartment. As the evidence developed, the jury had an unobstructed path to conviction if they rejected Francis’ evidence. From the Crown’s perspective, there was no need for the jury to accept any part of what Francis said at the preliminary inquiry. Rejection of his trial testimony was all the Crown needed, or asked for.

[72] Mr. Addario submits that the jury may have improperly used parts of Francis’ preliminary inquiry testimony to confirm the veracity of Ms. Ghent’s evidence. He writes in his factum:

For instance, Ghent testified at trial that when Christie was shot, Francis had already left the apartment and closed the door behind him. This was contradicted by Francis’ evidence at trial, but was consistent with his preliminary inquiry testimony.

[73] In fact, Ms. Ghent’s trial testimony was not entirely consistent with Francis’ preliminary inquiry evidence. He did not testify that he closed the door when he left the apartment while Ms. Ghent testified that she heard the door close when he ran out. Ms. Ghent’s testimony at trial was also not entirely inconsistent with what Francis said about his departure from the apartment at trial. He testified that he was in the doorway on his way out when the shot was fired. She said he was outside in the hall. Francis’ two versions of the relevant events were neither entirely consistent nor inconsistent with Ms. Ghent’s evidence.

[74] In addition, when considering the possibility that the jury may have used Francis’ preliminary inquiry evidence to confirm Ms. Ghent’s trial testimony, it must be recalled that in cross-examination at the preliminary inquiry, Francis went so far as to acknowledge that he could have grabbed the appellant and that he could have overestimated the time interval between his leaving the apartment and the firing of the shot. To the extent that Francis’ preliminary inquiry testimony offered support for Ms. Ghent’s testimony, that support paled beside much of the other uncontested evidence that offered strong support for her version of the events.

[75] Mr. Addario also refers to a question the jury asked during its deliberations as an indication that it may have misused Francis’ preliminary inquiry testimony. I do not think that the question bears that interpretation. The jury wanted to know what Francis said at the preliminary inquiry about the “bumping or grabbing” incident. The foreman, in response to the trial judge’s question, said:

There was, as I understand it, different evidence, as I remember it, different evidence on that particular point … If my understanding is correct, Your Honour[,] there was no mention made of the bumping incident at the preliminary. If that is correct, then it would suffice to have the questions, the direct and cross on the trial, responses … pertaining to that. If my understanding is correct, if my memory is correct, he did not mention anything about the grabbing incident at the preliminary trial. If that is correct, we do not need to ask for that part.

[76] As I interpret the question, the jury wanted to be sure that it fully understood the various versions of events that Francis gave at trial and at the preliminary inquiry. This suggests a comparative exercise which is entirely consistent with the use of the preliminary inquiry testimony to test the credibility of Francis’ trial evidence.

[77] Placed in the context of what Francis actually said at the preliminary inquiry and the positions taken at trial, I am satisfied that the Crown has discharged its burden and demonstrated that the failure to give the proper limiting instruction resulted in no substantial wrong or miscarriage of justice. I would apply the curative proviso of s. 686(1)(b)(iii) of the Criminal Code to dismiss this ground of appeal.

[78] For the reasons above, I would dismiss the appeal.

RELEASED: “D.D.” “JUN 19 2002”

“Doherty J.A.”

“I agree Louise Charron J.A.”

“I agree Robert P. Armstrong J.A.”

[^1]: For example, Francis testified at the preliminary inquiry that the appellant was not privy to the discussions leading up to the robbery and that he did not see the appellant with a gun during the robbery. At trial, he said that the appellant was privy to the plan and that the appellant did have a gun during the robbery which he pointed at the victims while Francis searched the apartment.

[^2]: For example, Francis testified both at the preliminary inquiry and at the trial that he did not hear the appellant say anything to Ms. Christie immediately before he shot her.