Court of Appeal for Ontario
Date: 2003-09-17 Docket: C36973
Before: Rosenberg and Simmons JJ.A. and Langdon J. (ad hoc)
Her Majesty the Queen Respondent
- and -
Robert Armstrong Appellant
Counsel: Clayton Ruby and Breese Davies for the appellant David Lepofsky for the respondent
Heard: June 2, 2003
On appeal from the conviction by Justice Lawrence W. Whalen of the Superior Court of Justice, sitting with a jury, and sentence imposed on June 28, 2001.
Reasons for Decision
ROSENBERG J.A.:
[1] The central issue in this appeal concerns the failure of the trial judge to give a full and complete warning in accordance with R. v. Vetrovec (1982), 67 C.C.C. (2d) 1 (S.C.C.). The appellant submits that the principal witness against him on his trial on charges of first and second degree murder was an unsavoury witness and that the trial judge, Whalen J., was required as a matter of law to give a clear, sharp warning as to the danger of acting upon the evidence of this witness without confirmation.
[2] I agree with the appellant’s submission that the trial judge was required as a matter of law to provide such a warning. However, I am also persuaded that the instructions that were given were sufficient to alert the jury to the dangers associated with this witness and that accordingly no substantial wrong or miscarriage of justice was occasioned. While the appellant raises a number of other grounds of appeal, I am satisfied that there was no reversible error and the appeal should be dismissed.
The Facts
[3] By the end of the trial, there was little dispute about many of the facts. On August 4, 1999, the appellant, who was travelling with his young son, and was en route to a family cottage on St. Joseph’s Island near Sault Ste. Marie picked up three young hitchhikers. They were Melody Lopez, who became the victim of the first degree murder charge, Shawn Barrett, who became the victim of the second degree murder charge, and Chris Rogers. Ms. Lopez and Mr. Barrett were a couple and Ms. Lopez was five months pregnant with the couple’s child. There were two other persons at the cottage: the appellant’s 19 year old brother, Richard Armstrong, who sometime before the trial attempted to commit suicide and was left with permanent brain damage and therefore unable to testify, and Dale McRae, the appellant’s 18 year old cousin who became the principal witness against the appellant.
[4] On August 5, 1999, the group, except for the appellant’s son and Ms. Lopez, consumed large quantities of alcohol. In the course of the day, the group practiced target shooting with one of several guns kept at the cottage. Around this time the appellant became involved in a dispute with Mr. McRae and Mr. Barrett over some remark that the appellant made to or about Ms. Lopez. The appellant felt threatened and pointed a loaded revolver at Mr. Barrett. This ended the altercation. The parties agreed that Ms. Lopez should take possession of the revolver. The gun was unloaded and Ms. Lopez threw it under the cottage. On this same day, the appellant became involved in a physical altercation with Mr. McRae after McRae began picking on the appellant’s brother. In the course of this fight the appellant knocked Mr. McRae to the ground several times.
[5] Around 9:00 p.m., the appellant, Barrett and Rogers drove into town to get more liquor. As the stores were closed, they decided to go the United States to make their purchases. Barrett did not enter the United States because he did not have proper identification. On the way back Rogers, a United States citizen, was refused entry to Canada because of his criminal record. He and Barrett spoke for a few minutes and arranged to meet some time later in Ms. Lopez’s home town in the United States. The appellant’s truck was impounded by customs officials and so he and Barrett made their way back to the cottage by taxi.
[6] The appellant and Mr. Barrett arrived back at the cottage at about 2:00 a.m. It had been at least five hours since they last consumed any alcohol. They unloaded their purchases and went out to the back of the cottage. Within a few minutes, Mr. Barrett and Ms. Lopez were dead.
[7] The appellant and Mr. Barrett must have become involved in some kind of argument. According to the appellant, the argument was over the fact that Rogers had been refused entry into Canada. He claimed that Barrett blamed him for this and then attacked him with a shovel. He testified that Barrett hit him several times with the shovel including a blow to the face that resulted in a gash over his eye, a split lip, and a swollen eyebrow. The appellant testified that he then picked up the revolver, which someone had retrieved from under the cottage and reloaded. The appellant said that he shot Barrett in self-defence.
[8] The appellant testified that he went into the cottage and woke up Mr. McRae to drive him to the police station. He told McRae that Barrett had come at him with a shovel. He could not explain why he did not use his cell phone to contact the police. According to the appellant, McRae convinced him to tell Ms. Lopez what had happened before they made any decisions. Ms. Lopez came out and saw her friend’s body. She started to scream and, according to the appellant, McRae picked up the gun and shot her in the head and told the appellant that, “I just fixed your fuckin’ problem”. The appellant conceded that he and his cousin were not very close.
[9] McRae’s version of the killings was different. He was awakened by the appellant and asked to come outside. The appellant told him that Mr. Barrett had picked up a shovel and that he had shot him. The appellant then went into the cabin and woke up Ms. Lopez and asked her to come outside. As she walked towards the fire pit she saw Barrett’s body. The appellant then shot her. The appellant then shot Rogers’ dog.
[10] It was undisputed that the appellant and McRae put the bodies on the fire and cremated the remains by building a very hot fire. In the morning, they disposed of the ashes. The appellant claimed that he was largely acting at the direction of his younger cousin, McRae. Mr. McRae testified that he was acting under the direction of the appellant and that he did so out of fear.
[11] Later that day, the appellant and his brother returned to the border to try and retrieve the truck. In the course of that attempt, the appellant was in the presence of a Canadian customs officer for many hours. She testified in reply that the appellant had no injuries to his face.
[12] The parents of the two victims became concerned about the whereabouts of their children and contacted the police. Eventually, the police were able to determine that the deceased had last been at the appellant’s cottage. The appellant was arrested and charged with the murders. On December 15, 1999, Mr. McRae was also arrested and charged with two counts of first degree murder. He gave several statements to the police and as a result the murder charges were dropped and he was charged with being an accessory after the fact. He made the statements so that he might be released from jail and not be charged with murder. When his charges were reduced, he asked the police for assistance in getting bail. He was awaiting trial when he testified at the appellant’s murder trial.
The Issues
[13] The appellant alleges the following errors by the trial judge:
(i) the failure to give a Vetrovec warning with respect to Mr. McRae;
(ii) permitting the Crown to adduce certain evidence of bad character and failing to direct the jury as to the limited use of that evidence;
(iii) misdirecting the jury with respect to the use to be made of Mr. McRae’s criminal record;
(iv) failing to edit the appellant’s own record to remove reference to two assault convictions;
(v) permitting the Crown to adduce certain evidence in reply;
(vi) misdirection on the appellant’s post offence conduct;
(vii) misdirection on reasonable doubt; and
(viii) misdirection on self-defence.
Analysis
(i) The failure to give a Vetrovec warning with respect to Mr. McRae
[14] A Vetrovec warning is not required for all witnesses who technically fall within the category of accomplices and for many witnesses falling within that category a trial judge has a discretion whether or not to give a warning. In some cases, however, the circumstances are such that the judge has no discretion, the warning must be given and failure to do so is an error of law: R. v. Bevan (1993), 82 C.C.C. (3d) 310 (S.C.C.) and R. v. Brooks (2000), 2000 SCC 11, 141 C.C.C. (3d) 321 (S.C.C.).
[15] In Brooks at para. 80, Major J. speaking for a majority of the court on this issue, described the factors that the court will take into account in deciding whether a warning was mandatory:
In summary, two main factors are relevant when deciding whether a Vetrovec warning is necessary: the witness's credibility, and the importance of the witness's testimony to the Crown's case. No specific threshold need be met on either factor before a warning becomes necessary. Instead, where the witness is absolutely essential to the Crown's case, more moderate credibility problems will warrant a warning. Where the witness has overwhelming credibility problems, a warning may be necessary even if the Crown's case is a strong one without the witness's evidence. In short, the factors should not be looked to independently of one another but in combination [emphasis added].
[16] By the end of the evidence in this case, it was mandatory that the trial judge give the jury a Vetrovec warning. While the appellant had confirmed McRae’s evidence that he had killed Barrett, McRae’s evidence played a central role in the proof of the circumstances of the killing of Ms. Lopez. Further, as counsel for the appellant observed, if the jury accepted McRae’s evidence that the appellant executed Ms. Lopez, it was highly unlikely that they would accept the appellant’s self-defence claim. So, even though McRae had no direct evidence concerning the Barrett killing, the jury would have looked at his evidence to decide whether the appellant’s self-defence claim had any merit.
[17] There were sufficient problems with McRae’s credibility that, combined with his role in the case, the Vetrovec warning was mandatory. McRae had originally been charged with the murders, he had not yet been tried on his own charges of accessory after the fact, he had a criminal record including convictions for dishonesty, and he had made some prior statements that were inconsistent with his testimony at trial.
[18] Defence counsel at trial objected to the trial judge’s failure to give the Vetrovec warning. The trial judge indicated that he had decided not to give a warning because he concluded that McRae had not “reached the unsavoury level. Most of it was as a youthful offender and I had a different impression.” In my view, the trial judge erred. He took too narrow and subjective an approach. While the trial judge recognized that McRae had a motive to lie because he was facing trial as an accessory after the fact he did not factor this into whether the warning was required. He also failed to factor in the fact that the witness had originally been charged with the same offences and had received a substantial benefit from the authorities after providing his statement. McRae had the strongest of motives for falsely implicating the appellant in the killings.
[19] While the trial judge erred in law, I am of the view that this is a proper case for applying the proviso in s. 686(1)(b)(iii) of the Criminal Code. In my view, there is no reasonable possibility that it would have made any difference to the verdict if McRae’s evidence had been accompanied by a proper Vetrovec warning.
[20] Appellate courts have applied the proviso in cases where the trial judge erred in law in failing to give a Vetrovec warning. In R. v. Brooks, Binnie J. applied the proviso in a case where two unsavoury witnesses who were jailhouse informers testified for the Crown and yet no Vetrovec warning was given. In that case, the trial judge did nothing to single these witnesses out for special attention other than alerting the jury to their respective criminal records. At para. 137, Binnie J. noted that the proviso can rarely be applied where the trial judge has failed to give a Vetrovec warning for a witness who is central to the case:
Whether or not a new trial is necessary will largely depend on the degree of centrality of the evidence of the unsavoury witness to the conviction. In most cases, a witness whose testimony is sufficiently important to require the Vetrovec warning in the first place will likely be sufficiently central to preclude application of s. 686(1)(b)(iii), as in R. v. Sanderson (1999), 134 Man. R. (2d) 191 (C.A.) at p. 193 (where the unsavoury witness gave "the only evidence presented by the Crown which implicated" the accused), and R. v. Siu (1998), 124 C.C.C. (3d) 301 (B.C.C.A.) ("the Crown would have had virtually no case without" the unsavoury witness's evidence). In such cases, application of the curative proviso would clearly be wrong.
[21] In Brooks, Binnie J. concluded that there was no reasonable possibility that it would have made any difference to the ultimate verdict if the evidence of the unsavoury witnesses had been accompanied by a warning and therefore the provisions of s. 686(1)(b)(iii) could be applied. In reaching that conclusion, he noted that there was a formidable case against the appellant that did not depend upon the unsavoury witnesses. That case included substantial circumstantial evidence and admissions that the appellant had made to persons other than the jailhouse informers. Binnie J. also held, at para. 144, that “[c]onsideration of the likely impact of the failure to give a Vetrovec warning must also be qualified by the trial judge's undoubted discretion to bring to the jury's attention other evidence capable of corroborating the testimony of [the jailhouse informers]”. The accused was not entitled to a trial without those witnesses, “only to a Vetrovec warning, which in this case would have been a mixed blessing, as defence counsel perhaps acknowledged by his lack of objection to the trial judge's failure to deliver a Vetrovec warning”.
[22] In R. v. Baltrusaitis (2002), 162 C.C.C. (3d) 539 (Ont. C.A.), Moldaver J.A., speaking for the court, held that the proviso could not be applied where the trial judge had failed to give a Vetrovec warning with respect to a jailhouse informer. He approached the case on the basis that the proviso could be applied only if either the independent evidence capable of confirming the jailhouse informer was so compelling that the jury would inevitably have accepted his evidence, or the circumstantial case against the accused was so overwhelming that even without the informer’s evidence, the verdict would inevitably have been the same.
[23] In R. v. Bevan at pp. 326-27, Major J. speaking for a majority of the court held that the proviso could not be applied where the trial judge had failed to give a Vetrovec warning in relation to two unsavoury witnesses who were crucial to the Crown’s case. Major J. held at p. 329 that the jury might have treated the evidence of the two witnesses “less cautiously during their deliberations than they would have had the trial judge given a proper Vetrovec warning”.
[24] It seems to me that the approach to application of the proviso in this case must be different from these other cases and that it is necessary to return to first principles. In R. v. Arradi, 2003 SCC 23 at para. 42, Arbour J. held that there are two classes of errors of law that lead to the application of s. 686(1)(b)(iii). The first consists of “harmless or minor errors having no impact on the verdict”. The second class encompasses serious errors that would require a new trial except that the evidence is so overwhelming that no substantial wrong or miscarriage of justice occurred. Brooks would seem to be an example of a case falling within the latter class. This case does not fit within that class of cases. While the case against the appellant was formidable and the appellant’s story improbable, I cannot say that the evidence was so overwhelming that if the failure to give a proper Vetrovec warning was a serious error, no substantial wrong was occasioned.
[25] In my view, there are at least two types of error within the first class of errors of law identified by Arbour J.A. in Arradi. She reviewed this issue at somewhat greater length in the earlier decision in R. v. Khan (2001), 2001 SCC 86, 160 C.C.C. (3d) 1 (S.C.C.) at para. 30 noting that the case law was “replete with examples of situations 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”. She summarized the approach that an appellate court should take in considering whether such errors can be cured by the proviso:
In all those cases, the appellate courts were convinced that the error could have had no effect on the verdict. Because of the nature of the errors and of the issues with respect to which they were made, it was possible to trace their effect on the verdict and ensure that they made no difference. Generally, the errors concerned evidence that was insignificant to the determination of guilt or innocence … or benefited the accused by imposing a more onerous standard on the Crown …. Errors in the charge to the jury respecting a very minor aspect of the case that could not have had any effect on the outcome or concerning issues that the jury was otherwise necessarily aware of were also cured by the application of the proviso …. Similarly, in some cases the errors concerned preliminary findings that would nevertheless, as a matter of law, inevitably have resulted in the same finding made by the trial judge …. [emphasis added].
[26] I would not categorize the trial judge’s error in this case as trivial and thus the proviso can only be applied because of the lack of prejudice. It thus becomes necessary to look at the nature of the error and to trace its effect on the verdict. To understand the effect of the trial judge’s error it is necessary to set out both what a proper Vetrovec warning would have looked like and what the trial judge said about McRae. This exercise must be undertaken bearing in mind, as Binnie J. said in Brooks, that the appellant was not entitled to a trial without McRae’s evidence. Thus, the purpose of the Vetrovec warning was not to have the jury ignore his evidence but to approach it with an appropriate degree of caution.
[27] In Vetrovec at pp. 17-8, Dickson J. set out the components of the warning:
Because of the infinite range of circumstance which will arise in the criminal trial process it is not sensible to attempt to compress into a rule, a formula or a direction the concept of the need for prudent scrutiny of the testimony of any witness. What may be appropriate, however, in some circumstances, is a clear and sharp warning to attract the attention of the juror to the risks of adopting, without more, the evidence of the witness. There is no magic in the word corroboration, or indeed in any other comparable expression such as confirmation and support. The idea implied in those words may, however, in an appropriate case, be effectively and efficiently transmitted to the mind of the trier of fact. This may entail some illustration from the evidence of the particular case of the type of evidence, documentary or testimonial, which might be drawn upon by the juror in confirmation of the witness's testimony or some important part thereof. I do not wish to be taken as saying that such illustration must be carried to exhaustion. However, there is, in some circumstances, particularly in lengthy trials, the need for helpful direction on the question of sifting the evidence where guilt or innocence might, and probably will, turn on the acceptance or rejection, belief or disbelief, of the evidence of one or more witnesses. All of this applies equally in the case of an accomplice, or a disreputable witness of demonstrated moral lack, as, for example, a witness with a record of perjury. [emphasis added].
[28] Thus, in this case the trial judge should have cautioned the jury that it was dangerous to act upon the evidence of McRae alone because he was an accessory after the fact and had not yet been tried for those charges, had been involved in concealing the crimes, had a motive to falsely implicate the appellant when he gave his statements to the police, had a criminal record for crimes of dishonesty, and had made some prior inconsistent statements. The trial judge should have told the jury that while McRae was now no longer facing the murder charges he continued to have a motive to stick to his original story to avoid prosecution for murder. The jurors’ everyday experience would not necessarily equip them with the knowledge of the dangers of relying, without more, on witnesses like McRae. See R. v. Brooks at para. 130.
[29] The judge would then have been required to pick out some of the evidence that was capable of restoring confidence in McRae’s credibility. The most important piece of evidence was in the appellant’s own testimony admitting that he had killed Mr. Barrett with the same gun that was used to kill Ms. Lopez. There were other pieces of evidence to which the trial judge might have referred such as the appellant’s admission that he and McRae were not close and had quarrelled earlier in the day making it improbable that McRae would commit a first degree murder for him. There was also the appellant’s admission that he had earlier threatened Barrett with the loaded revolver.
[30] I now turn to what the trial judge did tell the jury about Mr. McRae. The trial judge reviewed McRae’s criminal and young offender record and gave a standard direction that the record was one of the factors to be used in assessing his credibility. He then gave this instruction:
Dale McRae is charged with being an accessory after the fact in the murders of Shawn Barrett and Melody Lopez. You heard that testimony here. You heard evidence that he was once charged with their murders, but the charges were reduced. Dale McRae’s trial has not yet been held.
A Crown witness who is awaiting trial himself on charges may have an interest in testifying favourably for the Crown in this trial. Favourable testimony here may help the witness out in his own case later, or the witness may believe that it will be so.
You should approach the evidence of Dale McRae with care and caution. When you consider how much or little you will believe of and rely on this evidence to decide this case, take in, take into account the fact that he is himself awaiting trial on charges arising from the matters here before you. It’s a factor for you to consider. How much or little it influences you is up to you [emphasis added].
[31] Finally, the trial judge exhaustively reviewed McRae’s testimony including the cross-examination in which various inconsistencies from prior statements were set out.
[32] The excerpt from the charge that I have set out was not a proper Vetrovec warning. But it did go a long way to alerting the jury to the fact that McRae occupied a special place in the trial and why his evidence had to be approached with caution. The trial judge said that explicitly: “You should approach the evidence of Dale McRae with care and caution.” In Brooks at para. 132, Binnie J. adopted the following passage from the reasons of Osborne J.A. in R. v. Bevan (1991), 63 C.C.C. (3d) 333 (Ont. C.A.) at 361‑62:
However, in those cases where a clear sharp warning is required, it seems to me that it is of fundamental importance that the form of the warning take into account that its underlying purpose is to direct the jury's special attention to the risk of convicting an accused on the basis of the evidence of a witness who may be viewed, for reasons such as self-interest, as untrustworthy. Thus, the witness should be singled out, that is, separated from the pack. The jury should be told to scrutinize the evidence for evidence which would confirm or support the testimony of the witness who is said to have a motive to lie, or who is of unsavoury character . . . In my view, it is preferable in most cases that the trial judge tell the jury why the evidence of a given witness requires special scrutiny, that is, why the light of the credibility microscope should be turned up [emphasis added by Binnie J.].
[33] This part of the trial judge’s charge did single out McRae for special treatment and separated him from the pack. Given this warning and the full review of McRae’s testimony by the trial judge, the jury could not help but realize the need to approach his evidence with care and of the reasons to do so. I am satisfied that a more complete Vetrovec warning, which would have been accompanied by reference to the parts of the evidence that supported McRae’s story, would not have affected the result in this case. I would not give effect to this ground of appeal.
(ii) Permitting the Crown to adduce certain evidence of bad character and failing to direct the jury as to the limited use of that evidence
[34] Over objection by the defence, the trial judge permitted the Crown to lead evidence from Mr. McRae that several days after the killings the appellant became involved in a quarrel with his brother and during the fight fired a gun into the air. The appellant then left the property with his son. The appellant’s father, who had now come to the cottage, grabbed the gun and followed the appellant. Mr. McRae heard two gunshots a short time later. The trial judge admitted the evidence because it showed McRae’s state of mind shortly after the killing and explained why he was afraid to go to the police.
[35] The appellant submits that this evidence was inadmissible and in the alternative that the trial judge misdirected the jury as to its use. I would not interfere with the trial judge’s decision to admit the evidence. It had probative value in explaining McRae’s state of mind. He testified that he was terrified after this event and it helped to explain why he did not go to the authorities. The prejudicial effect of the evidence was relatively minimal bearing in mind the other evidence that was properly admitted of violence and use of guns by the appellant preceding the killings.
[36] I agree with the appellant that the trial judge should have explicitly told the jury that this evidence could only be used as evidence of McRae’s state of mind and not as evidence that the appellant was the type of person likely to have committed murder. That said, this evidence played such a minor part in this trial no prejudice was occasioned by the failure to give a complete direction. There was, in my view, no possibility that the jury would engage in prohibited propensity reasoning from this incident. Crown counsel did not suggest any such use of the evidence in his closing address and experienced defence counsel did not object to this portion of the charge.
(iii) Misdirecting the jury with respect to the use to be made of Mr. McRae’s criminal record
[37] The appellant submits that the trial judge should have instructed the jury that Mr. McRae’s prior criminal record was not only relevant to credibility but could be used as circumstantial evidence to support the defence position that he rather than the appellant killed Ms. Lopez. The appellant suggests that the record shows that McRae has a propensity for violence. McRae’s record mostly consists of crimes committed when he was a young offender. The only crime of violence is a conviction for robbery in September 2000 for which he received an eight-month sentence. He also had many convictions for break and enter. Only one of these convictions was when McRae was an adult. In cross-examining Mr. McRae, defence counsel made no attempt to elicit the details of the facts underlying any of these convictions.
[38] At trial, defence counsel did not seek the instruction now asked for and made no objection to the charge to the jury about the instructions concerning the use of McRae’s criminal record. In his jury address, defence counsel did not argue that McRae had a disposition towards violence as a result of his criminal record. In my view, the trial judge was not required to give the instruction now sought. As the defence presented the case to the jury, this was not a live issue. It was not incumbent on the trial judge to try to devise instructions for uses for evidence that experienced defence counsel at trial did not seek. Further, in the absence of any evidence about the facts leading to those convictions, and whether any of the convictions involved violence to the person, the jury would have had little basis for attributing any weight to an instruction that these convictions showed a propensity for violence on the part of McRae and thus made it more likely that he rather than the appellant killed Ms. Lopez. I would not give effect to this ground of appeal.
(iv) Failing to edit the appellant’s own record to remove reference to two assault convictions
[39] The appellant has a criminal record for dangerous driving, possession of stolen goods, breach of recognizance, failing to stop at the scene of an accident, impaired driving, possession of a prohibited weapon, acquisition of a firearm without a firearms acquisition certificate and two counts of assault, one in 1994 and one in 1999. The appellant brought an application pursuant to Corbett v. The Queen (1988), 41 C.C.C. (3d) 385 (S.C.C.), seeking an order that the Crown not be permitted to cross-examine him on the weapons and assault convictions. The trial judge agreed with the appellant as regards the weapons offences. However, he refused to excise the assault convictions.
[40] The decision whether to edit a criminal record in accordance with Corbett is an exercise of discretion and is entitled to deference, absent an error in principle. The appellant submits that the trial judge erred in principle by adopting “the inclusionary approach suggested in Corbett”. He also submits that the trial judge was bound by this court’s decision in R. v. Brooks (1998), 129 C.C.C. (3d) 227 (reversed on other grounds (2000), 2000 SCC 11, 141 C.C.C. (3d) 321 (S.C.C.)).
[41] I have not been persuaded that the trial judge erred in principle. He gave very full reasons for why he was excising the weapons convictions but not the assault convictions. The “inclusionary approach” referred to is obviously a reference to the reasons of the majority in Corbett, where Dickson C.J.C. said at pp. 399-400:
There is perhaps a risk that if told of the fact that the accused has a criminal record, the jury will make more than it should of that fact. But concealing the prior criminal record of an accused who testifies deprives the jury of information relevant to credibility, and creates a serious risk that the jury will be presented with a misleading picture.
In my view, the best way to balance and alleviate these risks is to give the jury all the information, but at the same time give a clear direction as to the limited use they are to make of such information. Rules which put blinders over the eyes of the trier of fact should be avoided except as a last resort. It is preferable to trust the good sense of the jury and to give the jury all relevant information, so long as it is accompanied by a clear instruction in law from the trial judge regarding the extent of its probative value.
[42] It is not inaccurate to describe this approach as an inclusionary one, even though Dickson C.J.C. did endorse that part of La Forest J.’s reasons in which he set out the factors that a court should take into account in editing a criminal record.
[43] In Brooks, in circumstances very similar to this case, Laskin J.A. held that the trial judge ought to have excised an assault conviction from the accused’s record. He pointed out at para. 72 that assault convictions have less bearing on a person’s credibility than crimes of dishonesty and that a court should be “wary of admitting evidence of an accused's conviction for a similar crime in order to avoid the possibility that the jury might convict because of the accused's disposition to commit such crimes”. He also pointed out that there was little danger of the jury getting a distorted picture that the accused, unlike the Crown witnesses, was a person of reputable character because the accused had a recent record for other offences bearing more directly on credibility.
[44] The same considerations apply here and it would have been appropriate for the trial judge to excise the assault convictions. However, I am not persuaded that the trial judge erred in principle in refusing to do so. He provided reasons for his decision based on the “facts and dynamics” of the case. He was convinced that allowing the assault convictions to be placed before the jury would “provide balance in the context of the credibility issues in this case and the attack by the defence on the credibility of Dale McRae whose record is also before the jury”. Finally, I note that while Laskin J.A. held in Brooks at para. 73 that the trial judge should have excised the accused’s assault conviction he would not have interfered with the ruling, since he was not persuaded that the trial judge in that case exercised his discretion unreasonably. I am of the same view in this case.
(v) Permitting the Crown to adduce certain evidence in reply
[45] The appellant submits that the trial judge erred in permitting the Crown to adduce two pieces of evidence in reply. The first piece of evidence comes from Glenda LeMarquand, a Canada Customs officer. About 16 hours after the killings the appellant and his brother returned to the border in an attempt to retrieve the vehicle that had been impounded the night before. Officer LeMarquand dealt with the appellant over a period of about six hours and she testified in reply that the appellant had no injuries to his face. The defence argued at trial that the Crown was improperly splitting its case by calling the officer in reply.
[46] Officer LeMarquand had been questioned by the police back in December 1999 and had provided a statement to the police giving a general description of the appellant’s appearance and the events surrounding his attendance at Canada Customs in the afternoon of August 6, 1999. The Crown had disclosed that statement to the police. After the appellant testified and described the alleged assault by Mr. Barrett, the police reinterviewed Officer LeMarquand and specifically asked about any injuries to the appellant.
[47] In R. v. Campbell (1977), 38 C.C.C. (2d) 6 (Ont. C.A.) at 26, Martin J.A. set out the principles applicable to this issue. Reply or rebuttal evidence by the prosecution is limited to evidence to meet new facts introduced by the defence. The trial judge does, however, have “a discretion to admit evidence in reply which has become relevant to the prosecution’s case as a result of defence evidence which the Crown could not reasonably be expected to anticipate”. This includes a discretion to admit evidence in reply to a matter raised in cross-examination of Crown witnesses, providing it was not a live issue at the end of the prosecution case and admission of the evidence would not work an unfairness to the accused. See R. v. P. (G.) (1996), 112 C.C.C. (3d) 263 (Ont. C.A.) at 274.
[48] The appellant submits that by reason of the cross-examination of McRae the Crown could reasonably have anticipated that the defence to the killing of Mr. Barrett would be self-defence and that the appellant would allege that he had been attacked and injured by Mr. Barrett. In examination in chief, McRae testified that the appellant told him that Mr. Barrett picked up a shovel and the appellant then shot him. In cross-examination, defence counsel suggested to McRae that the appellant was bleeding when he spoke about the shovel incident. McRae denied that the appellant was bleeding. That was the extent of any cross-examination suggesting either self-defence or that the appellant had been injured. On that record, the trial judge concluded that the Crown could not reasonably anticipate that the appellant in his testimony would allege he had been struck with a shovel and been injured. I agree with that conclusion. At most, as in R. v. Campbell at p. 29, the question of self-defence may have been foreshadowed by the cross-examination of McRae, although even that is doubtful, but the issue to which officer LeMarquand testified did not arise until the appellant testified.
[49] This case is quite different from this court’s decision in R. v. Wood (1986), 28 C.C.C. (3d) 65, upon which the appellant placed particular reliance. In Wood, the Crown lead evidence in reply that the accused owned the knife that had been used in the killing. The reply witness had also testified for the Crown in its case in chief and made no mention of the ownership of the knife. During the defence case, several witnesses testified that the knife was not the accused’s. This court held that the reply evidence should not have been admitted. However, in that case the question of the possession and ownership of the knife was always important. In fact, in a statement to the police the appellant had claimed that the deceased had the knife, was flicking it at him and it was only after he and the deceased fought that he was able to get the knife away from the deceased and stab him in self-defence. In my view, the decision in Wood does not assist the appellant. The question of self-defence and injuries to the appellant was not a live issue in this case until the appellant testified. The trial judge properly exercised his discretion in admitting the evidence.
[50] The other piece of reply evidence came from the appellant’s former common law wife, Chantel Murray. After the appellant testified, the police interviewed her and she provided information about the type of underwear that the appellant usually wore. She told the police that the appellant sometimes wore Speedo type briefs in the summer. The relevance of this evidence arose in this manner: In examination in chief, McRae testified that when he saw the appellant after the killing of Mr. Barrett he was only wearing black Speedo type underwear. In cross-examination, defence counsel suggested to McRae that the story of the underwear was to “masquerade the fact that you don’t want that gun anywhere near you and so you say that he has the gun in his shorts”. McRae agreed with this suggestion. The appellant testified that at the time of the killings he was wearing boxer shorts and jeans. In cross-examination, he volunteered that his whole life he has only worn boxers. This testimony did not come in response to any question from Crown counsel about underwear.
[51] The trial judge permitted the witness to testify. Her testimony was extremely brief. She testified that the appellant wore flannel boxers in the winter and in the summer wore cotton boxers or Speedo or bikini type underwear. Defence counsel did not cross-examine her.
[52] The appellant submits that either the Crown improperly split its case by calling this evidence or its admission offended the collateral fact rule. The trial judge ruled that the evidence went to McRae’s credibility and was not collateral and even if it was the “the exception” in R. v. Shewfelt (1972), 6 C.C.C. (2d) 304 (B.C.C.A.) applied.
[53] The admission of this evidence does not engage the rule against improperly splitting the case. The question of whether the appellant ever wore Speedo or bikini type underwear did not arise until the appellant volunteered the information in cross-examination. The Crown could not possibly have anticipated that the appellant would take this position. The only real issue was whether the admission of this evidence offended the collateral fact rule.
[54] Evidence is not admissible in reply merely because it is relevant to the credibility of an important Crown witness. As held in R. v. Aalders (1993), 82 C.C.C. (3d) 215 (S.C.C.) at p. 230, the reply evidence must relate to an integral and essential issue of the case. In my view, Shewfelt does not create any broad exception to that rule. Shewfelt was a drug case. The thrust of the defence was that the principal Crown witness, the accused’s alleged accomplice, was herself a drug trafficker and her story about merely being a courier for the accused was a fabrication. The defence called evidence to show that the witness had trafficked in drugs on other occasions. The Crown was then permitted to call brief reply evidence to show that the witness was not in the province at the time these other events were said to have taken place. That evidence fell squarely within the Aalders statement of the rule. It went to an essential issue in the case, whether the accomplice was a drug trafficker as alleged by the defence or merely a courier as alleged by the Crown.
[55] That said, I am not satisfied that the trial judge erred in admitting Ms. Murray’s evidence. The evidence did not merely contradict the appellant nor relate to McRae’s credibility. In view of the cross-examination of McRae, the evidence was relevant to the possession of the gun, an issue that was central to the case. In those circumstances, I would not interfere with the trial judge’s decision to admit the evidence. It was open to the trial judge to conclude that the evidence did not offend the collateral fact rule.
(vi) Misdirection on the appellant’s post offence conduct
[56] The appellant submits that the trial judge erred in directing the jury that the evidence that the appellant disposed of the bodies was relevant to his claim of self-defence. The appellant submits that because the appellant admitted shooting Mr. Barrett with a handgun and thus his liability for possession of a prohibited weapon, the direction should not have been given, in accordance with R. v. Arcangioli (1994), 87 C.C.C. (3d) 289 (S.C.C.). The appellant also submits that the directions to the jury were inadequate in that the trial judge did not instruct the jury about possible innocent explanations for the conduct such as panic or fear of a false accusation.
[57] I cannot accept these submissions. In Arcangioli at p. 301, the Supreme Court held that where an accused’s post-offence conduct “may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence.” However, the appellant’s elaborate attempts to dispose of and conceal the bodies of the deceased in this case may not be equally explained by reference to consciousness of guilt over the relatively trivial offence of possession of a prohibited weapon. The trial judge was right not to give a no-probative-value instruction.
[58] I am also of the view that the trial judge’s instructions concerning the use of the post-offence conduct were adequate. The trial judge fully reviewed the appellant’s own testimony of his reasons for participating in the disposal of the bodies, including his evidence that he was in shock, that he had no way to explain to the authorities what had happened and did not know what else to do. Defence counsel did not object to the charge to the jury with respect to the use of post-offence conduct. Counsel for the appellant, who argued this ground of appeal and was not counsel at trial, properly conceded that in one respect at least the charge was unduly favourable to the appellant. The trial judge told the jury that they could only use the evidence about disposal of the bodies if they were satisfied “beyond a reasonable doubt” that the appellant disposed of the bodies for the purpose of negating his claim of self-defence and for no other reason. The application of the reasonable doubt standard to this piece of circumstantial evidence was an error in favour of the appellant. See R. v. White (1998), 125 C.C.C. (3d) 385 (S.C.C.) at para. 53 – 58.
(vii) Misdirection on reasonable doubt
[59] The appellant submits that the trial judge misdirected the jury with respect to the definition of reasonable doubt by failing to instruct the jury that a reasonable doubt may be based on the absence of evidence. The appellant submits that this error was important in this case because it was the defence position that without McRae’s evidence, which the jury should reject as being unreliable, there was no evidence upon which the appellant could be convicted beyond a reasonable doubt.
[60] The charge to the jury in this case substantially complied with the dictates of R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.). The omission of the absence of evidence direction was not significant in this case. This case was not about gaps in the prosecution case where the failure to give this direction might be important. The case turned on whether the large body of circumstantial evidence together with McRae’s evidence showed that the appellant did not act in self-defence in killing Mr. Barrett and then executed Ms. Lopez. The most important issues for the jury were whether to believe McRae and whether the appellant’s testimony raised a reasonable doubt. The trial judge gave a complete direction concerning the application of reasonable doubt to credibility in accordance with R. v. W. (D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.). It is simply unrealistic to believe that if the jury decided to reject McRae’s evidence they would nevertheless have convicted the appellant because they did not realize the impact of that decision on the Crown’s case.
(viii) Misdirection on self-defence
[61] The appellant submits that the trial judge erred in failing to instruct the jury that the appellant’s mental disorder was relevant to his claim of self-defence. The appellant testified that he suffered from bipolar disorder and had been taking medication for that condition. He lead no medical evidence about this condition and did not testify that he was under the influence of this condition at the time of the alleged attack by Mr. Barrett. No objection was taken to this direction at trial. There is no air of reality to the claim that the appellant’s mental illness was relevant to his self-defence claim.
Disposition
[62] Accordingly, I would dismiss the appeal.
Signed: “M. Rosenberg J.A.”
“I agree Janet Simmons J.A.”
“I agree Langdon J.”
RELEASED: SEPTEMBER 17, 2003