Her Majesty the Queen v. Kinkead

[Indexed as: R. v. Kinkead]

67 O.R. (3d) 57 [2003] O.J. No. 3480 Docket No. C34162

Court of Appeal for Ontario Charron, Feldman and Simmons JJ.A. September 12, 2003

Charter of Rights and Freedoms -- Self-incrimination -- Accused charged with first degree murder -- Accused subpoenaed to testify at trial of co-accused -- Accused implicating co-accused and providing innocent explanation for his own presence at murder scene -- Before deciding whether to testify at his own trial accused seeking advance ruling precluding Crown from using his compelled testimony at trial of co-accused to test his credibility in cross-examination -- Trial judge not erring in ruling that Crown could use accused's compelled testimony to cross-examine accused regarding his credibility -- Accused's compelled testimony at R's trial not incriminating when given -- Accused's failure to testify or to disclose substance of proposed testimony at trial or by way of fresh evidence on appeal precluding success on point -- Canadian Charter of Rights and Freedoms, s. 13.

Criminal law -- Evidence -- Admissibility of evidence -- Bad character of accused -- Accused and his cousin R charged with murdering R's former girlfriend and her sister -- Trial judge not erring in admitting discreditable conduct evidence in form of evidence that accused always carried knife and that he had threatened female with it in R's presence -- Evidence relevant to life issues at trial and potential prejudice minimal -- Otherwise admissible evidence not rendered inadmissible because probative value arises from propensity reasoning -- Appeal from conviction dismissed.

Criminal law -- Mistrial -- Accused charged with two counts of murder -- Trial judge not erring in denying defence request for mistrial when accused's previous murder conviction was referred to in media during trial.

Criminal law -- Trial -- Charge to jury -- Consciousness of guilt (after the fact conduct) -- Accused and cousin charged with first degree murder -- Planned and deliberate murder -- Two men together very frequently before offence followed by hiatus in meetings after offence then two clandestine meetings -- No instruction to jury regarding using this evidence as consciousness of guilt and none sought by defence counsel -- Crown counsel only briefly mentioning meetings in closing address -- Absence of instruction on consciousness of guilt neutral to accused -- Trial judge providing an adequate instruction to jury that conduct may reflect a plan and thereby constitute evidence that the murder was planned and deliberate -- Appeal from conviction for first degree murder dismissed.

The accused and his cousin and close friend, R, were charged with the first degree murder of R's former girlfriend M and her sister. The accused became a suspect when DNA analysis linked the person responsible for two sexual assaults and the murder of a TTC collector to the male DNA found under M's fingernails. The accused was arrested for those offences and subsequently pleaded guilty to two counts of aggravated sexual assault and to the murder of the TTC collector. The accused and R were tried separately. The accused was subpoenaed to testify at R's trial. He blamed the murders on R and exculpated himself, providing an innocent explanation for his presence at the scene of the crime. R was convicted. Before deciding whether or not to testify at his own trial, the accused sought an advance ruling precluding the Crown from using his compelled testimony at R's trial to test his credibility in cross-examination, relying on ss. 7 and 13 of the Canadian Charter of Rights and Freedoms. The trial judge ruled that the accused could be cross-examined on his prior testimony for the purposes set out in Kuldip, namely, to impeach his credibility. The accused did not testify.

After the completion of several days of evidence at trial, reports appeared in the media which mentioned that the accused had pleaded guilty to the murder of the TTC collector. The defence requested a mistrial on the basis that it was likely that at least some of the jurors might have learned inadvertently of the accused's murder conviction. The trial judge denied the request. He concluded that the jury would be able to set aside anything they may have heard about the murder conviction. In particular, he noted that the defence had challenged prospective jurors for cause based on pre-trial publicity and that all of the jurors had been accepted by the triers. The trial judge instructed the jury not to discuss anything they may have seen or heard, reminded them of their oath to decide the case based solely on the evidence adduced at trial and told them to disregard anything they may have seen or heard. He instructed them to ignore any future stories that they might see.

The accused was convicted of first degree murder. He appealed.

Held, the appeal should be dismissed.

The trial judge did not err in denying the defence request for a mistrial. The trial judge was satisfied that the jurors who were exposed to the story could set aside anything they may have heard. The trial judge was in the best position to assess the impact of the publicity in the context of the issues and evidence that had been presented at trial. The trial judge gave the jury a clear sharp warning that was appropriate in the circumstances. Because not all of the jurors had learned of the accused's previous murder conviction, it was necessary that the trial judge walk a fine line between cautioning those who had to disregard it, and not drawing unnecessary attention to the problem for those who had not.

The trial judge did not err in admitting discreditable conduct evidence in the form of evidence that the accused always carried a knife and that he had threatened a former girlfriend with a knife in the presence of R. That evidence was relevant to life issues at trial. The trial judge correctly identified possession of the murder weapon and the possible motive for K's presence at the victims' home as the issues at the trial to which the impugned evidence was relevant. In the event the jury were to find that the accused was present in the home at the time of the murders, evidence that he was in the habit of carrying a knife similar to the murder weapon(s) would have some probative value on the issue of whether he possessed or supplied the murder weapon. Further, the fact that R was present when the accused used a knife to threaten the accused's girlfriend (and was therefore aware of the accused's potential for violent behaviour) added some credence to the likelihood that R recruited the accused to assist him in committing murder and therefore to the likelihood that, if K was present at the murder scene, it was not for an innocent purpose but rather because R had recruited him. Where discreditable conduct evidence is relevant to and probative of specific inferences arising relating to life issues at the trial, the fact that the probative value of the evidence arises from propensity reasoning does not, in itself, make the evidence inadmissible.

An accused's previous testimony may only be used for impeachment purposes at a subsequent trial where the trial judge is satisfied that there is no realistic danger that the accused's prior testimony could be used to incriminate him. There is a distinction between prior testimony that was incriminating at the time it was given and prior testimony that was innocuous at the time it was given. Prior testimony that was innocuous at the time it was given does not give rise to the same concerns as testimony for misuse by the jury as evidence which was incriminating when it was given. Although it must meet the same threshold for admissibility, clearly the evidence must be examined in context to determine whether it falls within the parameters of R. v. Kuldip. The accused's prior testimony was not incriminating when given, and therefore did not fall within the class of prior testimony with respect to which cross-examination will likely be prohibited. Moreover, with respect to evidence that was not incriminating at the time it was given, a decision concerning whether cross-examination will be permitted should only be made based on an accused person's testimony, or anticipated testimony, and not, on appeal, based on the closing submissions of an accused person who does not testify. The accused did not provide the trial judge with any indication of the content of his anticipated evidence, nor did he attempt to adduce fresh evidence on appeal setting out his proposed evidence. If the accused had testified at trial that he was not at the victims' house on the day of the murder, using his testimony from R's trial to contradict him on that issue would have violated s. 13 of the Charter. However, the fact that the accused ultimately took the position, in closing submissions, that the Crown had not established that he was at the victims' residence did not mean that he would have testified to that effect. Requiring the accused to reveal the substance of his intended testimony does not violate the right to silence. As the accused was seeking an advance ruling, he bore the onus of demonstrating that he was entitled to the relief that he sought, and therefore the tactical burden of disclosing his proposed testimony to permit a proper decision to be made.

The trial judge did not err in his instructions to the jury concerning evidence of post-offence conduct. Despite their previous closeness, the accused and R apparently had no contact for several months after the murders and then met and embraced in a public park. The accused went to Florida with a girlfriend after that. The trial judge did not instruct the jury on whether the post-offence conduct could give rise to an inference of consciousness of guilt. Rather, he told the jury that they could use the impugned evidence in relation to the issue of planning and deliberation. The trial judge's failure to instruct the jury on the issue of consciousness of guilt, rather than being prejudicial, was at least neutral and may have inured to the accused's benefit. It was unlikely that the jury would have used the evidence of the accused going to Florida, standing alone, to draw an inference of consciousness of guilt based on post-offence flight. While it may have been preferable for the trial judge to have instructed the jury explicitly that they could only use the impugned evidence as evidence of planning and deliberation if they were satisfied that it was part of a plan preceding the murders, that requirement was implicit in the trial judge's instruction that the evidence was relevant to the issues of planning and deliberation.

R. v. Kuldip, 1990 64 (SCC), [1990] 3 S.C.R. 618, 43 O.A.C. 340, 114 N.R. 284, 1990 64 (SCC), 1 C.R.R. (2d) 110, 61 C.C.C. (3d) 385, 1 C.R. (4th) 285; R. v. Noël, [2002] 3 S.C.R. 433, 2002 SCC 67, 218 D.L.R. (4th) 385, 2002 SCC 67, 295 N.R. 1, 99 C.R.R. (2d) 1, 168 C.C.C. (3d) 193, 5 C.R. (5th) 1, 2002 SCC 67, [2002] S.C.J. No. 68 (QL); R. v. Underwood (1997), 1998 839 (SCC), [1998] 1 S.C.R. 77, 67 Alta. L.R. (3d) 81, 155 D.L.R. (4th) 13, 1998 839 (SCC), 221 N.R. 161, [1999] 4 W.W.R. 326, 48 C.R.R. (2d) 205, 121 C.C.C. (3d) 117, 1998 839 (SCC), 12 C.R. (5th) 241, consd

Other cases referred to

R. v. Afghanzada (2000), 2000 16953 (ON CA), 149 C.C.C. (3d) 349 (Ont. C.A.); R. v. Allen, 2003 SCC 18, 225 Nfld. & P.E.I.R. 1, 302 N.R. 62, 672 A.P.R. 1, 2003 SCC 18, 172 C.C.C. (3d) 449, 10 C.R. (6th) 6; R. v. Budai (2001), 2001 BCCA 349, 154 C.C.C. (3d) 289 (B.C.C.A.); R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, 28 B.C.L.R. (2d) 145, 85 N.R. 81, 1988 80 (SCC), [1988] 4 W.W.R. 481, 34 C.R.R. 54, 41 C.C.C. (3d) 385, 64 C.R. (3d) 1; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, 2002 SCC 56, 2002 SCC 56, 213 D.L.R. (4th) 385, 290 N.R. 1, 164 C.C.C. (3d) 481, 2002 SCC 56, 1 C.R. (6th) 203, [2002] S.C.J. No. 57 (QL) (sub nom. R. v. H. (J.)); R. v. Hertrich, Stewart and Skinner (1982), 137 D.L.R. (3d) 400, 1982 3307 (ON CA), 67 C.C.C. (2d) 510 (Ont. C.A.); R. v. Parsons (1993), 1993 3428 (ON CA), 15 O.R. (3d) 1, 17 C.R.R. (2d) 104, 84 C.C.C. (3d) 226, 1993 3428 (ON CA), 24 C.R. (4th) 112 (C.A.)

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 7, 13

APPEAL from a conviction for first degree murder.

Paul Burstein and Gregory Lafontaine, for appellant. Michael Bernstein, for respondent.

The judgment of the court was delivered by

SIMMONS J.A.: --

I. OVERVIEW

[1] Nineteen-year-old Marsha Ottey planned to leave Toronto on August 18, 1995, and travel to Arkansas State University where she had earned a full track and field scholarship. Tragically, on the morning of August 16, 1995, Marsha and her 16-year-old sister, Tamara, were brutally stabbed to death in the basement of their Scarborough home.

[2] Soon after the killings, police identified Marsha's former boyfriend, Rohan Ranger, as a potential suspect. The appellant, Adrian Kinkead, and Ranger were cousins and close friends. In early 1997, following the discovery of DNA evidence potentially linking Kinkead to Marsha's slaying, Ranger and Kinkead were both charged with two counts of first-degree murder.

[3] The two men were tried separately. Ranger's trial proceeded first, and the Crown subpoenaed Kinkead to testify. In his evidence at Ranger's trial, Kinkead exculpated himself and implicated Ranger. In June 1998, Ranger was convicted of the first-degree murder of Marsha and the manslaughter of Tamara.

[4] Kinkead's trial began on April 12, 1999 before LaForme J., sitting with a jury. Kinkead did not testify or call other defence evidence. On June 30, 1999, the jury convicted Kinkead of two counts of first-degree murder. He was sentenced to life imprisonment without parole eligibility for 25 years.

[5] Both Ranger and Kinkead appealed their convictions. This court heard their appeals sequentially. This judgment deals with Kinkead's appeal only. My colleague, Charron J.A., has prepared a separate judgment dealing with the Ranger appeal [^1].

[6] Kinkead claims that he was denied the right to a fair trial because of four errors [^2] made by the trial judge:

(i) the trial judge failed to cure the prejudicial effect of mid-trial publicity concerning Kinkead's prior unrelated murder conviction;

(ii) the trial judge erred by admitting evidence that Kinkead had, in the past, carried a knife, and that, on one occasion, in Ranger's presence, Kinkead had threatened an acquaintance with a knife; in addition, the trial judge exacerbated this error by failing to give the jury proper instructions concerning the use of this evidence;

(iii) the trial judge erred by ruling that the Crown could use Kinkead's compelled testimony at Ranger's trial for purposes of cross-examination; and

(iv) the trial judge erred in his instructions to the jury concerning certain evidence of post-offence conduct.

[7] For the reasons that follow, I would dismiss the appeal.

II. BACKGROUND

[8] I will outline the background facts relating to the appeal generally and then deal with the facts relating to the individual grounds of appeal when considering them.

(i) Marsha's Relationship with Ranger

[9] Marsha and Ranger began dating in 1990 while Marsha was still in high school. In the late summer or early fall of 1994, Marsha grew tired of Ranger's domineering and obsessively jealous behaviour and ended their relationship.

[10] Ranger was unhappy with the break-up and continued to contact Marsha against her wishes. Between November 1994 and July 1995, he telephoned the Ottey home on 144 occasions. In addition, he sometimes followed Marsha and appeared unexpectedly at places where Marsha happened to be.

[11] For a number of years before her death, Marsha was planning to attend university in the United States. Ranger was displeased about Marsha's plan. On one occasion, in the spring of 1994, Ranger threatened to kill Marsha if she ever left Canada to study in the United States.

[12] Marsha's mother, Avis Ottey, testified that she saw Marsha and Ranger together for the last time about two weeks before Marsha was scheduled to leave for Arkansas. Marsha and Ranger went to the basement of her home to talk. Mrs. Ottey heard Marsha say"I'm not changing my mind." Ranger then stormed out of the house.

[13] On the Monday before she died, Marsha told one of her girlfriends that Ranger had said that if he could not have her "no one else can". Just before her death, Marsha told her mother"[i]f anything happens to me, it's Rohan."

(ii) Rohan Ranger and Adrian Kinkead

[14] Ranger and Kinkead are first cousins once removed. A former girlfriend of Kinkead testified that the two men were extremely close and that they were together all of the time. The Crown relied on evidence that, between May and July of 1995, Ranger telephoned Kinkead at his girlfriend's home on 109 occasions as evidence of planning and deliberation.

(iii) The Days Leading Up to the Murders

[15] Witnesses saw a young black man crouching or loitering in a walkway directly across from the Ottey home between 7:10 a.m. and 7:35 a.m. on August 14 and 15, 1995. Two of the witnesses saw a young black man on August 14, 1995; all five of them saw a young black man on August 15, 1995, the day before the murders.

[16] One of the witnesses selected two pictures from a photographic line-up and said that they resembled the man he saw on August 15. He said that he was 80-90 per cent sure that one of the photographs depicted the man that he saw. That photograph depicted Ranger.

(iv) The Morning of the Murder

[17] On the morning of August 16, 1995, Mrs. Ottey left for work at 7:01 a.m. Marsha and Tamara were still at home, but Tamara was getting ready to catch a bus to go to work.

[18] At around 7:15 or 7:20 a.m., two witnesses saw Tamara with a young black man. They said that the man had his arm around Tamara and that he was pulling her into his shoulder as they walked toward the Ottey home.

[19] The witness who identified Ranger's photograph said that, at around 7:30 a.m. on August 16, 1995, he saw the same man in the walkway dressed in black.

(v) The Discovery of the Bodies

[20] Avis Ottey returned home from work shortly after 5:20 p.m. on August 16, 1995. She found the door to her house unlocked and the house in disarray. She discovered Marsha's body in the basement. She tried to call for help but the telephone line was dead. She went to a neighbour's home and called 911. Emergency personnel found the bodies of both young women in the basement. Full rigor mortis had set in and the blood was brown and drying, indicating that some time had passed since the murders.

(vi) Evidence that the Crime Scene was Staged

[21] Both Mrs. Ottey and the emergency personnel testified that the house was ransacked. However, the only items that Mrs. Ottey ever determined were missing were a gold necklace Marsha usually wore around her neck that Ranger had given to her, Marsha's electronic organizer and a video of Marsha playing soccer [^3].

[22] At trial, the Crown called evidence indicating that the crime scene appeared to have been staged to look like a burglary. The identification officer, Detective Ian Mann, noted that many items that are often attractive to burglars remained in the house. In addition, Detective Inspector Kathryn Lines was qualified to give opinion evidence relating to "criminal investigative analysis involving staging behaviour". She gave evidence similar to Mann's and said that it appeared as if a number of items in the house had been moved but that the perpetrator(s) had no real interest in taking them.

[23] Lines also testified that staging is used for one of two reasons"to redirect the investigation away from the most logical suspect or to protect the victim". She said that"[when] a crime is staged . . . it is almost always someone who has had some kind of association or relationship with the victim". In this instance, Lines said that the perpetrator appeared to have a particular interest in Marsha's possessions.

[24] Ranger raised Lines' evidence at his trial as one of his primary grounds of appeal. My colleague, Charron J.A., deals with Lines' evidence extensively in her reasons relating to Ranger's appeal.

[25] However, it is unnecessary for me to address Lines' evidence in this judgment for three reasons. First, because Ranger had a relationship with Marsha, the staging evidence incriminated Ranger, rather than Kinkead. Second, at trial, Kinkead admitted that Ranger was convicted of the first-degree murder of Marsha and the manslaughter of Tamara. Accordingly, evidence implicating Ranger was not inconsistent with the position Kinkead was taking. Third, Kinkead did not object to Lines' evidence at trial nor rely on her evidence as a ground of appeal.

[26] In the circumstances, I will not deal with Lines' evidence when setting out my analysis of Kinkead's grounds of appeal.

(vii) Forensic Evidence Relating to the Number of Attackers

[27] The examining pathologist was unable to exclude the possibility that there was only one assailant and only one murder weapon. However, she described specific defence hypotheses involving a single killer as "unlikely" and "a bit of a stretch".

(viii) The Murder Weapon

[28] Following the murders, two pieces of a knife hilt were found in the Ottey home. An expert in the identification of knives testified that the knife hilt pieces were very specific to a particular type of knife, namely, a medium-sized, lock-back, folding knife with a single-edged straight blade. He agreed that five to ten thousand knives of that type might have been sold in Toronto.

[29] The examining pathologist confirmed that a knife like the one described by the knife expert could have caused the young women's injuries.

(ix) The Investigation of Kinkead

[30] Although he was known as an associate of Ranger early in the investigation, Kinkead was not a serious suspect as the police were unable to place him at the murder scene, or even in the city, at the time of the killings. Kinkead's fingerprints were tested but came back negative.

(x) DNA Evidence

(a) The discovery of evidence leading to Kinkead's arrest

[31] Post-mortem examination of Marsha's body revealed DNA under her fingernails from two other people, a man, and a woman. On December 21, 1995, DNA analysis linked the person responsible for three recent crimes at the Victoria Park subway station to the male DNA found under Marsha's fingernails.

[32] As a result of further investigation, police arrested Kinkead, obtained a sample of his blood, and submitted the sample for testing. In July 1997, Kinkead pleaded guilty to two counts of aggravated sexual assault in relation to two separate incidents that occurred in early September 1995 at the Victoria Park subway station, and to the October 23, 1995 slaying of TTC collector Dimitrija Trajceski.

(b) DNA evidence at Kinkead's trial

[33] Pamela Newall testified at Kinkead's trial as an expert in DNA analysis. She confirmed that DNA from two other people was found under Marsha's fingernails and said that Kinkead could not be excluded as the source of the male DNA. In addition, although he could not be identified conclusively as the source of that DNA, she opined that one would not expect to see another black male in Canada who fit the observed characteristics. Finally, Newall testified that the female DNA found under Marsha's fingernails was consistent with Tamara's profile.

[34] During her evidence, the examining pathologist acknowledged that foreign DNA under the fingernails of one of the victims would not necessarily be from the killer.

(xi) Kinkead's Position at his Trial

[35] At his trial, counsel for Kinkead (not Mr. Burstein or Mr. Lafontaine) admitted that Ranger had been convicted of murder and manslaughter in relation to the killings. In addition, counsel admitted that Kinkead had testified at Ranger's trial and that his testimony "implied that . . . Ranger was the sole killer of both Marsha and Tamara".

[36] Kinkead did not testify or call other defence evidence. In their closing to the jury, Kinkead's counsel attacked the forensic evidence and asserted that the Crown had failed to prove the elements of the offences beyond a reasonable doubt.

III. ANALYSIS

(i) Did the Trial Judge Err by Failing to Cure the Prejudicial Effect of Mid-Trial Publicity Concerning Kinkead's Previous Murder Conviction?

(a) Background

[37] On May 25, 1999, defence counsel requested a mistrial arising from the following events.

[38] Commencing on Sunday May 23, 1999, after the completion of several days of evidence, various media began reporting that a warrant had been issued for the arrest of defence lawyer Kadir Baksh on child abduction charges. Some of the stories mentioned that Baksh had acted for Kinkead, who was sentenced to life imprisonment for the October 23, 1995 murder of TTC collector Dimitrija Trajceski. At least one story indicated that Kinkead had pleaded guilty to that charge and that he was still facing murder charges in relation to the Ottey killings.

[39] Defence counsel submitted that it was likely that at least some of the jurors may have learned inadvertently of Kinkead's murder conviction. Counsel said that he could not think of an instruction that would deal with the situation adequately because instructing the jury to disregard what they may have heard would serve only to underline it. He claimed that, as a result, there was no option but to declare a mistrial.

[40] After hearing submissions, the trial judge decided to ask the jurors individually whether they had seen or heard anything about "a lawyer by the name of Mr. Baksh who is . . . alleged to have taken a child from its mother's residence". Six jurors responded that they had heard something about the story. Based on their expressions and their responses, the trial judge concluded that at least two or three of those six jurors were likely aware of the appellant's prior murder conviction [^4].

[41] After further submissions, the trial judge denied the request for a mistrial. He concluded that the jury would be able to set aside anything they may have heard about the murder conviction. In particular, he noted that the defence had challenged prospective jurors for cause based on pre-trial publicity and that all of the jurors had been accepted by the triers.

[42] Following his ruling, the trial judge gave the jury a three-part instruction. He instructed the jury not to discuss anything that they may have seen or heard; he reminded them of their oath to decide the case based solely on the evidence adduced at trial and told them to disregard anything that they may have seen or heard; and he instructed them to ignore any future stories that they might see concerning Mr. Baksh or the missing child.

[43] In particular, the trial judge said the following in the second part of his instruction:

The second thing I am going to ask you to do is what you have already sworn to do, and I guess basically I just want to remind you that whatever it was you heard or read, you are to disregard it. You are to banish it from your mind and do what I know each and every one of you are going to do and honour your oath, and that is, you are going to decide the guilt or innocence of Mr. Kinkead based solely on the evidence you are going to hear at this trial, and I know that you are going to do that.

[44] On June 2, 1999, after a further newspaper article referred to Kinkead's murder conviction under the headline"Daughter pleads with father sought in kidnapping", the defence renewed its request for a mistrial. Once again, counsel submitted that it was possible that some of the jurors may have learned inadvertently of Kinkead's prior murder conviction. Relying on his previous reasons, the trial judge denied the renewed request for a mistrial.

(b) Kinkead's submissions

[45] While acknowledging that the trial judge's decision to caution the jury about the mid-trial publicity rather than declaring a mistrial involves the exercise of discretion, Kinkead submits that the trial judge erred in the exercise of his discretion in at least three respects.

[46] First, he says that the trial judge prejudged the issue of whether there should be a mistrial. Kinkead relies on a question that the trial judge asked defence counsel prior to questioning the jury, namely"[w]hat's the remedy outside of a mistrial". In addition, he relies on comments the trial judge made between questioning the second and third jurors:

My sense is that I would like to be able to give them an instruction, if we can agree on that at the end and if that's the best result and the way to proceed, that applies to all of them and to avoid any kind of mention of . . .

Kinkead submits that the trial judge's question to counsel and his subsequent comments demonstrate that the trial judge had made up his mind about whether to declare a mistrial prior to hearing submissions.

[47] Second, Kinkead submits that the trial judge failed to focus on the real issue when questioning the jurors and therefore failed to conduct a proper inquiry. In particular, he submits that, having determined that at least two or three jurors had learned of his previous murder conviction, at a minimum, the trial judge was obliged to make further inquiries to determine whether those jurors could decide the case based solely on the evidence adduced at trial.

[48] Kinkead relies on authorities such as R. v. Budai [^5] and this court's decisions in R. v. Afghanzada [^6] and R. v. Hertrich [^7] in support of the dual proposition that the threshold for triggering an investigation is low and that the trial judge's duty is to "investigate . . . by personally examining the juror" to determine whether the juror's partiality has been affected. [^8] In addition, he analogizes to the challenge for cause procedure. He submits that the trial judge's conclusion that at least two to three jurors had learned of the murder conviction amounted to a determination that there was a realistic potential for partiality, and that such a finding mandates further inquiries.

[49] Alternatively, Kinkead says that, absent specific confirmation that the jurors could set aside what they had heard, the nature of the prejudice arising from the media reports required that the trial judge declare a mistrial. In particular, he says that the trial judge's subsequent Corbett [^9] ruling demonstrates the incurable nature of the prejudice. In his ruling, the trial judge said"I have no doubt that its [Kinkead's previous murder conviction] prejudice in this case would certainly outweigh any of the probative value which I have articulated."

[50] Third, Kinkead says that the instruction given by the trial judge was deficient because it was not specific enough. Here, he submits that the trial judge failed to specifically instruct the jury to disregard anything that they may have heard about him.

(c) Discussion concerning whether the trial judge failed to cure the prejudicial effect of mid-trial publicity about Kinkead's previous murder conviction

[51] I reject Kinkead's contentions.

[52] First, I find no merit in the submission that the trial judge prejudged the issue of whether to declare a mistrial.

[53] Not surprisingly, the trial judge decided on the steps to be taken during the course of an ongoing colloquy with counsel. It is customary, during submissions, that a trial judge will alert counsel to the options that he may be considering and to the portions of counsel's argument that are causing him concern. In my view, the trial judge's question about the availability of a remedy other than a mistrial was nothing more than a part of the colloquy, which involved identifying and assessing the available courses of action. Further, when the trial judge remarked that he would like to be able to give the jury an instruction, he qualified his comment by saying"if we can agree on that and if that's the best result and the way to proceed" (emphasis added). Particularly in light of the qualification, I see no basis for finding that the trial judge prejudged the issue of whether to declare a mistrial. Significantly, defence counsel at trial did not raise an objection similar to that which has been raised on appeal.

[54] Second, I do not agree with the suggestion that the trial judge failed to focus on the real issue or that the circumstances made either additional inquiries or a mistrial mandatory.

[55] The trial judge's conclusion as set out in his ruling was that he was satisfied that the jurors could set aside anything they may have heard. That is the precise issue that he was required to determine.

[56] Further, the issue in this case is distinguishable from the issues that arose in the authorities upon which Kinkead relies. Here, the circumstances did not involve investigating the possibility or effects of juror tampering, nor did they involve assessing whether prospective jurors could abide by an oath. This jury had already been sworn. The circumstances were more akin to the situation presented by the inadvertent admission of inadmissible evidence.

[57] Where inadmissible evidence is inadvertently admitted, the trial judge does not question the jurors to assess whether they can disregard the inadmissible evidence; rather, he makes that determination as a matter of common sense, taking account of all of the events that have taken place and his observations of the jury. In this case, the trial judge adopted the same approach.

[58] In my view, the trial judge directed his mind to the correct issue and took appropriate steps to assess what the remedy should be. The trial judge noted that some of the jurors may well have heard of the appellant's criminal history before the trial, that they were challenged for cause on the ground of pre-trial publicity, and that they had been accepted by the triers as being capable of setting aside what they had heard. Moreover, he had been observing the jury since they were selected and he had the opportunity to observe their expressions and responses when he questioned them.

[59] The trial judge was in the best position to assess the impact of the publicity in the context of the issues and evidence that had been presented at trial. In the end, he concluded that this jury could continue to abide by their oaths, set aside any information they had heard before or during the trial, and act as impartial triers. Without excluding the possibility that the trial judge could have made further inquiries in a manner that would not have contaminated the jury, I see no basis for holding that the approach that he adopted amounts to reversible error.

[60] Finally, I do not consider that the trial judge's ruling on the Corbett application is inconsistent with his decision not to declare a mistrial nor that there is any other basis for this court to conclude that the prejudice arising from the mid-trial publicity was incurable.

[61] Contrary to Kinkead's submissions, the trial judge's Corbett ruling does not reflect a finding that Kinkead's prior murder conviction was incurably prejudicial. The decision on a Corbett application involves determining whether the probative value of otherwise admissible evidence (i.e. evidence of an accused person's criminal record) outweighs its potential prejudice (i.e. the likelihood that the jury will use the evidence for an improper purpose). Here, the trial judge ruled that the Crown was entitled to cross-examine Kinkead concerning several other convictions involving serious criminal conduct [^10]. In effect, he determined that Kinkead's credibility could be properly assessed without the murder conviction. Rather than a finding that knowledge of the murder conviction would create incurable prejudice to Kinkead, the trial judge's Corbett ruling reflects the appropriate balancing of probative value versus potential prejudice.

[62] Moreover, the trial judge was satisfied that, despite the mid-trial publicity, the jury would decide this case based solely on the evidence adduced at trial. It is implicit in his ruling that he determined that the mid-trial publicity was not incurably prejudicial. The fact that he subsequently decided that it was unnecessary to risk the possibility that the jury would misuse admissible evidence of the murder conviction, does not undermine the correctness of his original determination. I see no other basis for concluding that the trial judge erred in his original assessment of the prejudicial effect of the mid-trial publicity.

[63] Third, in my view, the trial judge gave the jury a clear sharp warning that was appropriate in the circumstances. Because not all of the jurors had learned of Kinkead's previous murder conviction, it was necessary that the trial judge walk a fine line between cautioning those who had, to disregard it; and not drawing unnecessary attention to the problem, for those who had not. I see no basis for concluding that the trial judge's instruction was not specific enough. It would have been obvious to any juror who had learned of Kinkead's prior conviction that the trial judge's instruction was directed to that aspect of the mid-trial publicity. My conclusion is reinforced by the fact that defence counsel at trial did not object to the instructions that were given or request that they be clarified.

[64] Accordingly, I would not give effect to this ground of appeal.

(ii) Did the Trial Judge Err by Admitting the Discreditable Conduct Evidence and by Failing to Give the Jury Proper Instructions Concerning the Use of Such Evidence?

(a) The evidence of discreditable conduct

[65] Mindy Daniel, a former girlfriend of Kinkead, testified about his habit, in the past, of carrying a knife. She said that in 1993, Kinkead had a "folding knife . . . silver blade, black handle. He was sharpening it all the time." She testified that he had this knife during the first six months of their relationship but that "after about six months time he didn't have it anymore". After that, he had one more knife that "was like a kitchen knife. It was kind of big." She said she threw that knife away and that she did not see him with any knife after that. Their relationship ended around April 1995.

[66] Another witness, Melissa Burey, said that she had been a friend of Marsha and Ranger, and an acquaintance of Kinkead. She acknowledged that, at one time, there was an attraction between her and Kinkead and that they had kissed on one occasion. At some point, she no longer wanted anything to do with either Kinkead or Ranger. She described an incident around Christmas 1992, when Kinkead and Ranger came to the school cafeteria. She said that Kinkead tried to talk to her. She told him to leave her alone. While Ranger was present, Kinkead "began to get very upset, he began to start swearing . . . he snapped and then all of a sudden he pulled out a knife from his waist and started to come toward me". She described the balance of the incident as follows:

[Kinkead] takes out the knife and he's running towards me saying, I could kill you. I could kill--you're dead. You're dead. I said"[o]kay, fine" . . . I wasn't planning to move, and my girlfriends, they were saying"[n]o Melissa. He's going to kill you".

She described the knife as having a "black handle . . . about two to four inches long . . . [a]bout two inches wide". She did not know whether it was a folding knife.

(b) The trial judge's ruling on the admissibility of the discreditable conduct evidence

[67] The trial judge articulated three bases for admitting the evidence of Daniel and Burey concerning Kinkead's habit, in the past, of carrying a knife and concerning the death threat incident: first, to demonstrate the likelihood that Kinkead possessed the necessary "tool" for committing the crime, second, to show Ranger's state of mind, namely that he knew the type of person with whom he was associating, and third, to rebut the defence of innocent association. The trial judge stated his conclusions as follows:

The relevant issues this evidence is said to address in this trial are:

One, that Mr. Kinkead possessed the tool necessary to commit the crime that he is charged with. In this regard, it is said it will assist in showing that he either provided the knife to Rohan Ranger or used it himself in the killings;

Two, the relationship will go to show the state of mind of Ranger; that he was aware of who he was involving himself with in these killings. Further, it will rebut the defence of innocent association . . .

The strength of the evidence, in my view, is quite helpful to supporting the facts in issue; namely, to rebut innocent association and who wielded the knife which, in my view, are highly central issues. Overall, the evidence is not highly discreditable and does not of itself infer guilt based solely on this evidence.

And finally, the evidence will not confuse issues in my mind. Rather, it will assist the jury in clarifying them.

Second, while the evidence may be in some way prejudicial, although I find, if it is, it is minimal, it is far outweighed by its probative value.

And third, given the admissions that the jury has been made aware of, especially that Mr. Kinkead's testimony at the Ranger trial that "implies that Ranger was the sole killer of both Marsha and Tammy", the Crown ought to be and is granted leave to tender this evidence.

I rely on R. v. Parsons, specifically at page 238 for that principle. Remoteness, I find, is not a relevant issue. I agree with the Crown's submission; that is the evidence is more in the nature of habit or tendency rather than one characterized as remote.

(c) Kinkead's submissions concerning the admissibility of the discreditable conduct evidence

[68] While acknowledging that a ruling concerning the admissibility of discreditable conduct evidence involves the exercise of discretion, Kinkead submits that the trial judge erred in principle when weighing the probative value of the discreditable conduct evidence against its potential prejudicial effect. In particular, he claims that the trial judge overestimated the probative value of the impugned evidence and failed entirely to appreciate its significant potential prejudice. In addition, Kinkead submits that the trial judge erred by applying R. v. Parsons [^11] to the circumstances of this case.

[69] As a starting point, Kinkead contends that the impugned evidence had little probative value. He points out that there was evidence before the jury that the murder weapon was a common type of knife. Accordingly, testimony that he once possessed a similar knife, and that Ranger was aware of this, contributed little to proving that he was carrying such a knife on the day of the murders. Similarly, Kinkead contends that evidence that he experienced violent rage as the result of a relatively minor incident added little to proving that he would commit a planned and deliberate murder.

[70] More significantly, Kinkead submits that the trial judge failed to recognize that the inferences that the Crown argued should be drawn from the discreditable conduct evidence required impermissible propensity reasoning. Kinkead contends that Daniel's evidence suggested that he was pathologically obsessed with knives, and that the real purpose of her evidence was to suggest that he was a dangerous man, and therefore the type of person who would bring a knife to the Ottey residence to assist in a murder. Similarly, the suggestion that Ranger recruited him based on his conduct towards Burey required reasoning that Ranger viewed him as a dangerous man. Kinkead submits that the trial judge erred in principle by failing to recognize the impermissible reasoning inherent in the proposed use of the evidence and the significant prejudice arising from such use.

[71] As for the Parsons issue, Kinkead submits that that decision does not apply to this case because he did not call evidence putting his character in issue.

(d) Discussion regarding the admissibility of the discreditable conduct evidence

[72] I do not accept Kinkead's submissions.

[73] In my view, they ignore the basic premise that discreditable conduct evidence is, by its very nature, propensity evidence, and that prejudice arises, not from its use as such, but from its lack of cogency in particular circumstances.

[74] In R. v. Handy [^12], Binnie J. explained the essential character of discreditable conduct evidence as follows:

It is occasionally suggested that once the similar fact evidence is related to an issue other than "mere" disposition, it somehow ceases to be propensity evidence. I do not think this is true.

One of the virtues of B. (C.R.) is its candid acknowledgment that "evidence of propensity, while generally inadmissible, may exceptionally be admitted" (p. 732) to help establish that the accused did or did not do the act in question (at pp. 731-32):

While the language of some of the assertions of the exclusionary rule admittedly might be taken to suggest that mere disposition evidence can never be admissible, the preponderant view prevailing in Canada is the view taken by the majority in Boardman -- evidence of propensity, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury. [Emphasis in original]

In other words, while identification of the issue defines the precise purpose for which the evidence is proffered, it does not (and cannot) change the inherent nature of the propensity evidence, which must be recognized for what it is. By affirming its true character, in my view, the Court keeps front and centre its dangerous potential.

I refer again to Arp, supra, where Cory J., for the Court, reaffirmed the proposition that in exceptional circumstances propensity evidence is admissible, at para. 40 [emphasis in original]:

Thus evidence of propensity or disposition may be relevant to the crime charged, but it is usually inadmissible because its slight probative value is ultimately outweighed by its highly prejudicial effect. [Emphasis added in Handy.]

While Cory J. rested admissibility on the improbability of coincidence (paras. 43 and 45), this does not in my view detract from his recognition that the underlying reasoning was through propensity. When similar facts are attributed to an accused acting "in character", it is the inferred continuity of character and nothing else that displaces what might otherwise be explained innocently as mere "coincidence".

I emphasize the reference in Arp to "usually inadmissible". Cory J. recognized, as did McLachlin J. in B. (C.R.), supra, that disposition evidence could unusually and exceptionally be admitted if it survives the rigours of balancing probative value against prejudice.

[Emphasis in original]

[75] Binnie J. also explained that prejudice relating to the admission of discreditable conduct evidence arises in two forms, namely, moral prejudice ("the potential stigma of 'bad personhood'") and reasoning prejudice ("including potential confusion and distraction of the jury from the actual charge against the respondent") [^13].

[76] In this case, in my view, the trial judge correctly identified possession of the murder weapon and the possible motive for Kinkead's presence at the Ottey home as the issues at the trial to which the impugned evidence was relevant and he did not err in finding that the impugned evidence had some probative value to these issues. In the event the jury were to find that Kinkead was present in the Ottey home at the time of the murders, Daniel's evidence that Kinkead had a habit of carrying a knife similar to the murder weapon(s) would have some probative value on the issue of whether Kinkead possessed or supplied the murder weapon. Further, the fact that Ranger was present when Kinkead used a knife to threaten Burey (and was therefore aware of Kinkead's potential for violent behaviour) added some credence to the likelihood that Ranger recruited Kinkead to assist him in committing murder and therefore to the likelihood that, if Kinkead was present at the murder scene, it was not for an innocent purpose but rather because Ranger had recruited him.

[77] I specifically reject Kinkead's submissions that using the discreditable conduct evidence to draw the inferences requested by the Crown required impermissible reasoning. As was pointed out in Handy, where discreditable conduct evidence is relevant to and probative of specific inferences relating to live issues at the trial, the fact that the probative value of the evidence arises from propensity reasoning does not, in itself, make the evidence inadmissible.

[78] In my view, there can be no real issue that Daniel's evidence was relevant to a live issue at the trial, namely, whether Kinkead possessed or supplied the murder weapon.

[79] As for Burey's evidence, the theory of the Crown was that Ranger had recruited Kinkead to assist him with Marsha's murder. It was admitted that Ranger was involved in the killings and that he (Kinkead) had testified at Ranger's trial in a manner that implied that Ranger was the sole killer. At the point in the trial when the impugned evidence was admitted, Kinkead had mounted a formidable attack on the DNA evidence presented by the Crown potentially linking him to the killings. He had also underlined, in cross-examination of Crown witnesses, Ranger's abusive and threatening conduct towards Marsha. Those factors, combined with Kinkead's admission implying that Ranger was the sole killer, made it likely that Kinkead would assert either that he was not at the Ottey home at the time of the killings, or, if he was at the Ottey home, that he was there for an innocent purpose. The likelihood that Ranger recruited Kinkead to assist him in committing murder was relevant to both issues and therefore, was very much a live issue at the trial.

[80] Moreover, I reject Kinkead's suggestion that the impugned evidence carried significant potential prejudice. The risk of reasoning prejudice was minimal. The evidence was straightforward and unlikely to confuse the jury or consume an inordinate amount of time.

[81] The risk of moral prejudice was also limited. As noted by the trial judge, none of the impugned evidence was "highly discreditable". In the context of a murder trial, there was little risk that the jury would convict Kinkead to punish him for his past conduct of carrying a knife, sharpening it regularly, and, on one occasion, threatening Burey. Nor, in my view, is it likely that the jury would have used the evidence that Kinkead carried a knife and sharpened it regularly to conclude that he was the type of person who would commit a planned and deliberate murder.

[82] Similarly, it is not likely that the jury would have used Burey's evidence that, on one occasion, Kinkead "snapped", threatened her with a knife, and then subsequently apologized, standing on its own, to draw that inference. Rather, the probative force of the discreditable conduct evidence arose from Kinkead's connection to Ranger, from Ranger's presence during the incident that Burey described, and from the likelihood that, if Kinkead was at the house, it was because Ranger had recruited him.

[83] The trial judge made specific findings that the impugned evidence was not highly discreditable and that it did not "of itself infer guilt". He concluded that Daniel's evidence that Kinkead had a habit, in the past, of carrying a knife similar to the murder weapon(s) had sufficient probative value on the issue of whether Kinkead possessed or supplied the murder weapon to justify its admission. The trial judge also concluded that Burey's evidence that Ranger was aware of Kinkead's threatening conduct was sufficiently probative of the specific inference that Ranger recruited Kinkead to warrant its admission. None of these findings is unreasonable.

[84] In the circumstances, I see no basis for second guessing the trial judge's assessment of probative value versus prejudicial effect.

[85] Finally, I am not persuaded that the trial judge's reference to Parsons amounted to an error in principle. As I read his reasons, the trial judge did not permit the Crown to lead evidence of discreditable conduct because he found that Kinkead had placed his character in issue, and therefore had opened the door to the Crown leading character evidence against him in response. Rather, the reference reflected the trial judge's understanding that, in the event the jury found that Kinkead was present at the Ottey home close to the time of the murders, having asserted that Ranger was the killer, Kinkead's position would be that he was there for an innocent purpose. The discreditable conduct evidence bore on the reason for Kinkead's presence and not on his character generally. The trial judge's reference to Parsons dovetailed into his analysis of the relevance of the discreditable conduct evidence. Although perhaps somewhat misplaced, I do not view the reference as being an error in principle.

[86] Absent an error in principle, the trial judge's decision concerning the admissibility of evidence of other discreditable conduct is entitled to deference. In this case, I see no basis for concluding that the trial judge erred in concluding that the probative value of the impugned evidence outweighed its prejudicial effect. I would not give effect to the objection that the discreditable conduct evidence was not admissible.

(e) Kinkead's submissions on the jury instructions about the discreditable conduct evidence

[87] Kinkead submits that the trial judge erred by failing to explain clearly the permissible use of the evidence of other discreditable conduct and thereby exacerbating the risk that the jury would engage in impermissible propensity reasoning.

(f) The jury instructions about the discreditable conduct evidence

[88] The trial judge's jury instructions concerning the evidence of other discreditable conduct included the following:

Now, you will recall that the Crown presented evidence about other incidents allegedly involving Mr. Kinkead. This evidence was admitted for the purpose of assisting the Crown in proving the issues of Rohan Ranger's state of mind, innocent association between Mr. Kinkead and Ranger, and pattern of conduct by Mr. Kinkead . . . You can . . . only use this evidence for the purpose of deciding whether or not the Crown has proved those particular issues.

When examining that evidence, you cannot conclude that Mr. Kinkead is a criminal sort of person and that, therefore, he probably committed the offences charged in the indictment. It is up to you as the judges of the facts to decide whether the Crown has proven beyond a reasonable doubt that Mr. Kinkead did the things described in the evidence. If you are satisfied that the Crown has proven the facts, you will then go on and decide whether you should make the inference that the Crown urges you to make; namely, that Mr. Kinkead is the person who committed the acts in the manner stated in the evidence. This evidence, if you find it to be the case may be used to show that Mr. Kinkead did the things alleged; that he probably committed the offences he is presently being charged for.

You may, however, infer from the evidence, if you believe it, that the characteristics of the offences with which Mr. Kinkead is charged are likely to have been committed by the same person. You may draw that inference or you may not. It is like all other facts and inferences -- it is for you and you alone to decide.

This evidence was put in, as I said, in part, on the issue of Ranger's state of mind prior to the killings. That is, the Crown submits that Ranger knew that Mr. Kinkead was a person, based upon his past, prior conduct, that would assist him in his crimes against Marsha and Tammy Ottey. As well, the Crown asks you to take from this evidence that Mr. Kinkead was not merely an innocent associate while with Ranger in the Ottey residence at the time of the killings. The Crown submits that it assists in proving that Mr. Kinkead was the person who committed the offences he is now standing trial for.

. . . as I said at the outset, you must not, and I emphasize must not, use this evidence to conclude that just because Mr. Kinkead may have done other things that are wrong, he therefore committed the acts giving rise to this trial

. . . you cannot use the evidence of discreditable activities alleged on the part of Mr. Kinkead, if you find that he engaged in them, at arriving at your decision in the charges in the indictment.

(Emphasis added)

(g) Discussion regarding the jury instructions about the discreditable conduct evidence

[89] Although I agree that the trial judge's instructions could have been clearer, I would not give effect to this ground of appeal for three reasons.

[90] First, the emphasized portions of the instructions demonstrate that the trial judge instructed the jury clearly that they must not use the evidence of discreditable conduct to conclude that Kinkead was guilty of murdering Marsha and Tamara because of his past conduct.

[91] Second, I have already concluded that the discreditable conduct evidence did not create a significant risk of prejudice.

[92] Third, the trial judge's instructions concerning how the jury could use the evidence did not steer the jury in the direction of using the evidence for an impermissible purpose. Accordingly, although the jury instructions concerning the proper use of the evidence might have been clearer, I do not consider that the lack of clarity operated in a manner that was prejudicial to Kinkead.

(iii) Did the Trial Judge Err by Ruling that the Crown Could Use Kinkead's Compelled Testimony at Ranger's Trial for Purposes of Cross-Examination?

(a) Background

[93] Before deciding whether to testify, Kinkead asked for an advance ruling precluding the Crown from using his compelled testimony at Ranger's trial to test his credibility in cross-examination.

[94] The gist of Kinkead's evidence at Ranger's trial was that, after planning a surprise outing for Marsha with Tamara (with whom Kinkead claimed he was romantically linked), he went to the Ottey home on the morning of August 16, 1995 to await Ranger's arrival. After Ranger arrived, he and Marsha went to the basement. Shortly thereafter, Kinkead and Tamara heard loud noises coming from the basement. They went downstairs to investigate and saw Ranger sitting on Marsha and holding a knife. Tamara hyperventilated and collapsed. Kinkead tried to calm Ranger down, but Marsha began thrashing and punching, hitting Kinkead as she did so. Kinkead said that he fled after Ranger threatened him with the knife.

[95] The Crown obtained a ruling at Ranger's trial permitting it to treat Kinkead as an adverse witness. Accordingly, in addition to asking questions in the manner of examination-in-chief, the Crown cross-examined Kinkead on the statements he made following his arrest, at least one of which was a confession. In his evidence at Ranger's trial, Kinkead asserted that much of what he said in the statements was untrue, explaining that the police had coerced him and that he told the police what he thought they wanted to hear.

[96] In requesting a ruling precluding the Crown from cross-examining him on this previous testimony, Kinkead relied on both ss. 7 and 13 of the Charter [^14]. He submitted that where an accused person is compelled to testify at the trial of a co-accused, the accused person's right to silence is violated and that the protection afforded by s. 7 operates to exclude the use of what is effectively derivative evidence at the accused person's subsequent trial.

(b) The trial judge's ruling regarding the use of Kinkead's compelled testimony at Ranger's trial

[97] The trial judge ruled that Kinkead could be cross-examined on his prior testimony "if it is appropriate . . . and for the purposes set out in Kuldip". The crux of his ruling is as follows:

Mr. Kinkead's rights arise on this issue exclusively out of s. 13 of the Charter. . . . Kuldip is the leading authority in that regard and for those reasons and the reasons which I may expand upon later, I am satisfied that the Crown can confront Mr. Kinkead with his previous testimony if it is appropriate and if Mr. Kinkead chooses to give evidence in this trial and for the purposes set out in Kuldip; namely, to impeach his credibility.

(c) Kinkead's submissions

[98] The trial judge's ruling preceded the Supreme Court of Canada's decisions in R. v. Noël [^15] and R. v. Allen [^16]. On appeal, Kinkead submits that, although Noël confirms that R. v. Kuldip [^17] is still good law, it circumscribes the application of Kuldip by clarifying that an accused person's previous testimony may only be used for impeachment purposes at a subsequent trial where "the trial judge is satisfied that there is no realistic danger that his prior testimony could be used to incriminate him."

[99] Kinkead submits that the trial judge erred in failing to recognize that his prior testimony could not meet the Noël threshold because of its inherent character as incriminating evidence. He contends that his prior testimony is inherently incriminating because it places him at the murder scene in close proximity to the time of the murders whereas, in his closing to the jury, his counsel asserted that the Crown had not established that he was at the Ottey residence when the murders occurred. As he puts it, the trial judge erred in failing to recognize that the bulk of his prior testimony "was off the table" from the outset.

[100] In addition, Kinkead submits that the trial judge contravened the principles enunciated in R. v. Underwood [^18] when he ruled that the Crown could confront him with his prior testimony "if . . . appropriate". In Underwood, the Supreme Court of Canada held that an accused person is entitled to know if the Crown will be entitled to cross-examine him on his criminal record before he decides whether to call a defence. Here, Kinkead contends that the trial judge erred by forcing him to decide whether to testify before the trial judge made a definitive ruling concerning whether his prior testimony could be used for purposes of cross-examination.

(d) Discussion regarding the trial judge's ruling that the Crown could use Kinkead's compelled testimony at Ranger's trial for purposes of cross-examination

[101] I conclude that Kinkead has not demonstrated that the trial judge erred in his ruling for three reasons.

[102] First, although I agree that Noël circumscribes Kuldip by clarifying that an accused person's previous testimony may only be used for impeachment purposes at a subsequent trial where "the trial judge is satisfied that there is no realistic danger that his prior testimony could be used to incriminate him", I do not agree that Noël stands for the proposition that a particular class of prior testimony will always be excluded from use, or that Kinkead's prior testimony fits within the class of prior testimony that will likely be excluded from use.

[103] In Noël, Arbour J. stated her overall conclusion concerning the use of prior testimony for purposes of cross-examination as follows (at para. 4):

When an accused testifies at trial, he cannot be cross-examined on the basis of a prior testimony unless the trial judge is satisfied that there is no realistic danger that his prior testimony could be used to incriminate him. The danger of incrimination will vary with the nature of the prior evidence and the circumstances of the case including the efficacy of an adequate instruction to the jury.

(Emphasis added)

[104] However, Arbour J. went on to draw a distinction between prior testimony that was incriminating at the time it was given and prior testimony that was innocuous at the time it was given. In particular, she noted that because an accused person's prior inconsistent statements can be used to prove the truth of their content, there is a serious problem in giving a jury clear instructions to ensure that they do not use prior incriminating testimony for the purpose of incrimination. She said that, in many instances, it is simply not realistic to expect a jury to restrict its use of prior incriminating testimony to evaluating credibility. Accordingly, she concluded cross-examination on prior testimony that was incriminating at the time it was given will likely be prohibited.

[105] On the other hand, prior testimony that was innocuous at the time it was given does not begin with the same difficulty. Although it must meet the same threshold for admissibility, clearly the evidence must be examined in context to determine whether it falls within the parameters of Kuldip.

[106] In this case, in my view, Kinkead's prior testimony does not fall within the category of testimony that was incriminating at the time it was given. In his testimony at Ranger's trial, Kinkead acknowledged that he was at the Ottey home around the time of the murders, but claimed that he was there for an innocent purpose and that he was no longer there at the time the murders occurred. Viewed in context, Kinkead's testimony at Ranger's trial placing him at the murder scene close to the time of the killings was not incriminating at the time it was given and therefore does not fall within the class of prior testimony with respect to which cross-examination will likely be prohibited.

[107] Second, as a matter of logic, with respect to evidence that was not incriminating at the time it was given, a decision concerning whether the Noël test has been met should only be made based on an accused person's testimony, or anticipated testimony, and not, on appeal, based on the closing submissions of an accused person who did not testify. In this case, when Kinkead applied for a ruling prohibiting the Crown from cross-examining him on his testimony at Ranger's trial, he did not provide the trial judge with any indication of the content of his anticipated evidence. In my view, this factor, standing alone, precludes Kinkead from succeeding on this ground of appeal.

[108] The Crown concedes that if Kinkead had testified at trial that he was not at the Ottey residence on the morning of August 16, 1995, using his testimony from the Ranger trial to contradict him on that issue would have violated s. 13 of the Charter [^19]. However, the fact that Kinkead ultimately took the position, in closing submissions, that the Crown had not established that he was at the Ottey home that morning does not mean that he would have testified to that effect.

[109] An accused person who testifies may, in the course of giving exculpatory evidence, provide evidence that establishes some of the facts that the Crown would otherwise be required to prove. In such circumstances, the accused will not be able to make closing submissions that the Crown has failed to prove those facts. However, an accused person who chooses not to testify is not subject to the same limitation; he is free to make closing submissions that the Crown has failed to prove relevant facts, even if his evidence would have established those facts had he testified.

[110] Viewed in this light, the fact that Kinkead ultimately took the position that the Crown had not established that he was at the Ottey home on the morning of August 16, 1995 is irrelevant to assessing whether the Crown should have been permitted to cross-examine him at his trial with respect to his testimony at Ranger's trial. What is relevant and necessary to the assessment, is the actual testimony of the accused person, or, at the very least, his anticipated testimony.

[111] Third, since Kinkead applied for an advance ruling that the Crown be precluded from using his prior testimony for purposes of cross-examination, but did not disclose the substance of his proposed testimony, either at trial or by way of fresh evidence on appeal, I see no basis for finding that the trial judge contravened the principles in Underwood.

[112] Underwood contemplates defence disclosure as a precursor to an advance ruling on a Corbett application. Lamer C.J.C. explains (at paras. 8-10) that a voir dire may be held at the conclusion of the Crown's case so that the defence can reveal its proposed evidence. The purpose of the voir dire is not to give the Crown advance notice of the defence or to afford the Crown a right of advance cross-examination. Rather, it is "to provide the trial judge with the information he or she needs to make an informed decision". Although Lamer C.J.C. also commented that there may be cases in which the trial judge believes he or she has sufficient information to make a decision without such disclosure, in my view, this is not one of those cases for two reasons.

[113] First, as a general matter, the nature of the issues on a Noël application may very well require more precise advance disclosure than the issues in play on a Corbett application, which was the subject in Underwood. As pointed out in Underwood, one of the purposes of advance disclosure is to avoid the potential unfairness of having the accused take the stand in reliance on a ruling, only to have the ruling reversed because of new information. Because a Noël ruling is so closely related to the actual evidence, a decision to give an advance ruling without defence disclosure should be made with considerable caution.

[114] Second, in my view, the fact that Kinkead attacked the accuracy of the DNA evidence at his trial does not make it self-evident that, had he testified, he would have departed from his testimony at the Ranger trial. While his attack on the DNA evidence no doubt opened the door to a departure from his prior testimony, I see nothing inconsistent in Kinkead challenging the DNA evidence but giving evidence in substantial conformity with his previous testimony.

[115] In my view, without knowing the substance of Kinkead's proposed testimony, neither the trial judge nor this court is in a position to say whether the Crown should have been entitled to use Kinkead's prior testimony for the purposes of cross-examination.

[116] Finally, I note that this conclusion does not violate the right to silence. As Kinkead was seeking an advance ruling, he bore the onus of demonstrating that he was entitled to the relief that he sought, and therefore the tactical burden of disclosing his proposed testimony to permit a proper decision to be made.

[117] I would not give effect to this ground of appeal.

(iv) Did the Trial Judge Err in His Instructions to the Jury Concerning Evidence of Post-Offence Conduct?

(a) Background

[118] Police followed Ranger continuously for several days after the killings and then intermittently. They saw no sign of Kinkead until the afternoon of October 25, 1995, when they saw Ranger meet Kinkead at a Scarborough park. Kinkead's girlfriend at the time of the murders, Nadecai Phillip, was also present.

[119] Police videotaped portions of the October 25 meeting. The Crown played the videotape for the jury, and one of the surveillance officers testified about the events. According to that officer's testimony, after arriving at the park in separate vehicles, Kinkead and Ranger embraced and then walked to a hilly, forested area. Approximately 40 minutes later, the two men emerged from the forested area and returned to their vehicles where Kinkead wrote something into a daily planner. Kinkead then looked at a large road atlas with Ranger, the two men embraced and then parted.

[120] Phillip also testified. She said that she stopped seeing Kinkead sometime around October or November 1995. In late October 1995, she drove to Florida with her son and rented a car for the trip. Phillip confirmed that, on October 25, 1995, she drove Kinkead to the Scarborough park where he met Ranger. She said that before going to the park, she and Kinkead drove around a nearby neighbourhood looking for Ranger's house. They passed the house but did not go in.

[121] Phillip left for Florida a day or two after the meeting in the park. She returned to Ontario in early November, and then, about a month later, flew back to Florida and began working at a club. Phillip linked up with Kinkead when she returned to Florida and he lived with her there for some period. She said that on one occasion, she and Kinkead drove to Ranger's parents' home in Fort Lauderdale, where Kinkead met with Ranger.

(b) The defence position at trial

[122] At trial, defence counsel's primary objection related to the admissibility of the evidence that Kinkead went to Florida. He submitted that the evidence had no probative value as evidence of post-offence flight in relation to the Ottey murders because of the amount of time that had elapsed since those murders and its proximity to the Trajceski murder. On the other hand, he contended that the evidence had significant potential prejudice because of the risk that it, and the date of the meeting in the Scarborough park, would trigger the jury's memory concerning the Trajceski murder.

(c) The Crown position at trial

[123] The Crown contended that the post-offence conduct evidence was admissible because it dovetailed into other evidence showing the pattern of association between Ranger and Kinkead and was therefore relevant to the issue of planning and deliberation. Crown counsel confirmed that he was not asking, at that time, that the trial judge charge the jury that the evidence demonstrated consciousness of guilt.

[124] However, in his closing address to the jury, Crown counsel said the following:

. . . I have said to you earlier on in the general discussion about planning and deliberation that it must precede forming the intent to commit murder, or at least the murder itself. But you are entitled to use what's called post-offence conduct. That is to say, if you are satisfied that Mr. Kinkead participated in these killings, you are entitled to use the evidence . . . of what took place later than that to again circumstantially infer what the state of mind was ahead of time.

In other words, if there is what looks to be a whole plan afoot of what to do after these killings, you are perfectly entitled to conclude that that wasn't -- did not just happen by accident.

. . . Well obviously they split up. Well, why would you split up? Well, you would split up if you thought you had both been involved . . . and you did not want to be seen with each other.

Why do you think it is that those phone records and the evidence . . . all shows an association . . . throughout the months June, July and into August, and then . . . there's no contact between them.

. . . you can, together with the other evidence, use that to infer what their states of mind were before these murders and, if you are so inclined, include that as part of planning and deliberation of these murders.

. . . . .

And indeed then, curiously enough, to go back to the surveillance . . . then they are suddenly not together . . . for at least that period of . . . weeks for which Rohan Ranger is under 24 hour surveillance. Well why would that be? Well, one reason might be the reason I articulated this morning, they don't want to be seen together.

. . . When you have, even as late as October, when you have the meeting in the park, . . . Miss Phillip says, we drove by but did not stop at Mr. Ranger's house. Well, why would that be, do you suppose? Why would they meet in a park? What's this rendezvous if they're not afraid to be seen together? And then of course you've got them in the park in October and the road map . . . Miss Phillip said she did not drive them but that's for you to figure out, but the point is she did say she meets him down there.

So however he got down there he got down there, and then they meet up, she and Mr. Kinkead here, with Mr. Ranger . . . So there's still further evidence of their association during the months surrounding these homicides. So it shows, as I say, continuous association between the person with the motive to kill and the express threat to kill, the man I keep calling the man with the plan, and this guy right here. The man who we know has a knife on him from time-to-time.

(Emphasis added)

(d) The trial judge's instructions to the jury regarding the evidence of post-offence conduct

[125] The trial judge did not instruct the jury on whether the post-offence conduct could give rise to an inference of consciousness of guilt. Rather, he told the jury that they could use the impugned evidence in relation to the issue of planning and deliberation:

You should also consider conduct during and even after the time of the murders when considering the issues of whether the murders were planned and deliberate . . .

And again, there is the confirmatory evidence of Nadecai Phillip-Hughes who testified that Mr. Kinkead met up with Ranger in the park on October 25th and together they examined a road map. She stated that Ranger and Mr. Kinkead met up again several weeks later at Ranger's home in Florida. The police arrested Mr. Kinkead in Florida in 1997.

(e) Kinkead's submissions on appeal

[126] Kinkead's primary submission on appeal is that the trial judge erred by failing to instruct the jury that the evidence had no probative value as post-offence conduct capable of giving rise to an inference of consciousness of guilt and by failing to explain adequately to the jury how the evidence was relevant to planning and deliberation.

(f) Discussion regarding the trial judge's instructions to the jury concerning after-the-fact conduct

[127] I reject Kinkead's submissions for four reasons.

[128] First, I conclude that Kinkead was not entitled to a "no probative value" instruction in respect of the evidence of post-offence conduct and its potential to support an inference of consciousness of guilt. Accordingly, rather than being prejudicial, the trial judge's failure to instruct the jury on that issue was at least neutral, and may have inured to Kinkead's benefit.

[129] In my view, the Crown could properly have asked the trial judge to instruct the jury that they could use at least some of the evidence of post-offence conduct to draw an inference of consciousness of guilt, namely, the evidence of the hiatus in contact between the two men after August 16, 1995, and Phillip's evidence that she and Kinkead drove by Ranger's house before the two men met in a park (suggesting that there was a clandestine element to the meeting). In contrast to the issue of flight, there is no indication that either of those factors was related to the Trajceski murder.

[130] Although I read the highlighted portions of the Crown's closing address as inviting the jury to draw an inference of consciousness of guilt based on the two factors I have identified, I still conclude that the trial judge's failure to give a post-offence conduct instruction relating to consciousness of guilt was at least neutral to Kinkead. If the trial judge had instructed the jury on post-offence conduct relating to consciousness of guilt, he would have explained to the jury that they could only use the post-offence conduct evidence to draw an inference of consciousness of guilt if they were satisfied that that was the underlying basis for the conduct. While that instruction may have benefited Kinkead in theory, on a practical level, the only alternate explanation in the record for the hiatus in contact between the two men is a possible inference that Kinkead did not want to be seen with Ranger because he knew what Ranger had done.

[131] On the whole, given that the Crown's reference to this use of the evidence was brief, that an instruction by the trial judge would have highlighted this potential use of the evidence for the jury, and that the defence did not request that the trial judge give an instruction, I conclude that the trial judge's failure to give a post-offence conduct instruction relating to consciousness of guilt was at least neutral to Kinkead.

[132] Second, I consider it unlikely that the jury would have used the evidence of Kinkead going to Florida, standing alone, to draw an inference of consciousness of guilt based on post-offence flight. There was no evidence or suggestion that Kinkead left the jurisdiction until at least two months after the Ottey killings. Similarly, there was no evidence that the police were investigating Kinkead for the Ottey murders at the time he left for Florida or that there was any basis for him to be concerned about that possibility. Finally, neither the Crown nor the trial judge said anything to suggest that the jury could rely on the evidence that Kinkead went to Florida as evidence of flight. In my view, the more likely use of that evidence was that suggested by the trial judge, namely, that the hiatus in contact, the October 25 meeting in the park, and the subsequent rendezvous in Florida were part of an original plan and constituted evidence of planning and deliberation.

[133] Third, while it may have been preferable for the trial judge to have instructed the jury explicitly that they could only use the impugned evidence as evidence of planning and deliberation if they were satisfied that it was part of a plan preceding the murders, in my view, that requirement is implicit in the trial judge's instruction that the evidence was relevant to the issue of planning and deliberation. In addition, Crown counsel alluded to the requirement in his closing.19

[134] Fourth, defence counsel at trial did not request the instructions that are suggested on appeal. That, in itself, reinforces my conclusion that, at trial, the basis for using the impugned evidence as evidence of planning and deliberation was obvious.

[135] I would not give effect to this ground of appeal.

IV. DISPOSITION

[136] For the reasons given, I would dismiss this appeal.

Appeal dismissed.

[^1]: See R. v. Ranger (2003), 2003 32900 (ON CA), 67 O.R. (3d) 1 (C.A.).

[^2]: In his factum, Kinkead alleged that the trial judge made two other errors. In addition, he relied on an additional piece of evidence in support of his second ground of appeal. I have not dealt with those matters because Kinkead abandoned them in oral argument.

[^3]: Mrs. Ottey did not discover that the video and the electronic organizer were missing until several months after the killings.

[^4]: The trial judge's finding was actually as follows: "perhaps two to three [jurors] may have indicated, at least by their expression, anything in depth". However, on appeal, there is no real dispute that this amounted to a conclusion that two to three of the jurors were aware of Kinkead's murder conviction.

[^5]: (2001), 2001 BCCA 349, 154 C.C.C. (3d) 289 (B.C.C.A.).

[^6]: (2000), 2000 16953 (ON CA), 149 C.C.C. (3d) 349 (Ont. C.A.).

[^7]: (1982), 1982 3307 (ON CA), 67 C.C.C. (2d) 510, 137 D.L.R. (3d) 400 (Ont. C.A.).

[^8]: Hertich, at p. 541 C.C.C.

[^9]: R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, 41 C.C.C. (3d) 385.

[^10]: The trial judge ruled that the Crown would be entitled to cross-examine Kinkead on the following prior convictions: 1993 - robbery; 1997 - two counts of aggravated sexual assault and two counts of robbery.

[^11]: (1993), 1993 3428 (ON CA), 15 O.R. (3d) 1, 84 C.C.C. (3d) 226 (C.A.).

[^12]: 2002 SCC 56, [2002] 2 S.C.R. 908, 164 C.C.C. (3d) 481, at paras. 59-64.

[^13]: Handy, at para. 100.

[^14]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c.11.

[^15]: 2002 SCC 67, [2002] 3 S.C.R. 433, 168 C.C.C. (3d) 193.

[^16]: 2003 SCC 18, 172 C.C.C. (3d) 449.

[^17]: 1990 64 (SCC), [1990] 3 S.C.R. 618, 61 C.C.C. (3d) 385.

[^18]: (1997), 1998 839 (SCC), [1998] 1 S.C.R. 77, 121 C.C.C. (3d) 117.

[^19]: Section 13 of the Charter provides as follows:

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

[^20]: In his closing address to the jury, Crown counsel said the following (at p. 59):

... I have said to you earlier or in the general discussion about planning and deliberation that it must precede forming the intent to commit murder, or at least the murder itself. But you are entitled to use what's called post-offence conduct. That is to say, if you are satisfied that Mr. Kinkead participated in these killings, you are entitled to use the evidence... that you have... of what took place later than that to again circumstantially infer what the state of mind was ahead of time.