COURT OF APPEAL FOR ONTARIO

DATE: 20030220 DOCKET: C35877

WEILER, CHARRON and MOLDAVER JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

• and -

KWESI HUMPHREY Appellant

Counsel: Irwin Koziebrocki, For the appellant Lucy Cecchetto, For the respondent

HEARD: February 5, 2003

On appeal from conviction for manslaughter by Justice J. O’Driscoll and a jury dated May 5, 2000 and from sentence imposed on October 6, 2000.

MOLDAVER J.A.:

[1] The appellant was charged with second degree murder in connection with the death of his friend Milroy Thuraisingham. After trial by judge and jury, the appellant was convicted of manslaughter. The jury deliberated for two and one-half days before arriving at that verdict. The appellant was sentenced to imprisonment for ten years. He appeals against conviction and sentence.

[2] At the conclusion of oral argument, we notified the parties that for reasons to follow, the appeal against conviction was being allowed and a new trial on a charge of manslaughter ordered. These are the reasons.

CONVICTION APPEAL

Overview of Facts and Position of Parties at Trial

[3] In view of the fact that there must be a new trial, it is unnecessary to dwell on the evidence. A brief overview of the salient facts and the position of the parties at trial will suffice.

[4] In the course of an evening of card-playing and drinking at a friend’s apartment, the appellant became upset when one of his group, Ranjeev Sekhon, insulted a female who had asked the men to keep the noise down as she was trying to put her child to bed. An argument erupted between the appellant and Sekhon and the appellant pushed Sekhon against a wall. At that point, the deceased, who was much larger than the appellant, intervened and the appellant began swearing and shouting at him. The deceased then shoved the appellant and the appellant fell backwards onto the kitchen floor.

[5] According to the Crown, at that point, the appellant took up a kitchen knife, attacked the deceased and intentionally stabbed him in the chest. Tragically, the wound severed the deceased’s left pulmonary vein and death ensued shortly thereafter. According to the defence, after the appellant had been thrown onto the kitchen floor, he saw the deceased coming at him and he picked up a knife to ward off the attack and dissuade the deceased from advancing further. Unfortunately, the deceased did not stop and he impaled himself on the knife. In these circumstances, the defence relied upon a combination of self-defence and accident in support of its position that the homicide was non-culpable and the appellant should therefore be acquitted.

Grounds Of Appeal

[6] The appellant raised numerous grounds of appeal. In the end, Mr. Koziebrocki fairly acknowledged that the appeal turned on one issue, namely, the impact of the trial judge’s misdirection on the use the jury could make of two after-the-fact statements, made by the appellant to third parties, that the Crown had introduced as part of its case in-chief. Accordingly, I propose to limit my remarks to that issue.

Misdirection On The Use The Jury Could Make Of The Appellant’s After-The-Fact Statements

Background

[7] Although the appellant did not testify, it was his understanding that two Crown witnesses had provided the evidentiary base needed to support his position that the homicide was a product of self-defence and accident and therefore non-culpable. The two witnesses in question were Mr. Robert Bercovici, the appellant’s probation officer, and Ms. Melanie Caicco, a trusted friend.

[8] At the instance of the Crown, in its case in-chief, these two witnesses provided evidence of statements made to them by the appellant shortly after the stabbing incident. In both statements, the appellant admitted to possessing the knife when it penetrated the deceased. It is for that reason that the Crown sought to introduce their evidence. Identity of the stabber remained a live issue at trial and the Crown wanted to close off that defence to the appellant.[^1]

[9] To the extent that the appellant’s statements assisted the Crown on the issue of identity, they also assisted the appellant by providing him with the evidentiary base needed to support his position that the homicide was non-culpable. In particular, in his statement to Mr. Bercovici, the appellant stated:

We were drinking and playing cards and we argued. He came at me and tore my shirt. I pushed him away. He came at me again. I grabbed the knife to keep him from coming close and he ran right into my knife. I killed him. He was my friend. I ate with him, I shared my tea with him. He was my friend and I killed him. I walked around all night and I didn’t know what to do [emphasis added].

[10] To Ms. Caicco, among other things, the appellant stated that he and the deceased had been best friends for years; they had become involved in an argument; he did not mean to stab the deceased; he was very upset about what had happened; and he was defending himself after the deceased, who was much larger, came after him.

[11] Before charging the jury, the trial judge reviewed with defence counsel [not Mr. Koziebrocki] the various defences available to the appellant. In the course of that interchange, defence counsel made it known that the appellant was relying upon the defence of accident based on the content of his after-the-fact statement to Mr. Bercovici. At that time, neither the Crown nor the trial judge raised a concern about instructing the jury that the exculpatory portion of the appellant’s statement to Mr. Bercovici could be used as original evidence. The same holds true with respect to the exculpatory portion of the appellant’s statement to Ms. Caicco. It was only when the trial judge was part way through his charge that the defence learned, for the first time, that the trial judge considered the exculpatory portion of both statements to be self-serving hearsay evidence which the jury could not consider for the truth of the facts contained therein. The trial judge’s instructions in this regard are reproduced below:

How do you deal with Mr. Bercovici’s evidence?

There is no evidence or reason put forward why you should not accept Mr. Bercovici as a truthful and reliable witness. However, what does his evidence consist of? Mr. Bercovici is simply reporting what someone else, the accused, said to him. Therefore, although you find Mr. Bercovici is a truthful and reliable witness, the conversation that he relates may only be used by you as follows:

If you accept Mr. Bercovici’s evidence, you may use any admission against interest made by the accused as truth of the facts. For example, the accused is said to have said: “I killed him”. You may accept that as truth of the facts so stated.

You may not, again, you may not use any other part of the conversation as truth of the facts unless again it is an admission against interest. By that I mean the part of the conversation where he says: “I didn’t mean to do it”, or He ran right into the knife.” Those are not admissions against interest.

Again, only admissions against interest by Kwesi Humphrey in that telephone conversation may be used by you for the truth of the facts, and the balance is not to be used as truth of what was said. That is, you accept that Mr. Bercovici is faithfully reporting what was said. You accept Mr. Bercovici’s evidence that Mr. Humphrey said: “It was an accident.” But, the statement that “it was an accident” is not to be used by you as truth of the facts. It is not evidence of: “I did not intend to kill him”. It is unsworn hearsay evidence, it is not given under oath, there has been no cross-examination on what is alleged to have been said.

If you stop and consider what I have just advised you, it makes sense. Otherwise, a person charged with a criminal offence could telephone all his or her relatives and friends and state things that may or may not be true, and then call those people as witnesses to report what they were told.

Thus, with regard to Mr. Bercovici’s evidence and that of Melanie Caicco, only admissions against interest by the accused is evidence of the truth of the facts.

We have the evidence of “Melanie Caicco”. Again, ladies and gentlemen, what I just said about the evidence of Mr. Bercovici applies here. The only part of Ms. Caicco’s evidence regarding what she says the accused told her that you can take as truth of the facts is when the accused is reported to have told her he stabbed the deceased [emphasis added].

[12] Later in the charge, when dealing with the defence of accident, the trial judge reminded the jury that the exculpatory portions of the appellant’s statements to Mr. Bercovici and Ms. Caicco “could not be used for the truth of the facts stated therein.” He then went on to discuss the defence of accident with the jury, albeit in an entirely different context from the one raised by the appellant in his statement to Mr. Bercovici. Those instructions need not be detailed. They relate to a scenario, based on other evidence, that in the course of confronting the deceased, another male may have struck the appellant’s arm and accidentally caused the knife to penetrate the deceased.

[13] After the charge was completed, defence counsel objected to the trial judge’s instructions on the use they could make of the appellant’s statement to Mr. Bercovici. In particular, he submitted that the jury should have been told that “the whole of the statement is evidence.” The trial judge refused to give effect to that objection.

[14] That is how matters stood until the jury sought a response to the following question:

We would like to hear the portion of his lordship’s charge describing what would constitute an accident.

[15] Before answering that question, the trial judge sought and received submissions from both counsel. For his part, defence counsel requested among other things, that the trial judge reconsider his instruction to the jury on the use they could make of the appellant’s statements to Mr. Bercovici and Ms Caicco. On this occasion, defence counsel provided the trial judge with several authorities which, in his submission, supported the defence position that the jury could consider the statements, in their entirety, as original evidence.

[16] The trial judge refused to give effect to the defence request. In his response to the jury’s question on accident, he reminded the jury once again that “the only mention of ‘accident’ comes from the accused in circumstances that do not allow you to use his statements as truth of the facts.”

[17] The only other background fact of note relates to a further question submitted by the jury in which the jury requested reinstruction on the defence of self-defence. In response to that question, the trial judge essentially repeated the instructions he had given in the charge proper. Significantly, those instructions focused exclusively on s. 34(2) of the Criminal Code. Nowhere in the charge or in response to the question from the jury did the trial judge instruct the jury on the combined defences of self-defence (under s. 34(1) or s. 37 of the Code) and accident arising out of the statement made by the appellant to Mr. Bercovici and, to a lesser extent, his statement to Ms. Caicco.

ANALYSIS

[18] With her usual candour, Ms. Cecchetto [not Crown Counsel at trial] fairly concedes that the trial judge erred in instructing the jury that only the inculpatory portion of the appellant’s statements to Mr. Bercovici and Ms. Caicco could be used as original evidence. On the contrary, as Ms. Cecchetto points out, the jury should have been told, in accordance with established principle, that the statements were evidence for and against the appellant and that they could be considered in their entirety as original evidence.

[19] The principle to which Ms. Cecchetto refers is one of long-standing. It is stated succinctly by Griffiths J.A. at p. 51 of R. v. Lynch (1988), 30 O.A.C. 49 (Ont. C.A.):

The above direction [that the jury could only use the inculpatory portion of the appellant’s statement] would have been appropriate if the exculpatory statements had been introduced by the appellant as part of his defence, on the ground that in those limited circumstances, the denials of knowledge of the drugs by the appellant were only admissible to rebut the suggestion of recent fabrication. But, where as in this case the exculpatory statements were introduced as part of the Crown’s case, the jury should have been instructed that those statements became evidence for the accused as well as against him and that it was open to the jury to consider those statements as proof of the facts contained therein. The exception to the general rule against self-serving statements is founded on the principle that where the Crown introduces the statement, then it adopts that statement at least as evidence in the Crown’s case [emphasis added].

See also R. v. Higgins (1829), 3 Car. and P. 603 at 604; R. v. Hughes et al. (1942), 78 C.C.C. 257 at 261 (S.C.C.); R. v. Graham (1972), 7 C.C.C. (2d) 93 at 98-99 (S.C.C.).

[20] Having conceded the error, Ms. Cecchetto nonetheless maintains that in the circumstances of this case, the error was harmless and it occasioned no prejudice to the appellant. Accordingly, she submits that this is a proper case to apply the curative proviso in s. 686 (1)(b)(iii) of the Criminal Code to save the conviction.

[21] In support of her position, Ms. Cecchetto points to the fact that the appellant was only convicted of manslaughter and she submits that on this record, that is “the best verdict the appellant could have hoped for.” She further submits that the exculpatory portion of the Bercovici and Caicco statements would have been of little assistance to the appellant because the statements contradicted each other and they did not fit with the evidence given by witnesses at the scene. That being the case, Ms. Cecchetto submits that had the exculpatory portion of the statements been left with the jury, this would only “have underscored … the fact that the appellant did not testify.”

[22] With respect, I do not agree that this is a case in which the curative proviso can safely be applied to sustain the conviction. Unlike Ms. Cecchetto, I am not persuaded that the appellant’s statements to Mr. Bercovici and Ms. Caicco are contradictory. More importantly, I do not accept that manslaughter was the “best possible” verdict the appellant could have achieved on this record. On the contrary, if the jury believed or had a reasonable doubt that the homicide occurred as described by the appellant in his statement to Mr. Bercovici, then the appellant was entitled to an acquittal. Specifically, had the jury concluded or entertained a reasonable doubt that the appellant took up the knife as a preventative measure to keep the deceased from advancing against him and the deceased advanced nonetheless and impaled himself on the knife, the resulting homicide would be non-culpable by virtue of the combined effect of self-defence under s. 34(1) or s. 37 of the Code and accident.

[23] As it is, the case was not left to the jury on that basis because of the trial judge’s ruling that the exculpatory portion of the appellant’s statements to Mr. Bercovici and Ms. Caicco could not be used as original evidence. The net effect of this is that the appellant was deprived of the benefit of an instruction that was available on the record and that may have resulted in his acquittal. For that reason alone, the error was highly prejudicial and not capable of being saved by the curative proviso.

[24] I am further of the view that the error may have rendered the trial unfair in the sense that had the appellant known, before the charge, that the trial judge intended to remove from the jury’s consideration the exculpatory portion of his statements, he may have given evidence. As it is, the appellant did not give evidence, perhaps in part because he assumed that his defence of non-culpable homicide would be put to the jury on the basis of his statements to Mr. Bercovici and Ms. Caicco. To the extent that this assumption may have influenced his decision not to testify, I believe that the appellant’s right to a fair trial was compromised. For that reason as well, the curative proviso cannot be applied to save the conviction.

CONCLUSION

[25] For the reasons stated, I am satisfied that the conviction for manslaughter cannot stand and a new trial must be ordered. Accordingly, I find it unnecessary to address the other grounds of appeal. In particular, I believe that the various grounds relating to evidentiary matters are best left to the trial judge conducting the new trial. The others are case specific and unlikely to recur at the new trial.

[26] In the result, I would allow the appeal, set aside the conviction and order a new trial on a charge of manslaughter.

Signed: “M.J. Moldaver J.A.”

“I agree K.M. Weiler J.A.”

“I agree Louise Charron J.A.”

RELEASED: “KMW” FEBRUARY 20, 2003

[^1]: Evidence from another Crown witness pointed to someone other than the appellant as the stabber.