DATE: 20040623

DOCKET: C33710 & C36455

COURT OF APPEAL FOR ONTARIO

WEILER, ROSENBERG and BORINS JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

(Respondent)

• and -

ROBERT POLLOCK

(Appellant)

- and -

DAVID MORRISSON

(Appellant)

Keith E. Wright for the appellant Robert Pollock

William J. Parker for the appellant David Morrisson

Lucy Cecchetto for the respondent

Heard: December 9-10, 2003

On appeal from the convictions entered by Justice Robert E. Zelinski of the Superior Court of Justice, sitting with a jury, on June 27, 1998, and from the sentences imposed by Justice Zelinski on June 27, 1998.

ROSENBERG J.A.:

[1] Pollock and Morrisson were tried jointly. The Crown’s case against both of them was formidable. What leads to the different results in the two appeals is that, in my view, Pollock was deprived of a fair trial because of the conduct of Morrisson’s defence. That defence involved an unrelenting attack on Pollock’s character. Further, Morrisson’s counsel, Mr. Cornale, frequently ignored the trial judge’s rulings: he introduced or attempted to introduce inadmissible and highly prejudicial evidence despite the many timely objections by counsel for Pollock, Mr. Kerbel.

[2] The evidence was introduced by Morrisson’s counsel on the theory that it was necessary to ensure that Morrisson received a fair trial. Morrisson had given a false statement to the police the day after the offences. The trial judge permitted defence counsel for Morrisson to question Crown witnesses about Pollock’s disposition for violence to support the Morrisson defence theory that Morrisson lied to the police because of his fear of Pollock. At the time this evidence was introduced, Morrisson’s fear of Pollock was not a live issue in the case. There was no evidence that Morrisson was afraid of Pollock or that he lied to the police because of any fear of Pollock. In addition to the evidence that was permitted by the trial judge’s rulings, Morrisson’s counsel constantly asked questions that called for inadmissible hearsay or opinion answers, or answers that went beyond the trial judge’s rulings. In my view, the trial was so distorted by this evidence and this conduct that Pollock did not receive a fair trial.

[3] Morrisson appeals his conviction, principally on the basis of some of the cross-examination conducted by Pollock’s counsel. In my view, the cross-examination was proper and the evidence elicited was admissible.

THE FACTS

[4] In view of the grounds of appeal raised by both appellants, I find it necessary to provide a relatively lengthy recitation of the facts. I will also include in this summary a review of the trial chronology, which is important in order to understand how the inadmissible and prejudicial evidence came before the jury.

1. The shootings

[5] The deceased Stewart Weston was a dealer in drugs. Blair Smith, the victim of the attempted murder, was a friend of Weston’s. The two of them would often go for walks together. On November 25, 1993, Weston came over to Smith’s house and the two left for their walk a little after 9:00 p.m. Before leaving from Smith’s house, Weston told one of Smith’s roommates that if “Dave” came, he should wait for him at the house or meet him during the walk. Smith had met the appellant Morrisson on several occasions and knew him as “Dave”. Weston and Smith had a regular route that they followed.

[6] About halfway through the walk, Smith and Weston came upon a truck parked at the side of the road. As they came within fifteen yards of the truck, the driver’s door opened and someone left the vehicle. Then, another person jumped out from behind a tree and fired two shots. These first shots hit Weston. The shooter then shot Smith at almost point blank range, hitting him in the area of his left shoulder blade. Smith fell down. The shot had paralysed Smith from the armpits down. Smith was unable to identify either the shooter or the driver.

[7] While he was lying on the ground, Smith heard the footsteps of the shooter and the driver walking towards the area where he thought Weston to be. Smith heard two more gunshots and then kicking sounds that lasted for about 30 seconds. The two persons returned to the truck and drove off.

[8] People in the area heard the gunshots, and shortly after 10:00 p.m. the police were in attendance. A number of people had also earlier seen the truck used by the perpetrators parked in the area of the shootings. A description of the truck was broadcast shortly after the killings. One witness testified that the truck did not have licence plates.

[9] According to the pathologist, Weston had died from a combination of gunshots and blunt force injuries to the head. The blunt force injuries were likely caused by a combination of “pistol whipping” and kicks. The pathologist suggested that two different types of footwear, one a hard shoe and the other a soft shoe, could have caused the injuries. A bullet recovered from Smith’s clothing appeared to have been fired from a .38 or .357 calibre handgun, with Smith and Wesson specifications.

2. Morrisson’s original statement to the police

[10] At about 5:00 p.m. on the day following the shootings, the police received a call from a lawyer, Allan Mintz, who stated that his client had witnessed a shooting and wanted to speak to the police. The police arranged to meet with the lawyer and his client at a doughnut shop. The police arrived at the doughnut shop at about 6:30 p.m., and Morrisson arrived at the shop about 6:50 p.m. He was driving his white Bronco truck. He said that he was scared and wanted to tell the whole story. Mr. Mintz did not arrive. After waiting for some time, Morrisson agreed to accompany the officers to the police station. At about 9:55 p.m. Mr. Mintz called the station and briefly spoke to Morrisson. Morrisson then spoke to the police.

[11] Morrisson described Weston and Smith as his friends. He said that Weston was a major drug dealer and that he, Morrisson, also sometimes sold drugs to finance his own habit. He said that Weston had called Morrisson and asked to meet Morrisson during his, Weston’s, walk, as they had done many times before. This meeting was so that Morrisson could repay a debt to Weston. He was to bring $410. Morrisson drove to Smith’s house, but by that time Weston and Smith had left on the walk, so Morrisson drove to a spot on the route. As Weston and Smith approached, Morrisson saw a large man step out of the bush and fire five or six shots. He could not identify the shooter. Smith fell down and the man chased Weston. Morrisson said that he only heard shots and no beating or kicking noises. Morrisson said he had never been so scared. Morrisson offered the opinion that there were many people who would have wanted to kill Weston because of his cocaine trafficking. Morrisson expressed no fear of Pollock.

3. Terry McLean

[12] Terry McLean was a person whose name surfaced in the course of the investigation. The police believed that he was a drug dealer, and had been involved in several assaults and shootings in the Hamilton area. The police interviewed McLean about the shootings and he was unable to account for his whereabouts on November 24 and 25. By the time of the trial, McLean had disappeared.

4. Surveillance of Morrisson and Pollock

[13] The police seized the Bronco and the clothing Morrisson said he had been wearing the night before. Morrisson was not arrested but the police kept him under surveillance over the following days. On November 27^th, after taking a circuitous route, Morrisson drove to Pollock’s residence. About two hours later, Morrisson went to a mall and parked next to a car normally driven by Pollock or his girlfriend. Morrisson spoke to the male driver of the vehicle for about eight minutes. The following day, Morrisson met Pollock at another plaza. The two spoke for a few minutes. On November 29^th, Morrisson drove to Pollock’s home and remained there for about seven minutes.

[14] Morrisson’s Bronco was examined by experts from the Centre for Forensic Sciences. They found a small bloodstain on the passenger side of the vehicle that was matched to Weston’s blood through DNA analysis.

[15] Over the next few months, the police maintained intermittent surveillance of Pollock and Morrisson. On several occasions, Pollock was seen to meet with a friend, B, who eventually became a witness at the trial. The trial judge made an order that the identities of B and another witness, A, not be published. The police also observed some further contact between Pollock and Morrisson.

[16] Police surveillance also showed that in late January 1994, A, Pollock and others were involved in a conspiracy to rob a jewellery store. Evidence concerning this conspiracy forms part of Pollock’s principal ground of appeal and I will discuss it in further detail below.

5. Teresa Jones’s initial statements

[17] Teresa Jones was Pollock’s girlfriend, and was living with him at the time of the killing. In January 1994, the police began applying pressure to Jones to tell the police about Pollock’s involvement in the killing. Initially, Jones refused to provide much information other than to say that she thought she may have been at home with Pollock watching movies on the night of the killing. She also said that she did not know Morrisson, Weston or Smith. In one meeting, an officer asked Jones if she had ever had sex with Weston. She denied it.

6. The “Arizona ploy”

[18] On March 3, 1994, the police executed a plan that became known as the “Arizona ploy”. The idea was for undercover police officers to pose as drug dealers from Arizona. Morrisson panicked when he heard that these men had come to his residence, and he went to the police station. He told the police that he was concerned that these men thought he was involved in Weston’s death. He also mentioned that he had been discussing some aspects of the murder case with his “buddy”, Pollock. While Morrisson expressed fear for himself and his family arising out of the appearance of the people from Arizona, he did not express any fear of Pollock. The officer asked Morrisson directly if Pollock had been at the scene of the killing and Morrisson said that he did not see him. The officer suggested that Pollock was the shooter, but Morrisson said that it was not Pollock, that the shooter was taller than Pollock.

7. The impugned evidence

(a) Weston’s ring, the robbery conspiracy and the threat

[19] In February 1994, Weston’s daughter began inquiring about the return of Weston’s property. In particular, she asked about a ring her father usually wore, which had not been returned to her after his death. The issue was not followed up until August 1994 when Ms. Weston drew a picture of the ring for one of the police officers. Eventually, the police learned of the involvement of A and other persons in disposing of a ring.

[20] A testified at trial that shortly before Christmas 1993, he had received a call from Craig Foster, a friend of A’s brother. Foster asked A to contact a jeweller, Hans Rapedius, whom he knew handled stolen jewellery. A and Foster then met up with Pollock. Pollock handed over a plastic bag that contained a man’s gold ring with a big single solitaire diamond and rows of about six small diamonds along each side. According to A, Pollock explained that “the body this ring came off is no longer breathing”. A and Foster then drove to Rapedius’s home, where Rapedius gave them $2,500 in cash in exchange for the ring. They returned to Foster’s house and Foster called Pollock. Later, Foster provided the money to Pollock less $100 that Foster gave to A. The theory of the Crown was that this was Weston’s ring and that Pollock acquired it after killing Weston. A’s description of the ring differed somewhat from the description Ms. Weston gave of the ring she had seen her father wear.

[21] In April 1994, A was charged with conspiracy to rob a jewellery store. He was eventually released on very strict bail conditions. In December 1995, A was charged with breach of recognizance and he then asked the local police to contact the Halton police regarding Weston’s murder. A gave statements to the police about the ring and entered the witness-protection programme. A’s conspiracy charge was eventually withdrawn. A had a lengthy criminal record and was still carrying on with illegal activities while negotiating with the police.

[22] In addition to his testimony at trial regarding the sale of the ring, the Crown sought to introduce evidence from A concerning a threat that Pollock made to A in the course of the robbery conspiracy. The Crown anticipated that A would testify to the effect that Pollock said “I’ll kill you too” to A, if A or other conspirators were to tell anyone about the robbery conspiracy.

[23] The Crown alleged that these words contained an admission to the earlier Weston killing, and sought to introduce this evidence. The Crown recognized that evidence of the robbery conspiracy was prejudicial and therefore only sought to lead the statement. Counsel for Pollock opposed admission. Morrisson’s counsel took no part in the argument. When asked if he had any submissions, he said:

No, as you say, not at this point in time, thank you. It’s my friends taking issue as you are aware at this time. [Emphasis added.]

[24] The trial judge ruled on the Crown’s application. He held that the evidence was inadmissible. He viewed the so-called admission as being of “marginal probative value” and as being extremely prejudicial. He said this:

[The evidence of the statement] invites inferences of the propensity of Mr. Pollock to murder and / or violence. Hearing it may also mislead or confuse the jury. It will undoubtedly necessitate very lengthy cross-examination which will likely refer to the participation of [A] and Mr. Pollock in an intended robbery which is itself, unrelated to the murder.

Instructions that I give to the jury referable to such evidence might, in my view, also confuse the jury. [Emphasis added.]

I agree with the trial judge’s ruling and the reasons he gave. The evidence was of marginal probative value. It would be nothing more than speculation to connect the alleged threat to the killing and the evidence was highly prejudicial.

[25] The trial proceeded accordingly. The trial judge made one further ruling in the course of A’s evidence-in-chief. He permitted Crown counsel to lead evidence from A as to what led him to connect the ring to the murder, namely a newspaper story. Counsel for Pollock objected because he feared this might lead to discussion of Pollock’s involvement in the robbery conspiracy. There was some further evidence-in-chief from A about subsequent charges, including conspiracy to commit robbery (there was no mention of Pollock), his deal with the police and Crown, and his entry into the witness-relocation programme. This evidence was relevant to A’s credibility, it being the theory of the defence, in part, that A, who had a lengthy criminal record, was lying in exchange for favours from the authorities.

[26] Counsel for Morrisson then cross-examined A. He established that A had no dealings with Morrisson and did not even know him. He asked some questions about the ring transaction and whether A had some subsequent dealings with Pollock and Foster. Then, without obtaining a ruling from the trial judge, he asked A the following question:

Q. And when you had these further dealings and further meetings both with Mr. Foster and Mr. Pollock, you had met with Mr. Pollock and at one stage he said “And I’ll kill you too”?

A. Yes.

Q. Correct?

A. Yes, he did.

Q. What did he say to you then?

[27] Counsel for Pollock then objected and the jury was excused. The trial judge rightly asked Morrisson’s counsel why he did not clear the issue with the Court before asking the question. In hindsight, perhaps the fact that Morrisson’s counsel had said he had no submissions “at this time” during the discussion of the Crown’s possible examination of A on the same issue should have alerted the trial judge and other counsel to what was going to happen. Be that as it may, counsel for Morrisson gave no real indication that he intended to lead this evidence from A. He should have given such an indication. It was unfair to the trial judge, Crown counsel and counsel for Pollock. Had counsel and the trial judge known that Morrisson’s counsel intended to lead this evidence, they could have addressed the whole issue at that time. In light of what occurred, it is apparent that Morrisson’s counsel decided on a tactic of surprising the trial participants by leading evidence that he knew was presumptively inadmissible.

[28] When asked why he did not clear the issue with the trial judge before asking the question, counsel for Morrisson replied that this was a “crucial and relevant area” for the defence and the earlier ruling only applied to the Crown. He argued that the evidence was admissible to show Pollock’s propensity for violence and would therefore support Morrisson’s position that he too was afraid of Pollock and that is why he did not tell the police the whole “truth” in his earlier statement. Morrisson’s counsel summarized the theory for admitting the evidence as follows:

Mr. Morrisson like this witness, like the other witness in the witness protection program, was extremely fearful and under the threat and fear of his life as well. And had grave concerns in giving the statement in the way and nature that he gave it. And it’s extremely relevant, crucial and critical that this evidence, which is fundamental, critical to the defence in this case, be illustrated through this witness.

[29] Pollock’s counsel submitted that the evidence was not probative. He also made the point that at this stage there was no evidence from Morrisson that he was afraid of Pollock. Further, this threat was made after the fact to other people and therefore could not have influenced Morrisson in any way.

[30] In the course of his submissions, counsel for Pollock referred to Morrisson’s counsel’s tactic as a “sneak attack” and an “ambush”. The trial judge admonished counsel for those comments, stating his belief that Mr. Cornale had been “a very responsible counsel who has addressed issues head on”. In hindsight, this comment may have been misinterpreted by Mr. Cornale as a green light for the continuing use of the same kind of tactics that he employed on this occasion, as I will describe below.

[31] Following extensive argument, the trial judge ruled that the question was proper. He did so on the basis that the evidence was necessary for Morrisson to make full answer and defence. This became a crucial ruling and I therefore reproduce most of it below.

The theory of the defence is that those statements were made out of fear of Mr. Morrisson in relation to his co-accused, Mr. Pollock, all of which can be developed as being plausible, having regard to the disposition issues referred to that are presently being developed, if permitted, through [A].

Succinctly, Mr. Cornale indicates that the question must necessarily be answered in response to full answer and defence entitlements of his client. That, in my view, is a significantly different issue than the one that I addressed in my earlier ruling when I did not permit the Crown to develop that line of questioning.

Counsel have referred a number of cases to me including Regina v. Kendall and McKay, 35 C.C.C. (3d) at 105; Regina v. Tom 1997 O.J. Number 2807 and those other cases which Ms. Jago [Crown counsel] indicated she had passed on to counsel, and of which I take note at this time.

As stated in Regina v. Arcangioli, one of those cases, at page 297:

“The courts are reluctant to exclude evidence offered by an accused in his defence.”

This is prefaced by the statement:

“The proposition is unquestioned that evidence which is logically probative may be excluded where its probative value is slight but its prejudicial effect upon the fair trial of the accused is great.”

That, in essence, is the position presented on behalf of Mr. Pollock against which I must weigh, using some test of proportionality, the full answer and defence rights of Mr. Morrisson. I take it as a given, that the co-accused, unlike the Crown whose hands are tied in the area of the issues of character, do not have their hands similarly tied.

The question and the answer that were given will not be struck on the grounds that the question asked was admissible. It is derived in matters relevant to full answer and defence issues. [Emphasis added.]

[32] After ruling that evidence of the threat was admissible, the trial judge considered whether evidence of the robbery conspiracy itself was admissible. In the course of submissions opposing admission of this evidence, counsel for Pollock pointed out that at this stage there was no evidence that Morrisson made his statement to the police out of fear of Pollock. The trial judge ruled that the evidence of the robbery conspiracy was not admissible, holding in part as follows:

I am of the view that there is little, if any, relevance to the circumstances of Mr. Morrisson’s complete defence that a robbery was being planned by Mr. Pollock and others weeks after the murder, and that the admission of his alleged threat on that day necessitates all of the evidence of disposition which surrounds that alleged threat. This is despite Mr. Cornale’s suggestion that there is a similarity in Mr. Pollock’s treatment of, and disposition, towards his joint ventures in crime.

[33] As a result of the trial judge’s ruling concerning the threat, Pollock applied for severance. The application was dismissed.

(b) Evidence of Pollock’s drug dealing

[34] In continuing to cross-examine A, counsel for Morrisson asked A to confirm that A had learned that Pollock owed money to Foster. Counsel for Pollock objected. After the jury was excused, he pointed out that this debt arose out of a drug transaction, a topic upon which he could not cross-examine without making the situation for his client “worse”. The trial judge ruled that this evidence was admissible as it was relevant to “issues of full answer and defence”. Before the cross-examination continued, the trial judge gave the jury an instruction as to the use of this evidence:

Members of the jury, again when [A] comes back it’s proposed by Mr. Cornale that he is going to engage in some questions which clearly identify themselves with the issues of the disposition of Mr. Pollock. As I explained to you previously, such questions are not evidence Mr. Pollock committed the crimes set out in the indictment. Simply on the basis that he is a type of person who would commit crimes, such evidence is evidence which cannot be used to infer from the fact of that evidence that it is positive evidence of the evidence of the guilt of Mr. Pollock in relation to these crimes. You cannot conclude that something by virtue of the evidence you hear that he is a bad person who from that evidence, has a propensity, and for that reason must be the person who has committed the crime set out in the indictment or either of them.

(c) A and the witness-protection programme

[35] Over objection from counsel for Pollock, the trial judge ruled that counsel for Morrisson could lead evidence that A entered the witness-protection programme because of his fear of Pollock. Counsel for Morrisson led evidence from A that the threat from Pollock, the comment during the ring sale, and the newspaper articles about the offences, all prompted A’s fear of Pollock and desire to enter the witness-protection programme. I point out that at this time Pollock’s counsel had not cross-examined A, and there was therefore no suggestion that A’s motives for entering the witness-protection programme were a live issue in the case.

(d) Pollock’s involvement in the robbery conspiracy

[36] In the course of cross-examination by counsel for Pollock, A admitted to having committed a large number of offences, only some of which had resulted in convictions. He also admitted to having lied to the police, when giving sworn statements as well as at the preliminary inquiry. Following cross-examination, the trial judge permitted counsel for Morrisson to cross-examine A further and adduce evidence that Pollock was a member of the robbery conspiracy. The basis for the ruling was that in cross-examining A on the conspiracy, counsel had adduced the names of the other conspirators, which would leave a misleading impression that Pollock was not a member of the conspiracy.

(e) The “triggerman” comment

[37] Another matter arose at this time. The Crown had disclosed to the defence a statement from a police officer, Albano, who had the initial dealings with A. According, to Albano, A had said Pollock was the “triggerman”. This remark was not contained in any of the various sworn statements A had given the police and had not been mentioned by A during his testimony at the preliminary inquiry. The trial judge told A that it had been indicated that A might have said something about Pollock being the triggerman but that he was not to mention this remark during his further testimony.

[38] During cross-examination by counsel for Morrisson, A testified that he had approached the police with information about the ring because of his fear of Pollock who was a member of the robbery conspiracy. Then, in the course of the cross-examination of A by Pollock’s counsel, counsel asked A if he had told officer Albano anything else about the homicide. At that point, A said that he had but could not disclose it. Crown counsel then intervened and informed the jury that A had been told by the trial judge not to mention the evidence. Over objection by counsel for Pollock, the trial judge ruled that A would be allowed to answer the question on the basis that if the trial judge were to prevent him from answering the question, it would “[look] like the defence of Mr. Pollock [was] being restricted in some way, shape or form”. A then testified that at one of his later meetings with Albano, he told Albano that his “understanding” was that Pollock had “fired the shots”. It is apparent that this was hearsay, and the trial judge instructed the jury that the statement was not admissible for its truth.

[39] In re-examination, Crown counsel was permitted to adduce further evidence of Pollock’s involvement in the robbery conspiracy and to ask further questions about A’s statement that Pollock was the triggerman.

(f) Constable Albano and Pollock’s criminal record

[40] The Crown later called officer Albano. He gave brief evidence about his dealings with A. However, in cross-examination by counsel for Morrisson, Albano testified that he had been requested by officers investigating the murder to pull Pollock over in his car. Without first obtaining a ruling from the trial judge, Morrisson’s counsel asked the officer if he had checked Pollock’s criminal record before stopping him. The trial judge interrupted this line of questioning, and the matter was not further pursued. Counsel for Morrisson also had Albano confirm that A had told him that Pollock had “fired the shots”.

(g) Further evidence of the robbery conspiracy

[41] Evidence about the appellant’s involvement in the robbery conspiracy continued to crop up during the trial. Counsel for Morrisson adduced it when cross-examining one of the officers engaged in surveillance of Pollock. When counsel for Pollock objected to this cross-examination, the trial judge required counsel for Morrisson to leave that area since the evidence was very remote to the guilt or innocence of Morrisson and could unduly prejudice, mislead or confuse the jury. Despite this ruling, Morrisson’s counsel returned to this area when cross-examining a second surveillance officer. When counsel for Pollock objected, the trial judge told counsel to move on to another area.

(h) Foster, the robbery conspiracy and Pollock’s criminal record

[42] Craig Foster also testified about the ring transaction. There were some discrepancies between Foster and A about the transaction, but Foster confirmed Pollock’s comment that it came from the “finger of a guy that was no longer breathing”. In cross-examination, Morrisson’s counsel, again without obtaining a ruling from the trial judge, adduced evidence that Foster was also involved in the robbery conspiracy with Pollock. He also asked Foster if he was aware of Pollock’s “lengthy” criminal record, which included a conviction for robbery. Counsel for Pollock objected and the trial judge directed counsel to move on to another area. Morrisson’s counsel nevertheless briefly returned to the issue. He also adduced evidence from Foster that Foster knew B and suggested that B was supplying Foster and Pollock with drugs.

[43] In cross-examination by counsel for Pollock, Foster admitted to having committed hundreds or thousands of crimes. He also testified that he had not actually seen the ring produced by Pollock.

(i) Morrisson’s drug dealing

[44] The Crown led evidence about Morrisson’s involvement in drug dealing. This evidence came from Morrisson’s initial statements to the police, as well as from a search of Morrisson’s home. Counsel for Pollock cross-examined on this evidence.

(j) Teresa Jones

[45] Before Teresa Jones testified, the trial judge ruled on the admissibility of some of her evidence that related to Pollock’s character. The trial judge held that the Crown could adduce evidence of Pollock’s acts of violence toward Jones to explain her some three-and-one-half-year delay in coming forward to the police. The trial judge also ruled that the Crown could lead evidence of Pollock’s drug dealing to avoid presenting a distorted picture to the jury that only Morrisson was involved in drug dealing, and as part of the narrative.

[46] The trial judge also held that since Morrisson’s counsel would inevitably lead this evidence from Jones in support of his defence, the Crown could lead the evidence of Pollock’s bad character in examination in chief. The trial judge also permitted the Crown to question Jones about a photograph that Jones took that showed B holding a gun, which, according to Jones, belonged to Pollock. This gun was not the murder weapon but the trial judge ruled that Pollock’s possession of guns was relevant, in view of the expected attack on her credibility by counsel for Pollock. The trial judge’s ruling respecting evidence from Jones and B is, in part, as follows:

I adopt [Crown counsel’s] perception that the evidence, principally elicited in the cross-examination of Crown witnesses, has made the association of narcotics and violence with the death of Mr. Weston a significant, if not inescapable, issue.

Mr. Morrisson, [and] important non-professional, non-police witnesses, including Mr. Foster, have all been identified as being associated with the drug sub-culture as will Ms. Jones be if permitted to present her evidence in the disputed areas.

If permitted, they can identify Mr. Pollock’s similar involvements.

I am persuaded at this stage that the proposed evidence of both witnesses is not being offered to show “only” that the accused is the type of person likely to have committed the offence in question.

The disputed evidence of both is relevant to the credibility of each of Ms. Jones and [B]. That credibility may be both demonstrated and tested by their explanations of their relationships with Mr. Pollock including those matters which are in dispute as being issues of Mr. Pollock’s bad character.

As noted, Mr. Pollock will also on the evidence sought to be introduced, be identified as having had involvement in the drug sub-culture. The violence associated with that sub-culture has been relevant and material in this trial. The admission of the disputed evidence will rectify the prospect of a picture being in the minds of the jury which is distorted. Relevance then is not in issue.

Policy reasons to exclude that evidence in-chief ceased to apply. While such evidence is, of course, prejudicial to Mr. Pollock, that prejudice is diminished, in my view, by the expectation that if not the Crown, Mr. Cornale will adduce the same evidence in his cross-examination.

The prejudice to Mr. Pollock is, as has already been stated, that the evidence in question will be misused by the jury. That concern can and will be addressed by a limiting statement at the appropriate stage of the introduction of the evidence and in my charge.

In the result, it is my view that the probative value of the evidence of both Ms. Jones and [B] demonstrably exceeds its prejudicial effect and will be permitted. It must also be limited. [Emphasis added.]

[47] Before Teresa Jones testified, the trial judge reminded the jury of his previous ruling that for policy reasons the Crown could not elicit evidence of Pollock’s bad character but that counsel for Morrisson could do so. However, there was now an exception to that rule in the case of Jones and B. The trial judge then instructed the jury as follows:

I have, as stated, ruled that those policy reasons which would otherwise prevent the Crown from asking Mrs. Jones and [B] questions about their knowledge of matters which relate to the disposition and character of Mr. Pollock, are not applicable to their anticipated evidence.

In the result, and within limits that counsel are aware of, those witnesses may be asked questions by the Crown which relate to issues of character, disposition, propensity and similar of Mr. Pollock that would otherwise be excluded for the policy reasons I have previously referred to.

This ruling makes it very important that you understand that I am referring to the evidence of the character/disposition of Mr. Pollock and the use that you can put to that evidence. You must not use evidence of Mr. Pollock’s character and/or disposition improperly. You cannot use such evidence in a way that might prejudice your ability to fairly and impartially determine the guilt or innocence of Mr. Pollock of the charges in this trial, those being first degree murder and attempted murder, on evidence which is properly applicable to those charges rather than upon the type of person that he is.

The evidence that you will hear which relates to Mr. Pollock’s character/disposition cannot be used by you to convict Mr. Pollock simply because that evidence tends to show that he is by virtue of character issues, likely to have committed the crimes in question.

You cannot use such evidence to convict him of these offences in order to punish him for past acts. You cannot be confused about the use you can put to the character evidence which you will hear by substituting a verdict for the past acts of Mr. Pollock in place of a proper verdict on the charges he now faces.

You cannot, in other words, rely upon evidence that may tend to show that Mr. Pollock is a bad person in order that Mr. Pollock, by virtue of that, is determined by you to be the type of person who would commit the murder and attempted murder, and to conclude, thereby, that he is, in fact, guilty of one or both of the offences charged.

Evidence of Mr. Pollock’s character and/or disposition is not positive evidence of his guilt in relation to these crimes.

Of course, I am in this limiting instruction only referring to evidence of character and disposition that you may hear. Evidence, whether direct evidence or circumstantial evidence which directly bears upon, or is probative of the guilt or innocence of Mr. Pollock of these crimes, is not limited by this warning and can be used and must be tested in the same manner as the evidence of every other witness. Thus, the difference between evidence of the crime which is relevant to the crimes, and evidence which is evidence of character must be understood by you.

Positive evidence relevant to the crimes that you hear from Miss Jones and [B] is not governed by this instruction and will properly form part of the entire body of evidence that you must consider when determining Mr. Pollock’s guilt or innocence of these offences.

However, evidence relevant to Mr. Pollock’s character has been permitted only to assist you more fully and better to assess the validity and credibility of the positive evidence of Teresa Jones and [B] which will be given in this trial.

[48] Teresa Jones first met Pollock when he was still married to another woman. The relationship between Jones and Pollock was marked by violence from Pollock. In August 1993, Pollock had left his wife and Jones moved in with him. Jones testified to a number of assaults on her by Pollock. She also testified that in the house there were always drugs such as cocaine, marijuana and hashish, which they both used.

[49] Jones also testified about Pollock’s relationship with Morrisson. She explained that Morrisson would visit approximately once or twice a week and would often bring drugs with him. The frequency of the visits increased in the two weeks before November 25^th, and Jones overheard them planning a meeting at which Pollock would meet someone whom Morrisson knew. Prior to the meeting, she and Pollock drove around looking for an isolated location for the meeting. She recalled going to an isolated area that seems to match the location of the killing.

[50] On the evening of November 25, 1993, Pollock dressed differently than he usually did, and asked Jones for a pair of gloves. Pollock then left in Morrisson’s Bronco. The Bronco returned about an hour later and dropped Pollock off. Pollock was in a rage; his face, neck and clothing were covered with blood and white pieces of cartilage, as was his gun, which he was waving around. He was concerned about cleaning his gun and talked about burying the gun. He asked Jones to wash his clothing. She asked him if someone had died and he said that it was “really fucking bad”. Pollock also produced $1,000 in $100 bills, some hashish and a big, bulky, gold man’s ring. Pollock said that the ring had come from the body or its finger. Pollock no longer had the gloves that Jones had given him. He was also concerned that prints from his boots were left at the scene. Those boots had disappeared. Pollock told Jones that if anyone asked, she was to say that she had been at home with him that evening, watching a movie. At Pollock’s direction, Jones had rented a movie earlier that day. She was also to say that she had never met Morrisson. Pollock also had said that he had expected to have a large sum of money that evening since the person whom he would meet was “such a dealer”.

[51] Over objection by counsel for Morrisson, the Crown was permitted to lead evidence from Jones that Pollock said, “Dave wimped out. He didn’t do what he was supposed to do”. Counsel for Pollock supported admission of the evidence. In light of the ruling allowing the evidence, Morrisson sought severance. The application was dismissed. The trial judge cautioned the jury that this statement was only evidence against Pollock.

[52] Jones also testified about her relationship with B. She and the appellant usually saw B on a daily basis, generally for the purpose of obtaining cocaine from him. She identified a photograph of B with a handgun similar to a gun that Pollock owned. The gun with which Pollock had come home on the night of November 25^th was not the gun in the photograph. A couple of days after November 25^th, she, B and Pollock went to Toronto. Pollock had a bag with him that she suspected contained the gun with which Pollock had come home on November 25^th. B went into an apartment building with the bag and returned with some crack cocaine but without the bag.

[53] In April 1994, Jones and Pollock moved to Vancouver. In early June 1994, Pollock was arrested for conspiracy to commit robbery and brought back to Ontario. Jones eventually returned to Ontario in order to assist Pollock in getting bail on that charge. In her testimony at the bail hearing, she said that Pollock never assaulted her and did not use drugs or sell drugs, all of which was untrue. By September 1994, the relationship between Jones and Pollock had ended. Pollock, however, was stalking her and occasionally assaulting her. Her last encounter with Pollock was in October 1994 when she was out walking. Pollock confronted her and then beat her very badly. She refused to lay charges against Pollock because she was afraid of him.

[54] In January 1996, a police officer showed Jones a picture of a ring. The ring resembled the one Pollock had with him on November 25^th, but Jones told the officer she had never seen it. Around the same time, Jones was charged with trafficking in cocaine. She pleaded guilty in February 1997 and received four months imprisonment.

[55] A few days before her parole hearing, Jones asked to speak to one of the officers involved in the murder investigation. She told the officer that she knew things about the murder and would provide information in exchange for help on her parole application. The officer agreed to try to help, and Jones gave a video statement to the police in March 1997. She testified that she had not come forward earlier because she was afraid of Pollock. He was now in custody, as of February 1996. She testified that Pollock had threatened her and threatened to hurt her family. She was also afraid of people with whom Pollock associated, especially one Fred Cartier who was a member of the Satan’s Choice motorcycle gang. She estimated that Pollock had assaulted her about thirty times. Counsel for Pollock objected when Crown counsel led evidence of some of the specific incidents. The trial judge curtailed further examination on the incidents except to permit Jones to testify about two incidents when Pollock held a gun to her head.

[56] In cross-examination, counsel for Morrisson adduced further evidence of the assaults by Pollock and his use of cocaine. Counsel for Pollock objected when Morrisson’s counsel began to cross-examine Jones on individual incidents. Morrisson’s counsel argued that this evidence was necessary to explain why Morrisson lied to the police. There was no evidence that Morrisson was aware of any of the assaults by Pollock on Jones. Morrisson’s counsel also now sought to use this evidence to bolster A’s evidence as to why he entered the witness protection programme.

[57] The trial judge ruled that Morrisson’s counsel could cross-examine Jones on the various incidents. He ruled in part as follows:

Mr. Kerbel objects to the line of questioning taken in the cross-examination of Ms. Jones by counsel for Mr. Morrisson. The grounds of the objection are four-fold.

Firstly, Mr. Cornale seeks to elicit from Ms. Jones evidence of Mr. Pollock’s relationship with her which were unknown to Mr. Morrisson or said to be unknown to Mr. Morrisson. Occurrences which were unknown by this argument cannot be appropriately used to address Mr. Morrisson’s own relationship with Mr. Pollock and his alleged parallel experiences. I reject this. To the extent that persons involved in relationships with Mr. Pollock in which fear is allegedly a predominant factor, based on awareness of the potential of Mr. Pollock to act out is relevant to what we are told is the heart of the theory of the defence of Mr. Morrisson.

While it is clear that this theory may change, the evidence is admissible on this basis at this stage of the proceedings and cross-examinations will not be curtailed on this ground.

Secondly, at the end of the day it would be impossible for the jury not to misuse the evidence, whatever limiting instructions that I give to it. This is essentially the same argument as was previously rejected by me when the rights of Mr. Morrisson to explore and issues related to Mr. Pollock’s character were first raised during the cross-examination of [A]. I rejected this argument at that time. I take the same position now.

Thirdly, the line of questioning will engage us in this trial in time-consuming investigation of a series of incidents in which for that very reason, the Crown was restricted by me. Mr. Morrisson should be similarly restricted by this argument.

In my earlier ruling today, I indicated that the Crown could “paint the issues with broad brush strokes.”

I continued that I did not intend to engage in a series of mini-trials before the jury. I reserve the right to revisit the Crown’s rights in re-examination after seeing how the cross-examination unfolds. I do not see that the questions asked of this witness in cross-examination by Mr. Cornale thus far have been at all time consuming or excessive. Mr. Cornale has addressed many events, but he has not done so in a manner which has thus far engaged in time-consuming detail which serves no purpose.

Finally, Mr. Kerbel makes the point that the jury has the point. In my view, counsel must determine how to best serve the interests of their clients within the rules which address criminal trials.

Without being critical because counsel are engaged in full answer and defence issues, I am certain that some issues have been repeatedly addressed in cross-examination on behalf of Mr. Pollock. No one thus far has indicated that some of those “points” have already been made and that, therefore, further cross-examination on those points must end. I do not intend to limit Mr. Cornale’s right to fully address the interests of his client based upon this final ground. [Emphasis added.]

[58] Counsel for Morrisson then asked Jones questions about several of the most violent incidents. These incidents resulted in various injuries to Jones, including broken bones. Jones also described incidents in which Pollock damaged property.

[59] Counsel for Morrisson also asked Jones whether Pollock would have reacted violently if he had heard rumours on the street that Jones had been sleeping with Weston. Counsel for Pollock objected and the objection was upheld.

[60] In cross-examination by counsel for Pollock, Jones confirmed that when Morrisson visited their house the atmosphere was casual and relaxed, and there was no indication that Morrisson feared Pollock. Counsel for Pollock also extensively cross-examined Jones on various letters she had written to Pollock during his incarceration, which suggested her continued love for him.

(k) B and disposal of the handgun

[61] B was 32 years of age at the time of trial. Like A, publication of his identity was prohibited. He testified that in the fall of 1993, Pollock and Jones came to his apartment. Pollock said he had something to show B in private. The two of them went into another room where Pollock unwrapped a towel to reveal a black 357 handgun with a wooden handle. There were marks all over the gun, as if it had been dropped in gravel, and the marks, as well as the grooves in the handle, were filled with brown and red stains that B assumed to be blood. Pollock asked B if he could get rid of the gun and said it had been “used”. B agreed to do so, and they returned to Jones’s car and drove to Toronto. They drove to the Jane-and-Black-Creek area of Toronto where B went to an apartment and met with someone named “Jackie” who lived with “O.J.”. Jackie gave B $100 for the gun, which B kept because Pollock owed B money from a previous drug transaction.

[62] B was arrested in March 1994 for drug offences. The officers used the arrest as an opportunity to question B about the Weston murder, and told B that Pollock was under investigation for the murder. B said that he knew Pollock but knew nothing about his connection to the murder. After he was released from the police station, B returned to his apartment. He then decided to call the police and tell them about the transaction with Pollock and the gun. B made a statement to the police after telling the police that he would need protection. B then agreed to talk to Pollock. B had several conversations with Pollock but did not obtain any inculpatory statement from him except an inquiry from Pollock about what he had told the police. B also made attempts to obtain the gun from O.J., but without success. B had a criminal record for, among other things, various drug and theft charges. He testified that he entered the witness protection programme in 1994.

(l) Questioning B about Pollock’s “lengthy” criminal record and criminal associations

[63] As mentioned above, counsel for Morrisson asked B whether he was aware of Pollock’s lengthy criminal record, as well as Pollock’s criminal involvement and associates. Counsel for Morrisson also led evidence from B that B believed that by providing information to the police his life would change, and that he had a grave fear of retribution from Pollock and other persons, including bikers. Over objection from counsel for Pollock, counsel led evidence that B had received a call from one Silvain who had told him not to give evidence against Pollock and that the word on the street was that B was “the rat on the murder”. The trial judge eventually intervened and upheld the objection as there was no evidence of any connection between Silvain and Pollock. The trial judge instructed the jury to disregard this evidence.

(m) Other evidence of Pollock’s criminal record

[64] Morrisson’s counsel also asked Perrin, one of the lead investigating officers, whether he was aware that Pollock had a lengthy criminal record. Counsel for Pollock objected and counsel agreed to move on to another topic. He then cross-examined Perrin on whether he was aware of Pollock’s “background with guns and for violence”. To mitigate the prejudice caused by this cross-examination, counsel for Pollock adduced some of the details of Pollock’s actual criminal record, namely that he had four convictions including only one custodial disposition, the last of which was in 1983. Perrin added, however, that there were “other entries” in the record. In the presence of the jury, Crown counsel then argued that Pollock’s counsel should be required to go through “each and every entry”. The jury was excused and in the end the trial judge refused to make such an order. It appears that Crown counsel wanted to force counsel for Pollock to set out the details of the record such as each actual offence and the sentence imposed.

(n) Police officers’ opinions of Pollock’s character

[65] Counsel for Morrisson asked a number of police officers their opinion of Pollock. He asked Detective McMillan whether it became very clear during the investigation that numerous witnesses expressed “great fear and concern” about Pollock. He also asked McMillan if A’s main reason for entering the witness-protection programme was his fear of Pollock. Counsel for Pollock objected to both questions and the trial judge ruled that the questions invited hearsay answers. Counsel for Morrisson also established that McMillan did not carry his service revolver when off duty except when Pollock was out of custody. Counsel for Morrisson also asked McMillan and Detective Perrin whether they took their guns with them when they went to Vancouver to bring Pollock back to Ontario. He asked Detective Waller if he was aware of B’s “ongoing fear” of Pollock. Again counsel’s objection was upheld. Counsel also attempted to have Waller testify about Morrisson’s fear. Waller testified that the only fear of which he was aware related to the Arizona ploy.

[66] Counsel for Morrisson asked Waller whether, around the time of the arrest of B, B was aware that Pollock was making inquiries about the homicide. The trial judge warned counsel not to ask questions calling for inadmissible evidence. Counsel then asked questions about the robbery conspiracy and the police surveillance of Pollock. He asked similar questions of Detective Perrin and also suggested that when Pollock was arrested in Vancouver, he was running from the police. The trial judge upheld Pollock’s counsel’s objections to these various questions.

[67] Morrisson’s counsel also asked questions of Perrin about Pollock’s character, such as whether he was a self-destructive person. He also asked whether Jones, A, B and Foster were in grave fear for their life in giving evidence. Counsel for Pollock objected and the trial judge upheld the objection.

[68] Before Jones testified, counsel for Morrisson asked McMillan whether he was aware from a family member of Jones that Jones was in hospital after having been badly beaten by Pollock. Counsel for Pollock objected and the trial judge ruled that the question called for a hearsay answer and was highly prejudicial.

(o) Morrisson’s arrest

[69] Morrisson was arrested in February 1995. His counsel attempted to lead evidence from one of the arresting officers of statements Morrisson made at the time. The Crown objected and the trial judge ruled that Morrisson’s counsel could not lead this evidence. The officer did agree that Morrisson was very cooperative. As a result of this evidence, counsel for Pollock attempted to lead evidence from the officer that Morrisson had refused to take a polygraph test on two occasions. The trial judge refused to admit this evidence.

[70] Morrisson was released on bail and over the next two years had short but frequent conversations with one of the investigating officers who suggested to Morrisson that Morrisson knew more about the killing than he had said in his first statement on November 26, 1993. Counsel for Morrisson attempted to lead evidence about a videotaped statement that Morrisson gave to the police on July 15, 1997. Crown counsel objected and the trial judge ruled that counsel could not ask about the statement.

8. Morrisson’s evidence

[71] Morrisson was 34 years of age at the time of the trial. Sometime around 1992, he began to work for Terry McLean. He first met McLean in 1990, who offered to sell hashish to him. At some point, McLean asked Morrisson to drive back and forth to Montreal for him to pick up multi-kilo loads of hashish. Morrisson did this once a month, or more frequently, for about one-and-one-half years. Morrisson described himself as McLean’s right-hand man during this period. According to Morrisson, a man named Eddie Wilkinson was a major drug importer and was higher on the drug scale than was McLean. Morrisson obtained hashish from Wilkinson for McLean and delivered money to Wilkinson from McLean.

[72] Through a friend, Morrisson learned that Weston, who was also selling hashish, no longer had a supplier for drugs. Morrisson therefore arranged for McLean to supply hashish to Weston. As a result, Weston and Morrisson became friends. Weston ordered increasingly large amounts of hashish from McLean through Morrisson. Weston would pay Morrisson for the hashish. At some point, Weston asked to meet McLean so that he could negotiate a better price for the hashish he was buying. McLean agreed and Morrisson arranged the meeting. Thereafter, while Morrisson was still the go-between for delivery of drugs and money, Weston negotiated his own price.

[73] Morrisson first met Pollock some time after he met McLean. Despite objection from counsel for Pollock on the basis that it was hearsay, Morrisson described Pollock as McLean’s bodyguard or chief of security, who was always with McLean. According to Morrisson, McLean often travelled with large sums of money and therefore needed someone who was armed to be with him. Pollock also occasionally went to Montreal to pick up drugs.

[74] Morrisson testified that McLean had told him that Pollock had a 357-magnum handgun. Morrisson also believed that Pollock owned a .22 revolver and a shotgun. This evidence was adduced by Crown counsel. Pollock’s counsel objected to the Crown’s questions about whether Pollock carried a gun, on the basis that this evidence was hearsay.

[75] About one month after the meeting between Weston and McLean, a problem developed. According to Morrisson, McLean was not supplying pure hashish and Weston’s customers rejected it. McLean replaced the hashish, but Weston believed it was no better and demanded his money back in the amount of $24,000. McLean refused. This was early 1992.

[76] In 1992, McLean’s supply of hashish dried up and Morrisson stopped working for him. He began to acquire drugs from other suppliers, including Weston, who had access to good-quality marijuana from Arizona. As well, Pollock stopped acting as McLean’s bodyguard.

[77] Nevertheless, over the ensuing year, Morrisson arranged several meetings between McLean and Weston to try and resolve the $24,000 debt. McLean claimed to have no money. Ultimately, McLean told Weston that he had invested in a large shipment of hashish that was to arrive by ship in the summer of 1993. After that, McLean would repay Weston. However, McLean later told Morrisson that the shipment had been detected and the authorities seized 18,000 kilograms of hashish.

[78] After this seizure, about a week before the shootings, Morrisson arranged a meeting at Weston’s insistence. At the meeting, McLean said that he would not have the money to pay Weston. Weston was irate and the two men almost came to blows. Weston then proposed a solution. Weston would “front” a kilogram of cocaine to McLean who could sell it, thereby quickly generating some cash. Morrisson testified that he was aware that Pollock would sell cocaine, and that Pollock could sell the cocaine for McLean. McLean and Morrisson then went to see Pollock and Pollock agreed to sell the cocaine. It was agreed that as soon as Weston called Morrisson and advised him that the cocaine was available, Morrisson would take Pollock to meet Weston and complete the deal.

[79] On the evening of November 25, 1993, Weston called Morrisson and asked him to meet him at Smith’s house before 9:00 p.m., or thereafter on their walking route, with which Morrisson was familiar. Morrisson was unsure of whether the purpose of the meeting was just for Pollock to meet Weston, or for Weston actually to bring the cocaine. Morrisson also intended to take the opportunity to pay Weston back some money he owed him. Weston fell asleep and only awoke around 9:00 p.m. He then drove to Pollock’s house and picked him up around 9:30 p.m. Curiously, Morrisson testified that he did not know whether Pollock was aware of the meeting and did not even know if Pollock would be home when he went to his house. Morrisson drove to Smith’s house after picking up Pollock but as the house was dark he drove Weston’s walking route but did not find him. He then drove to a spot on the route and waited in the truck for Weston. Pollock left the vehicle, supposedly to urinate.

[80] A short time later, Morrisson heard a noise from behind the truck and assumed Weston and Smith were approaching. Morrisson left the vehicle and walked around to the rear of the truck. At that point, Pollock came out from behind a tree and fired two shots, one of which hit Smith, who fell to the ground. Weston turned and ran. Pollock fired two more shots and chased Weston, continuing to shoot at him. Weston and Morrisson were yelling. Morrisson then heard a series of blows and thuds. Morrisson initially froze and then returned to the truck. At first he had trouble finding his keys. By then Pollock had re-entered the truck. He had a gun in his right hand and was extremely agitated. Pollock told Morrisson to drive. Morrisson asked Pollock, “what the fuck is your problem? What did you do?” Pollock just told Morrisson to drive and held the gun to Morrisson’s side. Morrisson said he was in shock and afraid, and drove off. He asked Pollock why he had done it and Pollock told him to check with McLean and that Morrisson was supposed to know. Pollock told Morrisson to take him home. Morrisson claimed that he was unaware that Pollock had been armed. Morrisson dropped Pollock off at his home. Pollock told Morrisson to keep his mouth shut.

[81] According to Morrisson, while he and Pollock were driving to Pollock’s house after the shooting, Pollock dropped Weston’s ring on the floor of the truck. Pollock picked it up and said it was some kind of “proof”.

[82] Later that night Morrisson tried to reach McLean but was unsuccessful. The next day he reached McLean who agreed to meet him. At the meeting, Morrisson complained that McLean had again put him in the middle of a situation. McLean told Morrisson to shut up, and that Pollock had done what he was paid to do. Morrisson was concerned because the news reports of the killing indicated that the police had a description of his truck. He said that he wanted to speak to a lawyer. McLean suggested that he speak to Allan Mintz, a lawyer McLean claimed to have on retainer. McLean told Morrisson to keep his mouth shut and said that he could make it look very bad for Morrisson and that he knew where Morrisson lived. Morrisson was very concerned about this comment because of what he had just witnessed.

[83] Also on the morning of November 26^th, Morrisson noticed and removed blood from the passenger side of the truck. Morrisson denied that he had removed the licence plates from the truck prior to driving to the meeting with Weston.

[84] After the meeting with McLean, Morrisson drove to Mr. Mintz’s office and waited for approximately five hours, until Mintz arrived. He then told Mintz everything that had happened. Mintz said that he had already spoken to McLean. Mintz told Morrisson that he, Morrisson, was just a witness and that he should speak to the police but should not mention any names and should not allow himself to be pinned down. Morrisson asked how he could tell the police what had happened without mentioning names. Mintz told him he was a smart guy and would figure it out and reminded him that it was very dark on the road where the shooting took place. Mintz called the Halton police and told an officer that his client was the driver of the Bronco. He set up a meeting at a doughnut shop at 6:30 p.m.

[85] Morrisson drove to the doughnut shop but Mintz was not there. While he waited, he was approached by two police officers. They waited for about two hours for Mintz. While they waited, Morrisson said that he had witnessed the events of the previous evening. Finally, the police said they would interview Morrisson the following day, but asked him to bring his truck to the police station that evening. He did so and while there, Mintz called and spoke to one of the officers and then to Morrisson. Mintz told Morrisson he had been held up, and that he was just to tell the police what they had discussed earlier and everything would be fine. Morrisson then gave a version of events which, as he conceded at trial, was not complete. Morrisson left the truck and his clothing with the police. He also offered to provide any further information they might need about the drug sub-culture. Morrisson testified that his only choices at that time were to lie to the police and walk away from the problem, or to tell the truth and be killed by McLean or Pollock. However, he also testified that the reason he did not give the names to the police was because of the advice from Mr. Mintz.

[86] The following day, McLean asked to meet Morrisson. At Morrisson’s insistence they met in a public place. McLean wanted to know what Morrisson had told Mintz and the police. Morrisson assured McLean that he had not mentioned McLean’s nor Pollock’s name.

[87] A few days later, Pollock also asked to meet with Morrisson. Again Morrisson agreed to meet him in a public place. During the brief meeting, Pollock asked many of the same questions and Morrisson assured him that he did not ‘rat him out’. Pollock told Morrisson that if he kept his mouth shut everything would be fine. Morrisson met with Pollock again in January 1994 after Pollock called him and said that the police had been asking questions about him, Pollock. Morrisson again assured Pollock that he had not mentioned Pollock’s nor McLean’s name. Pollock told Morrisson he would remain alive as long as he kept his mouth shut.

[88] Morrisson testified that during the trial he overheard Pollock threatening him; specifically, Morrisson testified that Pollock called Morrison a “weasel” and said he would choke Morrisson if he had the chance.

[89] Morrisson testified that he did not know where McLean was, but he continued to fear him. He believed that McLean had killed another drug dealer who owed McLean a large amount of money. Morrisson denied that it was McLean, not Pollock, who was with him at the time of the shooting of Weston and Smith.

(9) Cross-examination of Morrisson on the “letters” to Pollock

[90] Counsel for Pollock vigorously cross-examined Morrisson. That cross-examination included questions designed to show that Morrisson had lied about his background during his examination-in-chief. Counsel for Pollock showed Morrisson a document (later to become Exhibit 91). At first, Morrisson testified that he did not recognize it and denied writing it. After Crown counsel had cross-examined Morrisson, counsel for Pollock was permitted to cross-examine Morrisson on Exhibit 91 further. By this time, a handwriting analysis had established that Morrisson had written the document, a letter to Pollock. Morrisson maintained the position that he did not remember writing the letter but accepted that he must have done so. The document was obviously written after the pre-trial motions. In it, Morrisson suggests that Pollock should take the position that he was on drugs and only intended to rough up Weston on McLean’s orders and therefore is guilty of manslaughter. Otherwise, according to Morrisson, both of them would be convicted of first-degree murder. Morrisson promises to take care of Pollock with money and a job waiting for him when he gets out of jail. He also instructs Pollock to give the notes back to him since “I won’t feel safe until I have destroyed them personally.” The letter concludes with the following:

So we have come full circle my friend. We used to trust each other more than we trusted our own wives. I have no ill-will towards you. I know I ratted you out. Where did it get me? The cops, the Crown, my lawyer, my family, everybody wanted me to, I just wish I had just listened to my heart and shut up. Too late for that now. What’s done is done. I do not want to take the stand and neither should you. We have to take this out of the hands of the jury or we’ll be crucified. If you wait till its your turn to testify it will be too late. You must come forward now while it is still salvageable. Take it easy, man. I know you have heavy things to think about. I’ll get you some herb a.s.a.p. to make the thinking easier!! Please know that I think about you all the time, and I always have a good thought for you.

[91] Morrisson testified that the document was nothing more than notes to himself but he could not say why he wrote it. Morrisson was then shown a second document (Exhibit 92). Once again he did not recall writing it. Like the first document, it is also addressed to “Rob”. In the document, Morrisson explains that they have two choices. Choice number one is that they both go their own way and rely on their lawyers. The second choice is that Pollock alone takes responsibility for the crime, claims he was on cocaine and alcohol, did not mean to kill anyone and only wanted to rough him up a bit, and that Morrisson did not know anything about it and only tried to cover up afterwards. The letter includes the following:

There are huge things shaping up if this ends sometime soon. I know it sucks being in there but a little more time is better than a lot more time Rob. All I can do is give you my word that I will make things right between us out here. Don’t gamble with the next 25 yrs. of both our lives with an all or nothing attitude. … Please return this to me on Tues. Jan 27/98. It will be the only present I want for my birthday.

[92] Morrisson denied giving the documents to Pollock but could not explain how they came into Pollock’s counsel’s possession.

10. Evidence of Allan Mintz

[93] Pollock did not testify. He did, however, call Mr. Mintz as a defence witness. He testified that when Morrisson came to his office on November 26, 1993, Morrisson was visibly upset, distraught and panicked. He said that his life and family were ruined. He said he had witnessed a shooting. He had gone to a remote area of Burlington to meet his drug supplier and when he left his truck the shooting occurred. Mr. Mintz told him he was just a witness and had nothing to worry about. Morrisson explained that the media had broadcast a description of his vehicle and that the police would find him. He also explained that he was concerned that his involvement in drug trafficking would become known. Morrisson did not mention either Pollock or McLean, nor did he say that they had threatened him. Mintz denied advising Morrisson to lie to the police.

[94] Mintz arranged for Morrisson to meet with the police. He explained that he did not make the meeting at the doughnut shop because he apparently went to the wrong one. Mintz met with Morrisson several times after this first meeting. Morrisson never said that he had lied to the police.

THE POLLOCK APPEAL

1. Unfair trial

Positions of the parties

[95] Pollock’s principal ground of appeal is that the trial was manifestly unfair to him. He submits that this unfairness stems from the trial judge’s rulings that permitted Morrisson to introduce highly prejudicial evidence. He argues that much of the evidence that entered the trial on the theory that it was necessary for Morrisson to make full answer and defence was not admissible for that purpose. Pollock also argues that the trial was unfair because of the conduct of counsel for Morrisson who repeatedly introduced inadmissible and highly prejudicial evidence.

[96] The Crown provides three arguments in response to Pollock’s submission that the trial judge erred in permitting Morrisson to introduce the allegedly prejudicial evidence. First, the Crown says that at the joint trial Morrisson had the right to make full answer and defence, including adducing evidence of Pollock’s violent disposition to support the theory that Morrisson lied to the police out of fear of Pollock. Second, the Crown submits that the nature of Pollock’s defence made this evidence admissible. Third, the Crown says that the trial judge properly balanced Morrisson’s right to make full answer and defence with Pollock’s right to a fair trial by giving complete and correct instructions about the limited use to be made of the propensity evidence. As to the alleged improper cross-examination by Morrisson’s counsel, the Crown concedes that some of counsel’s comments and questioning were inappropriate. However, much of the questioning was disallowed and ruled inadmissible, and the jury was told to ignore the questions or comments. Thus, any inappropriate questioning by Morrisson’s counsel did not render the trial unfair.

2. Analysis

(a) Introduction

[97] At the root of Pollock’s ground of appeal and the Crown’s response is the question of the right of one accused to attack the character of a co-accused. Morrisson’s counsel justified the introduction of evidence highly prejudicial to Pollock on the theory that the evidence was necessary to ensure that Morrisson received a fair trial and was able to make full answer and defence. To deal with this issue I intend to review the rules respecting the admissibility of character evidence briefly. I will then consider the application of those rules to a joint trial. Finally, I will apply the law to the facts of this case.

(b) The admissibility of character evidence

[98] A succinct statement of the relevancy of character evidence may be found in R. v. McMillan (1976), 23 C.C.C. (2d) 160 (Ont. C.A.), affirmed (1977), 33 C.C.C. (2d) 360 (S.C.C.), at 167, where Martin J.A. wrote: “The tendency or disposition of a person to do a certain act is relevant to indicate the probability of his doing or not doing the act.”

[99] The law has, however, for a long time recognized the dangers of a trier of fact, especially the lay triers in a jury, relying upon this evidence. In R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 (S.C.C.) at paragraphs 37, 39 and 40, Binnie J. summarized some of the dangers of relying upon evidence of the bad character, propensity or disposition of an accused in relation to the similar fact rule, a form of character evidence:

The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value. It ought, in general, to form no part of the case which the accused is called on to answer. It is excluded notwithstanding the general rule that all relevant evidence is admissible … .

It is, of course, common human experience that people generally act consistently with their known character. We make everyday judgments about the reliability or honesty of particular individuals based on what we know of their track record. If the jurors in this case had been the respondent's inquisitive neighbours, instead of sitting in judgment in a court of law, they would undoubtedly have wanted to know everything about his character and related activities. His ex-wife's anecdotal evidence would have been of great interest. Perhaps too great, as pointed out by Sopinka J. in B. (C.R.), supra, at p. 744:

The principal reason for the exclusionary rule relating to propensity is that there is a natural human tendency to judge a person's action on the basis of character. Particularly with juries there would be a strong inclination to conclude that a thief has stolen, a violent man has assaulted and a pedophile has engaged in pedophilic acts. Yet the policy of the law is wholly against this process of reasoning.

The policy of the law recognizes the difficulty of containing the effects of such information which, once dropped like poison in the juror's ear"swift as quicksilver it courses through the natural gates and alleys of the body": Hamlet, Act I, Scene v, ll. 66-67. [Emphasis added.]

[100] For these reasons, evidence of the accused’s disposition is presumptively inadmissible. As Binnie J. said in Handy at para. 64, “disposition evidence could unusually and exceptionally be admitted if it survives the rigours of balancing probative value against prejudice”. Binnie J. returned to the question of prejudice later in the Handy case and summarized the two types of prejudice: moral prejudice and reasoning prejudice. He explained moral prejudice in this way at para. 139:

It is frequently mentioned that "prejudice" in this context is not the risk of conviction. It is, more properly, the risk of an unfocussed trial and a wrongful conviction. The forbidden chain of reasoning is to infer guilt from general disposition or propensity. The evidence, if believed, shows that an accused has discreditable tendencies. In the end, the verdict may be based on prejudice rather than proof, thereby undermining the presumption of innocence enshrined in ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.

[101] He explained the reasoning prejudice in this way at paras. 144-46:

The major issue here is the distraction of members of the jury from their proper focus on the charge itself aggravated by the consumption of time in dealing with allegations of multiple incidents involving two victims in divergent circumstances rather than the single offence charged.

Distraction can take different forms. In R. v. D. (L.E.) (1987), 20 B.C.L.R. (2d) 384, McLachlin J.A. (as she then was) observed at p. 399 that the similar facts may induce

in the minds of the jury sentiments of revulsion and condemnation which might well deflect them from the rational, dispassionate analysis upon which the criminal process should rest.

Further, there is a risk, evident in this case, that where the "similar facts" are denied by the accused, the court will be caught in a conflict between seeking to admit what appears to be cogent evidence bearing on a material issue and the need to avoid unfairness to the right of the accused to respond. The accused has a limited opportunity to respond. Logistical problems may be compounded by the lapse of time, surprise, and the collateral issue rule, which will prevent (in the interest of effective use of court resources) trials within trials on the similar facts. Nor is the accused allowed to counter evidence of discreditable conduct with similar fact evidence in support of his or her credibility (as discussed in Sopinka, Lederman and Bryant, supra, at §11.74). Thus the practical realities of the trial process reinforce the prejudice inherent in the poisonous nature of the propensity evidence itself.

[102] Even where one accused has been properly permitted to lead evidence of a co-accused’s character, the Crown is not entitled to rely upon that evidence as proof of guilt. Doherty J.A. expressed the policy reasons for this rule in R. v. Suzack (2000), 141 C.C.C. (3d) 449 (Ont. C.A.), leave to appeal to the Supreme Court of Canada dismissed [2000] S.C.C.A. No. 583, at para. 116:

It is a fundamental tenet of our criminal justice system that criminal culpability depends on the Crown's ability to prove beyond a reasonable doubt that the accused committed the specific act alleged in the indictment. It has been established for over 100 years that the Crown cannot make its case by showing that the accused engaged in misconduct other than that alleged against him for the purpose of showing that the accused was the type of person who would commit the crime alleged. Makin v. The Attorney General for New South Wales, [1894] A.C. 57 (P.C.) at 65. Propensity evidence and the reasoning that it invites imperil this fundamental tenet by inviting conviction based on the kind of person the accused is shown to be or based on acts other than those alleged against the accused: R. v. D. (L.E.) (1989), 50 C.C.C. (3d) 142 (S.C.C.) at 161-162. I would not discard a rule that is so central to an accused's right to a fair trial to further a co-accused's right to make full answer and defence. [Emphasis added.]

[103] Where the accused seeks to admit evidence of the violent disposition of a third party, other than a co-accused, some of the policy reasons for excluding the evidence at the instance of the Crown are attenuated. Martin J.A. dealt with this issue in R. v. Scopelliti (1981), 63 C.C.C. (2d) 481 (Ont. C.A.) at 493, a case involving the right of an accused who relied on self-defence to adduce evidence of other acts of violence by the deceased, even acts that were unknown to the accused:

We were not referred by counsel to any Canadian or Commonwealth decision on the question of the admissibility of evidence of the deceased's character (disposition) for violence, not known to the accused, as evidence of the probability of the deceased's aggression where self-defence is raised as an issue. However the admission of such evidence accords in principle with the view expressed by this Court that the disposition of a person to do a certain act is relevant to indicate the probability of his having done or not having done the act. The law prohibits the prosecution from introducing evidence for the purpose of showing that the accused is a person who by reason of his criminal character (disposition) is likely to have committed the crime charged, on policy grounds, not because of lack of relevance. There is, however, no rule of policy which excludes evidence of the disposition of a third person for violence where that disposition has probative value on some issue before the jury: see R. v. McMillan (1975), 23 C.C.C. (2d) 160 at p. 167, 7 O.R. (2d) 750, 29 C.R.N.S. 191; affirmed, 1977 19 (SCC), 33 C.C.C. (2d) 360, 73 D.L.R. (3d) 759, [1977] 2 S.C.R. 824; R. v. Schell and Paquette (1977), 33 C.C.C. (2d) 422 at p. 426. [Emphasis added.]

[104] However, the policy rules that generally preclude admission of evidence of the accused’s bad character at the instance of the Crown re-emerge where one accused seeks to lead the evidence against a co-accused. As where the Crown seeks to lead the evidence, there is a risk that the evidence will be unduly prejudicial because the jury will attach too much weight, in relation to its probative value, to the evidence led by one accused against a co-accused. There are also the concerns that the evidence may unduly distract from the issues, be too time-consuming in relation to its probative value, or unfairly surprise the accused against whom the evidence is led.

[105] Accordingly, since evidence of propensity or bad character can carry a very grave risk of prejudice to the fair trial of the accused against whom the evidence is led, it is incumbent on the trial judge to examine closely the probative value of the evidence and the purposes for which the evidence is tendered. In my view, in a joint trial, counsel’s mere assertion that the evidence is necessary for the accused to make full answer and defence is not sufficient given the grave potential for prejudice to the fair trial of a co-accused. There must be some evidentiary foundation to support this assertion. That foundation may come during the Crown’s case through evidence of Crown witnesses in chief or through cross-examination. In some cases, the evidentiary foundation may not be laid until the defence case. If so, the prejudicial character evidence would only be admissible, if at all, at that time. The need for this evidentiary foundation is not simply to avoid irrelevant evidence entering the record. An evidentiary foundation is essential to ensure fair management of the trial. The need for the highly prejudicial evidence can be properly assessed only when the accused demonstrates through evidence the contours of the defence. Until then, the trial judge is left to speculate on the importance and necessity of this evidence.

[106] In deciding whether to admit evidence on behalf of one accused of the co-accused’s disposition, the trial judge is required to balance the fair trial-rights of the two accused. In some cases, the trial judge will conclude that a fair balance cannot be struck within the confines of a single trial and the judge will grant severance. In most cases, however, it should be possible to balance the fair trial rights of both accused.

[107] In Suzack at para. 111, Doherty J.A. explained the trial judge’s duty to balance the rights of co-accused in a joint trial:

Where accused are tried jointly, each is entitled to the constitutional protections inherent in the right to a fair trial. Those protections include the right to make full answer and defence and the right to be shielded from evidence which unfairly prejudices an accused. An accused's right to a fair trial does not, however, entitle that accused to exactly the same trial when tried jointly as the accused would have had had he been tried alone: R. v. Crawford, supra, at pp. 497-98; R. v. Pelletier (1986), 29 C.C.C. (3d) 533 (B.C.C.A.). In joint trials, one accused may elicit evidence or make submissions in support of his defence that are prejudicial to the other accused and could not have been elicited or made by the Crown. In those cases, the respective rights of each accused must be balanced by the trial judge so as to preserve the overall fairness of the trial. In Crawford, supra, Sopinka J. said, at p. 498:

I have gone to some length to stress that Charter rights are not absolute in the sense that they cannot be applied to their full extent regardless of the context. Application of Charter values must take into account other interests and, in particular, other Charter values which may conflict with their unrestricted and literal enforcement. This approach to Charter values is especially apt in this case, in that the conflicting rights are protected under the same section of the Charter.

[Emphasis added.]

[108] One way in which the trial judge will balance the rights of co-accused is by instructing the jury as to limitations on the use of evidence. In Suzack, Doherty J.A. explained how the trial judge was required to instruct the jury that evidence of the propensity of the accused adduced by the co-accused was admissible to raise a reasonable doubt on behalf of that co-accused but could not be used by the Crown to prove the guilt of the accused. A similar solution was adopted in R. v. Crawford (1995), 96 C.C.C. (3d) 481 (S.C.C.), referred to in the above quotation, where the Supreme Court held that while an accused could lead evidence of the co-accused’s silence upon arrest, the trial judge was required to instruct the jury that the evidence was relevant only to the accused’s credibility (the co-accused’s testimony implicated the accused) and was not evidence of the co-accused’s guilt.

[109] Where the Crown seeks to adduce character evidence of an accused, as with similar fact evidence, the probative value of the evidence must outweigh its prejudicial effect. The balancing is different where one accused seeks to introduce character evidence of a co-accused. The power to exclude relevant evidence adduced by an accused is narrower: R. v. Seaboyer, [1991] 2 S.C.R. 577. It would seem that the evidence is admissible unless its prejudicial effect substantially outweighs its probative value.

[110] In this case, the trial judge did place limits on the use the jury could make of the propensity evidence adduced by Morrisson. However, in my view, in balancing the interests of Morrisson and Pollock the trial judge also had a duty to ensure that Pollock’s right to a fair trial was not overwhelmed by the admission of propensity evidence that Morrisson asserted was necessary for him to make full answer and defence. The trial judge could only have protected Pollock’s right to a fair trial by ensuring that the evidence Morrisson sought to introduce was probative of a live issue in the case, and by ensuring that the prejudicial effect of that evidence did not substantially outweigh its probative value. I will now turn to that issue.

(c) Application of the rules to this case

[111] The policy reasons for excluding evidence of the disposition of an accused applied in this case. The evidence of bad character that Morrisson sought to introduce showed Pollock as violent, unstable and abusive. A wide range of actors in the case including criminals, Pollock’s spouse and police officers expressed a fear of Pollock or offered an opinion about his dangerousness. It would be very easy for the jury to reason from this general evidence of propensity that Pollock was the very type of person likely to have committed these heinous crimes and therefore to reason to guilt, irrespective of any weaknesses in the prosecution’s case. In other words, there was a real danger that the jury would give this evidence weight out of all proportion to its legitimate probative value.

[112] That was not the only prejudice from this evidence. The prejudice to a fair trial from unfair surprise loomed large in this case. From the moment that Morrisson’s counsel surprised Pollock with the question to A about the threat, Pollock was continually at a disadvantage. His counsel was constantly required to object in the presence of the jury to lines of questioning from Morrisson’s counsel that Pollock’s counsel feared would lead to more and more prejudicial and inadmissible evidence. In the following passage, Pollock’s counsel expressed his frustration and concern about the manner in which the trial was progressing in the course of Teresa Jones’s evidence:

I wanted to make a brief statement. The last event that occurred before the jury was my objection to one of Mr. Cornale’s questions and Your Honour’s ruling and specifically it was on a question that the Crown had been disallowed so I am going to take the opportunity of refraining from any further objections because it’s not appreciated I’m sure by the jury, and I really frankly can’t be sure when an objection would or wouldn’t be appropriate, particularly since the boundaries are clearly different in the case of Mr. Cornale as compared to the Crown. All I can say to the court is that I’m trusting that the court will recognize and deal with any violations of your ruling. I feel that it’s prejudicial to my client that I’m put in a position where I have to constantly object especially when I cannot be sure what the parameters are given that this is a co-accused questioning so I’m going to refrain from objecting, Your Honour. [Emphasis added.]

[113] I should point out that notwithstanding this comment, counsel for Pollock did continue to raise objections to some of the most egregious questions from Morrisson’s counsel, such as when Morrisson’s counsel asked Jones whether Pollock would have reacted violently if he heard that she had been sleeping with Weston.

[114] The disposition evidence also caused the problems of undue distraction from the issues and undue consumption of time. As a result of Morrisson’s counsel’s questions, large amounts of time were spent exploring the robbery conspiracy, the fears of various witnesses, the many assaults by Pollock on Jones, the views of police officers of Pollock’s character and various hearsay utterances. Further, while most of the prejudicial evidence entered the case through questions from Morrisson’s counsel, on a few occasions, counsel for the Crown was permitted to lead evidence on the theory that Morrisson’s counsel would inevitably do so. This was not a major part of the problem in the case, but it did serve to confuse the issues further as to whether the evidence was led to bolster Morrisson’s defence or as positive evidence of Pollock’s guilt.

[115] In fairness to the trial judge, he could not predict all that would flow from his initial ruling during A’s testimony that Morrisson could adduce evidence of Pollock’s threat. As well, the trial judge frequently cautioned the jury about the use to be made of the bad character evidence. In my view, however, the trial judge erred in admitting much of the evidence of Pollock’s disposition, and this led to a trial that was unfair to Pollock. Questions, asked by Morrisson’s counsel, that were outside the scope of any ruling or that called for hearsay and prejudicial answers further aggravated the situation. Surprisingly, even when the trial judge instructed counsel to move off an area in response to an objection, Morrisson’s counsel would return to the same area with another witness.

[116] As I have said above, Morrisson claimed to be entitled to lead evidence of Pollock’s violent disposition principally on the theory that it supported Morrisson’s defence that he gave his first untruthful statement to the police out of fear of Pollock. That submission could rest on two propositions, the first one being that Morrisson knew of Pollock’s violent disposition and for that reason was afraid of him. Only acts of violence of which Morrisson was aware would logically support this proposition. None of the evidence of Pollock’s violent disposition adduced by Morrisson fell into that category.

[117] The alternative proposition was that Morrisson’s fear of Pollock was objectively reasonable because of threats and acts of violence by Pollock towards others, even though Morrisson was unaware of those acts. It is the evidence adduced in support of this proposition that is at the heart of this appeal. The probative value of this evidence depended on two findings of fact: first, that Morrisson was afraid of Pollock, and second, that it was this fear, rather than another motivation such as Morrisson’s own apparent involvement in the transaction, for example, that led him to lie to the police. In my view, at the stage that Morrisson’s counsel sought to introduce evidence of Pollock’s disposition, there was no evidence to support either proposition. While there was some evidence from Morrisson’s demeanour when dealing with the police that he was in fear, there was no evidence during the Crown’s case that this fear was the result of anything done by Pollock or that Morrisson feared Pollock. One of the few people who knew Pollock and Morrisson, Teresa Jones, testified that she saw no evidence that Morrisson was afraid of Pollock. Further, the police surveillance evidence showed meetings between Morrisson and Pollock after the shootings. Finally, in my view, the fact that unknown to Morrisson, Pollock engaged in violent acts or threats of violence to others was not sufficient on its own to support the twin inferences that Morrisson feared Pollock and provided the false statement out of fear.

[118] Before a trial judge is entitled to permit one accused to adduce evidence of the bad character of a co-accused, the judge must be satisfied that the evidence is necessary for the accused to make full answer and defence. In my view, in a joint trial where the evidence was so potentially prejudicial to his co-accused, Morrisson’s counsel’s bare assertion that the evidence was necessary for Morrisson to make full answer and defence was not a sufficient basis for making a finding that the evidence met that test. The principal problem in this case was that the trial judge admitted evidence where there was nothing to suggest that the evidence was relevant to a live issue in the case.

[119] In Scopelliti, the court had to consider the admissibility of evidence of prior acts of violence unknown to the accused, tendered to support a defence of self-defence. Martin J.A. held at p. 493 that in that context, a threshold condition had to be met:

Dean Wigmore would require as a condition of the admissibility of evidence with respect to the uncommunicated character of the deceased for violence, where self-defence is an issue, the existence of some other appreciable evidence of the deceased's aggression on the occasion in question; otherwise, the deceased's bad character may be put forward improperly as a mere excuse for the killing under the pretext of evidencing his aggression (ibid., pp. 469-0). I would agree with this limitation. The additional evidence of the deceased's aggression may, in my view, however, emanate from the accused. [Emphasis added.]

[120] The trial judge was required to apply an analogous condition in this case. Before the bad character evidence was admissible, there had to be some appreciable evidence of Morrisson’s fear of Pollock because of his violent disposition, as well as some appreciable evidence that this fear motivated the false statement. Otherwise, the evidence of bad character was nothing more than character assassination. As I have said, that evidence could come from cross-examination of Crown witnesses or some other evidence in the Crown’s case. But that foundation had to be laid before such prejudicial evidence was potentially admissible. If Morrisson could not lay that foundation in the Crown’s case, admission of the character evidence would have to await a ruling during the defence case.

[121] Even if there was some basis for finding that Morrisson’s fear of Pollock was a live issue in the case, the trial judge still had to consider not only whether the proposed evidence was probative but whether the probative value was sufficient to warrant its admissibility. Martin J.A. also addressed this issue in Scopelliti at p. 496:

I agree, of course, that evidence of previous acts of violence by the deceased, not known to the accused, must be confined to evidence of previous acts of violence which may legitimately and reasonably assist the jury in arriving at a just verdict with respect to the accused's claim of self-defence. To exclude, however, evidence offered by the accused which is relevant to prove his innocence would not, in my view, be in the interests of justice.

Since evidence of prior acts of violence by the deceased is likely to arouse feelings of hostility against the deceased, there must inevitably be some element of discretion in the determination whether the proffered evidence has sufficient probative value for the purpose for which it is tendered to justify its admission. Moreover, great care must be taken to ensure that such evidence, if admitted, is not misused. [Emphasis added.]

[122] Thus, the evidence must be legitimately and reasonably capable of assisting the jury in arriving at a just verdict. Not all evidence of a violent disposition can necessarily meet that test. There must be some legitimate and reasonable nexus between the proffered evidence and the inference sought to be drawn by the accused. Further, the evidence must have “sufficient probative value” for the purpose for which it is tendered. As this court explained in the subsequent decision in R. v. Yaeck (1991), 68 C.C.C. (3d) 545, leave to appeal to the Supreme Court of Canada refused (1992), 71 C.C.C. (3d) vii, at 567, referring to R. v. Seaboyer at p. 406, the value of the evidence must outweigh its potential prejudice to the conduct of a fair trial. Sufficiency implies more than simple bare probative value. As I indicated above, since this is defence evidence, exclusion of relevant evidence is justified only if “the potential prejudice to the trial process of admitting the evidence clearly outweighs its value” [Yaeck at p. 566, referring to Seaboyer at pp. 391-92].

[123] In considering the admissibility of the evidence of Pollock’s disposition, the trial judge had to find that the evidence had sufficient probative value to warrant its reception. He needed to consider whether the evidence would mislead the jury, would involve an inordinate amount of time, would unduly distract the jury from the real issues in the case or would cause unfair surprise to Pollock’s defence. The trial judge did not take these other issues into consideration. He focused solely on the assertion from counsel that the evidence was necessary for Morrisson’s defence.

[124] The most important factor in considering the value of the evidence of Pollock’s disposition was that the evidence was being tendered to support Morrisson’s state of mind and yet the incidents were unknown to Morrisson. This factor alone suggested that the trial judge had to be very cautious about admitting this evidence. The cases to which the trial judge was referred at trial such as R. v. Suzack, R. v. Crawford and R. v. Kendall and McKay, (1987), 35 C.C.C. (3d) 105 (Ont. C.A.) were very different from this case. In those cases, one accused sought to lead evidence of the violent propensity of the co-accused to show that of the two, it was more likely that it was the co-accused who killed the victim. However, it was never Pollock’s defence that it was Morrisson and not he who had committed the murder and shot Smith. There was simply no question that the gunman, i.e. the person other than Morrisson, had shot Smith and Weston. Pollock’s position was that the Crown had not proved he was the perpetrator and that it was open to the jury to find that the real perpetrator was McLean.

[125] While at one point Morrisson’s counsel asserted that the propensity evidence was relevant for the jury to determine whether it was Morrisson or Pollock who committed the murder and attempted murder, that choice was never a realistic or live issue. On the evidence, the gunman was the principal offender. No one suggested that this was Morrison. Thus, the application of the principles in the Suzack line of cases had to be approached with caution. The propensity evidence in this case was relevant, if at all, for a much more limited purpose, as circumstantial evidence of Morrisson’s state of mind.

[126] If Morrisson’s fear of Pollock had been a live issue at the time it was admitted, evidence of the threat by Pollock to A might have been probative. It would have made Morrisson’s assertion that he was threatened by Pollock more probable. The other evidence of Pollock’s disposition was more problematic. It had tenuous value in showing that Morrisson had been threatened by Pollock or in supporting Morrisson’s fear of Pollock.

[127] Thus, even if some of the evidence might be admissible to support the desired inferences, not all of the disposition evidence was admissible. For example, in Scopelliti, the court held that evidence of specific acts of violence would be admissible to prove the deceased’s propensity for violence in order to support the self-defence-position of the accused. In this case, however, the evidence went far beyond that limit and, for example, included expressions of opinion by police officers and witnesses of their fear of Pollock. In balancing the interests of Pollock and Morrisson, the trial judge should have excluded this evidence because it was of trivial probative value in showing that Morrisson made his statement to the police out of fear of Pollock.

[128] There is one last issue to be addressed on this aspect of the ground of appeal. In the end, Morrisson did testify and did assert that he had been threatened by Pollock and was afraid of Pollock. Thus, it could be argued that no prejudice was occasioned because the evidence of Pollock’s violent disposition would inevitably have been admissible during Morrisson’s defence. The difficulty with this reasoning is that it is not at all clear that the trial judge would have admitted any or all of the disposition evidence after Morrisson had testified. The theory that Morrisson lied to the police because of fear of Pollock was somewhat uncertain in view of Morrisson’s own evidence that he lied on instructions from his then lawyer (admittedly denied by the lawyer when he was called by Pollock). In any event, the trial judge would, by then, have had a much clearer picture of what was really in issue in the case and what evidence was actually necessary to support the defence theory. More importantly, had the trial judge, early on, ruled against Morrisson on this issue, that is until Morrisson’s fear of Pollock was a live issue, it is unlikely that all of the evidence which was clearly inadmissible would have been adduced, such as the opinions of police officers and others of Pollock’s character, the references to Pollock’s criminal record and his criminal associations.

[129] Thus, I do not agree with the Crown’s principal submission on this aspect of the appeal, that the evidence of Pollock’s violent disposition was properly admitted so that Morrisson could make full answer and defence.

[130] I now wish to turn to the Crown’s other submissions in support of the trial judge’s rulings and the admissibility of the evidence of Pollock’s disposition.

(d) The nature of Pollock’s defence

[131] Pollock forcefully attacked the prosecution’s case. He claimed that the investigation was flawed. He also claimed that the police were guilty of “tunnel vision” in that they focussed on Pollock to the exclusion of other suspects. He also attacked the motives of the various witnesses for testifying, including those who had entered the witness-protection programme. The Crown submits, for example, that since Pollock challenged A’s motives for becoming a Crown witness and entering the witness-protection programme, evidence that A’s real motive was fear of Pollock was admissible to prevent the jury from getting an unfair and distorted picture. There would be much to say in favour of this kind of argument but for the fact that the cross-examination of A by Pollock’s counsel came after the ruling permitting Morrisson to lead the evidence of the threat to kill. In other words, the manner in which Pollock’s defence was conducted must be put in context. Finally, evidence that witnesses have been placed in a witness-protection programme can be highly prejudicial. Such evidence can have the tendency to undermine the presumption of innocence. The jury will naturally assume that persons in authority have determined that the accused are guilty and that witnesses need to be protected from them. The trial judge will ordinarily take steps to minimize the prejudice to the defence when such evidence comes out during a trial. Something of the reverse happened here. Morrisson was permitted to explore the witnesses’ reasons for entering the programme and place the blame for their need to do so at Pollock’s feet.

[132] The Crown also supports the trial judge’s rulings that the nature of the cross-examination of A made relevant Pollock’s membership in the conspiracy and the “triggerman” comment. As indicated, after counsel for Morrisson and Pollock had both cross-examined A, the trial judge permitted counsel for Morrisson to cross-examine A further and to adduce evidence that Pollock was a member of the robbery conspiracy. The basis for the ruling was that in cross-examining A on the conspiracy, counsel had adduced the names of the other conspirators, which would leave a misleading impression that Pollock was not a member of the conspiracy. This was an error. Pollock was not on trial for conspiracy to commit robbery. The fact that the jury might erroneously conclude that Pollock was not a member of the conspiracy was irrelevant.

[133] As to the “triggerman” comment in paragraph 38, I have set out the chronology that led to this evidence. In short, the trial judge ruled that A would be allowed to answer the question on the basis that for the trial judge to prevent him from answering the question would “[look] like the defence of Mr. Pollock is being restricted in some way, shape or form”, despite the fact that Pollock was objecting to the witness answering the question. There was no basis for admitting this evidence or permitting the further evidence from Officer Albano. As it turned out, most of this evidence was nothing more than hearsay and inadmissible on that ground.

[134] Crown counsel submits that Pollock’s own counsel adduced evidence of his criminal record, which minimized the prejudicial effect of cross-examination by Morrisson’s counsel about Pollock’s lengthy criminal record and his background with guns and for violence. However, the point is that these questions should not have been permitted in the first place, and it was unfair to place Pollock in the position of having to adduce his own criminal record. I am also concerned about Crown counsel’s comments about “other entries”, which may have left the jury with the impression that parts of the record that would support Morrisson’s counsel’s questions had been kept from them.

[135] The Crown’s strongest argument on this aspect of the case relates to the evidence of Teresa Jones. It was clear that counsel for Pollock would attack Jones’s credibility, in part, on the basis that she had told the police over several years that Pollock had nothing to do with the killing. It was also part of the defence theory that she only came forward when she was seeking parole. Accordingly, it was open to Crown counsel to anticipate that line of attack by adducing evidence from Jones that she made the prior inconsistent statements out of fear of Pollock. See R. v. Speid (1985), 20 C.C.C. (3d) 534 (Ont. C.A.) at 546-54. It was also open to Crown counsel to lead evidence as to the basis for this fear. Thus, some of the evidence that Crown counsel and counsel for Morrisson led from Jones of Pollock’s violent disposition was properly admissible.

[136] However, as recognized by the trial judge, that evidence had to be kept within reasonable bounds to prevent the trial from being diverted from a murder trial to a trial of abuse by Pollock on Jones. Thus, in his initial ruling, the trial judge made it clear to Crown counsel that he did not want to become entangled in forty “mini-trials” and that Crown counsel was to ask questions that “paint[ed] the issues with broad brush strokes”. That ruling changed, however, when counsel for Morrisson engaged in cross-examination of Jones. As the ruling reproduced at para. 58 shows, the trial judge placed no such limits on Morrisson’s counsel, and Morrisson’s counsel therefore took the opportunity to go into considerable detail over some of the incidents. Those details included the various injuries, hospital admissions and threats by Pollock to rape Jones’s mother and hurt her father. Counsel’s final question was whether Pollock would react violently if he had heard that she had been sleeping with Weston. There was no evidence to support this suggestion. Counsel for Morrisson did not suggest that he had instructions that any such statement had been made. He relied instead on the fact that Detective McMillan had heard this rumour from an unreliable informant. The trial judge rightly ruled that the question was improper. Compare R. v. Lyttle (2004), 2004 SCC 5, 180 C.C.C. (3d) 476 (S.C.C.).

(e) The jury instructions

[137] The Crown submits that the trial judge properly balanced Morrisson’s right to make full answer and defence with Pollock’s right to a fair trial by giving the jury complete and correct jury instructions as to the limited use to be made of the propensity evidence adduced by Morrisson. There is much to be said for this submission. The trial judge gave frequent directions to the jury as the bad-character evidence was led. I have set out some of those directions above. In addition, in the charge to the jury, the trial judge gave directions to which no objection was taken at trial. Thus, the trial judge told the jury the following:

• They must not conclude that either Morrisson or Pollock is a person of bad character and therefore more likely to have committed the offences;

• Evidence of Pollock’s propensity and disposition for violence was necessary because of Morrisson’s defence that he was afraid of Pollock; this evidence supported the reasonableness of Morrisson’s fears and explained his delay in coming forward and identifying Pollock as the shooter;

• The jury must not misuse such evidence; each accused must be tried not for the type of person that he is or is alleged to be, but whether the offences that he has been charged with were committed;

• Evidence of disposition cannot be used as evidence that either of them is a bad person with a disposition or propensity for crime and/or for violence, and therefore committed or is more likely to have committed the crimes charged;

• The jury cannot use evidence of disposition, propensity, or bad character to convict either accused to punish them for past acts; such evidence is not positive evidence of guilt;

• The jury must not infer from the evidence relating to the disposition or character of either Morrisson or Pollock that simply because of his disposition or character, he is a person who must have committed the crimes or is more likely to have committed them.

[138] The trial judge also went out of his way to deal with particular pieces of evidence. For example, he instructed the jury that A’s “triggerman” comment to Officer Albano could not be used for any purpose except to determine A’s credibility. He told the jury that Pollock was not on trial for having abused Ms. Jones and this could not be used as evidence that he committed the offences charged.

[139] While these instructions and others given during the trial are important considerations, in my view, they cannot overcome the prejudicial effect of the evidence of Pollock’s character. Counsel for Morrisson seemed never to miss an opportunity to ask questions calling for prejudicial and inadmissible evidence. I am also concerned that some of the proceedings were particularly unfair to Pollock, such as the attempt to adduce from an experienced police officer evidence of his own fear of Pollock. This bad character evidence pervaded the trial and rendered the trial unfair to Pollock: See R. v. Dhillon (2002), 166 C.C.C. (3d) 262 (Ont. C.A.) at para. 48.

[140] Finally, while the trial judge gave many instructions to the jury as to the limited use of much of the bad character evidence, a key instruction on this issue is somewhat problematic. The trial judge directed the jury as follows:

Thus, evidence of the disposition of Mr. Pollock and/or of the disposition of Mr. Morrisson, cannot be used by you as evidence that either of them, considered separately and independently on the evidence which relates only to them, is a bad person with a disposition or propensity for crime and/or for violence, and therefore, one or the other or both of these accused committed or is more likely to have committed the crimes set out in the indictment.

No accused person should ever be convicted of an offence where he is innocent. While this is important whenever a crime is alleged, and in serious crimes this is especially important, you cannot use evidence of disposition, propensity, bad character or similar, to convict either accused of these offenses in order either to punish him for past acts. Such evidence is not positive of evidence of the guilt of either Mr. Morrisson or Mr. Pollock in relation to these crimes. If you were to find that either Mr. Pollock or Mr. Morrisson guilty of either charge, in order to punish him for misconduct which is not the subject matter of either charge in the indictment, you would be in grievous error. This would result in a miscarriage of justice.

You must not infer from evidence which relates to the kind of person that either Mr. Morrisson or Mr. Pollock is, simply because of his disposition, or propensity, or character, or other similar reason, that he is a person who must have committed one or both of the crimes set out in the indictment, or is more likely to have committed one or both of the crimes, and, therefore, convict on that basis.

However, you can take such evidence into consideration when considering the whole of the evidence which relates to each accused, considered separately and independently to determine whether on the whole of the proper evidence, the Crown has proved the guilt of that accused beyond a reasonable doubt of either or both the charges set out in the indictment. [Emphasis added.]

[141] The trial judge then went on to deal specifically with the evidence of the use of drugs relating to both appellants and with the evidence of gun ownership by Pollock. With respect to the evidence of drugs, the trial judge directed the jury that this evidence was admitted because it formed part of the background against which the crimes were said to have occurred. It would have been preferable if the trial judge at this stage had similarly explicitly identified for the jury what he considered to be the permitted use of the evidence of Pollock’s violent disposition and use of violence. That said, the trial judge had earlier identified for the jury the proper use of the testimony concerning the assaults by Pollock, such as when he dealt with the evidence of Teresa Jones, for example.

3. Pollock’s other grounds of appeal

[142] In light of my conclusion concerning the fairness of the trial, I intend to deal with Pollock’s other grounds of appeal somewhat briefly.

(a) Severance

[143] Pollock submits that the trial judge erred in failing to sever his trial from Morrisson’s. At trial, counsel for Pollock made several applications for severance at various stages of the proceedings, usually in response to cross-examination by Morrisson’s counsel that adduced propensity evidence or inadmissible evidence. I would not interfere with the trial judge’s discretion in refusing to grant severance. The allegation in this case was that Pollock and Morrisson were engaged in a joint venture. This was presumptively a case for a joint trial. The Supreme Court of Canada has held that there should be a joint trial even where the defence of one accused includes an attack on the character of a co-accused. See R. v. Crawford at paras. 30-32. Also see R. v. Suzack at paras. 87-108.

[144] The problem in this case was not the trial judge’s decision refusing severance but the introduction of inadmissible evidence and improper cross-examination by Morrisson’s counsel. The remedy for the problem was not severance but an order excluding the evidence and requiring counsel to comply with the rules of evidence.

[145] Pollock submits that the rule that denies full appellate review of a trial judge’s decision refusing severance violates ss. 7 and 11(d) of the Charter of Rights and Freedoms. This submission is based on the well-established principle that an appellate court will not interfere with a discretionary decision unless the trial judge “acted unjudicially or … the ruling resulted in an injustice”. See R. v. Litchfield (1993), 86 C.C.C. (3d) 97 (S.C.C.) at p. 114. Pollock’s submission is that, as a matter of fundamental justice, an accused is entitled to full appellate review of any trial decision affecting his or her liberty.

[146] As Doherty J.A. said in R. v. Suzack at para. 40, “legislation conferring a discretion may not be interpreted so as to permit the exercise of that discretion in a manner which infringes Charter rights”. In exercising his discretion whether or not to grant severance in this case, the trial judge was required to consider whether the ends of justice required severance. That required the balancing of a number of competing interests as explained in cases such as Crawford and Suzack, including the importance of avoiding an injustice to the accused, as explained in R. v. Crawford at para. 32:

The general rule, therefore, is that the respective rights of the co-accused must be resolved on the basis that the trial will be a joint trial. This does not mean, however, that the trial judge has been stripped of his discretion to sever. That discretion remains, and can be exercised if it appears that the attempt to reconcile the respective rights of the co-accused results in an injustice to one of the accused.

[147] The limitation on the scope of appellate review of this decision recognizes that the trial judge is in a preferred position in balancing the many, and often competing, interests. The principle of deference to discretionary decisions is also inherent in the hierarchical nature of our justice system. This principle has been recognized time and again by the Supreme Court of Canada in a myriad of different contexts. Appellate courts retain adequate powers to intervene not only if the trial judge has erred in law or in principle but also if the refusal to grant severance has resulted in a miscarriage of justice. Pollock has not identified any constitutional principle that casts doubt on the validity of the standard of appellate review. I would not give effect to this ground of appeal.

(b) Comment on failure of Pollock to testify

[148] In his closing submissions, counsel for Morrisson commented on several occasions that Morrisson, unlike Pollock, had testified notwithstanding the substantial body of evidence against him. Morrisson’s counsel was entitled to make this comment. See R. v. Naglick (1991), 65 C.C.C. (3d) 272 (Ont. C.A.) reversed on other grounds (1993), 83 C.C.C. (3d) 526 (S.C.C.). Pollock submits, however, that the trial judge should have directed the jury that Pollock’s failure to testify could not be considered as evidence of guilt. The trial judge did instruct the jury that, “[t]he law gives all accused persons the right to remain silent at all times, even when confronted with allegations of wrongdoing.” In context, the jury would probably take this instruction as a comment on pre-trial silence. The trial judge did not instruct the jury that it could not use Pollock’s failure to testify as evidence of guilt.

[149] Pollock submits that failure to give the instruction violates the right against self-incrimination as a principle of fundamental justice in s. 7 of the Charter of Rights and Freedoms and also has the effect of shifting the burden of proof contrary to the presumption of innocence as guaranteed by s. 11(d) of the Charter. Pollock concedes that the decision of the Supreme Court of Canada in R. v. Noble (1997), 114 C.C.C. (3d) 385 is against this submission. In that case, Sopinka J. speaking for a majority of the court at paragraphs 95 and 96 held that s. 4(6) of the Canada Evidence Act, R.S.C. 1985, c. C-5, prohibits a trial judge from commenting on the silence of the accused and, in particular, “from instructing the jury on the impermissibility of using silence to take the case against the accused to one that proves guilt beyond a reasonable doubt”. Section 4(6) provides as follows:

The failure of the person charged, or of the wife or husband of that person, to testify shall not be made the subject of comment by the judge or by counsel for the prosecution.

[150] Pollock attempts to avoid the impact of the decision in Noble by pointing out that the constitutionality of s. 4(6) was not challenged in that case. He submits that s. 4(6) should either be interpreted in a manner consistent with the Charter or it should be held to be of no force and effect. This issue was not raised at trial and no objection was taken to the charge to the jury on this basis. This is not a proper case to permit a Charter issue to be raised for the first time on appeal. Had the issue been raised at trial, the Crown would have had the opportunity to make submissions and the trial judge could have considered whether to grant Pollock some remedy.

(c) Alibi

[151] Pollock submits that the trial judge failed to instruct the jury adequately as to the use to be made of Ms. Jones’s evidence concerning his alibi. He submits that there was no basis for a false alibi instruction and that in any event the trial judge failed to direct the jury as to the distinction between a disbelieved alibi and a fabricated alibi. Pollock’s position respecting Ms. Jones’s evidence and alibi was somewhat complex. The defence position was that he was with her on November 25^th although he did not “raise the defence of alibi per se” as the trial judge put it. The trial judge explained this position to the jury and told the jury that if they believed or had a reasonable doubt that Ms. Jones’s evidence supported the conclusion that Pollock was elsewhere with Ms. Jones at the time of the offences, then the Crown had not proven its case beyond a reasonable doubt.

[152] The trial judge also instructed the jury that Ms. Jones’s testimony was that while she did rent a movie as earlier instructed by Pollock, and later did go to her mother’s home and then to a bar, the visits to her mother’s home and to the bar occurred after Pollock returned home after having been out with Morrisson. The trial judge also referred to the evidence that Pollock instructed Jones to provide a false alibi to the police. The trial judge instructed the jury that they could infer that this type of conduct was inconsistent with innocence but they would have to consider whether there was an innocent explanation for this after-the-fact conduct.

[153] In my view, the trial judge’s directions concerning the false alibi were proper. Pollock submits that there must be independent evidence of fabrication before the Crown may lead evidence of a false alibi and before a false-alibi instruction can be given. He relies on this court’s decision in R. v. O’Connor (2002), 170 C.C.C. (3d) 365. In that case at para. 30, the court held as follows:

When the Crown seeks to introduce evidence to show that an accused has fabricated out-of-court statement, the judge should determine at that stage whether there is sufficient evidence of fabrication, independent of the evidence tending to show the falsity of the statements, which if accepted could reasonably support a finding of fabrication. If there is not sufficient evidence to support a finding of fabrication, then the Crown should not be permitted to call the evidence showing the accused's statements were false. [Emphasis added.]

[154] In my view, Pollock’s submissions on this point misapprehend the holding in O’Connor. The foundation for the discussion of false alibi in O’Connor is the concern that the jury will find that an alibi has been fabricated simply because the alibi is disbelieved. Therefore, the courts have “attached the requirement that a finding of fabrication must be founded on evidence that is independent from the evidence which contradicts or discredits the accused’s version of events” (para. 21). There is no requirement, however, that the evidence of fabrication must itself be confirmed or independently proved. In this case, there was direct evidence from Ms. Jones that Pollock attempted to fabricate an alibi. He told her that if anyone asked, she was to say that she had been at home and watching a movie with him that evening, and that she had never met Morrisson. That evidence did not require independent confirmation to constitute evidence of an attempt to fabricate an alibi and thus consciousness of guilt.

[155] Further, this was not a case where the trial judge was required to instruct the jury that mere disbelief of an alibi is not proof of a fabricated alibi. The issue for the jury was straightforward. If they believed Ms. Jones, Pollock instructed her to provide him with a false alibi. If they did not accept her evidence, that was the end of it. There was no risk that the jury would somehow turn disbelief of Ms. Jones’s evidence into positive evidence of guilt.

(d) The Vetrovec warning

[156] The appellant submits that the trial judge did not adequately direct the jury as to the danger of relying upon the evidence of Jones, Foster, A and B. In my view, the direction given was adequate. A proper warning in accordance with R. v. Vetrovec (1982), 67 C.C.C. (2d) 1 (S.C.C.) has the following four elements:

(1) the evidence of certain witnesses is identified as requiring special scrutiny;

(2) the characteristics of the witness that bring his or her evidence into serious question are identified;

(3) the jury is cautioned that although it is entitled to act on the unconfirmed evidence of such a witness, it is dangerous to do so; and

(4) the jury is cautioned to look for other independent evidence which tends to confirm material parts of the evidence of the witness with respect to whom the warning has been given.

[157] In this case, the trial judge gave the jury a lengthy and careful instruction that, in my view, captured all of these elements. He particularly emphasized “it is dangerous to rely on important testimony unless you find support for it in the case of persons of unsavoury reputation”. He also stated that absent confirmation the jury “may well consider that little or no weight should be given to such evidence”. He pointed out for example that several of the witnesses had perjured themselves, had significant drug problems, that one of them was seeking assistance in achieving parole when she agreed to testify, and that these types of witnesses will offer stories to the authorities that they think the authorities want to hear to acquire benefits for themselves. The warning was adequate even though the trial judge did not point to all of the reasons for finding the evidence of these witnesses suspect.

[158] The trial judge identified some parts of the evidence that the jury could use to confirm the testimony of the suspect witnesses. He did not exhaustively review all the evidence capable of amounting to confirmation, but this was at the request of Pollock’s counsel. This approach is consistent with the decision in R. v. Bevan (1993), 82 C.C.C. (3d) 310 (S.C.C.) at 326:

While it is usually a corollary of the Vetrovec warning that the trial judge make some reference to evidence that the jury may consider supportive of the impugned evidence, in some cases part or all of the supporting evidence may be extremely prejudicial to the accused, such that to draw the jury's attention to that evidence in tandem with a Vetrovec warning could in some circumstances be unfair to the accused.

I do not agree that the only remedy for this problem lies in not giving a Vetrovec warning. Instead, the appropriate remedy in those circumstances lies with the discretion of the trial judge to decide in the particular case (perhaps following argument) if a Vetrovec warning is to be given, and, if so, whether it should or should not be accompanied by a direction as to what other specific evidence the jury might conclude is supportive of the impugned evidence. [Emphasis added.]

[159] On appeal, Pollock contends that the trial judge should have exhaustively defined all of the evidence capable of confirming the evidence of the suspect witnesses. I would not give effect to this ground of appeal. The position taken by counsel for Pollock at trial was a tactical one. He obviously wished to avoid the spectacle of all the confirmatory evidence being paraded before the jury. This was a reasonable position to take and it was not contended that trial counsel was incompetent.

[160] Pollock also submits that the trial judge erred in failing to caution the jury that the evidence of one suspect witness could not confirm the evidence of another suspect witness. He correctly recognizes that this court has held to the contrary in R. v. Winmill (1999), 131 C.C.C. (3d) 380. I can see no reason for reconsidering that decision. Alternatively, Pollock submits that there must be an exception to the rule that one unsavoury witness can confirm another where there is a danger of collusion. I am prepared to assume that where there is evidence of collusion, unsavoury witnesses cannot confirm each other. In this case, the trial judge, having provided the jury with examples of confirmatory evidence, said this:

Confirmatory evidence does not have to be evidence which directly implicates the accused. Nor does confirmatory evidence necessarily have to confirm all of the evidence of a witness. Testimony which you believe in whole or in part to be credible, which significantly supports the position that the inculpatory aspects of the evidence of an unsavoury witness was not fabricated and which is independent of the unsavoury witness, or even of other unsavoury witnesses should, you may believe, have more weight in terms of your assessment of that evidence. [Emphasis added.]

[161] It would have been preferable for the trial judge to have gone on and expressly pointed to some of the evidence from which the jury could find collusion amongst the suspect witnesses, especially Foster and A. These two witnesses had shared a jail cell at one time, were members of the robbery conspiracy and Foster had access to A’s statements concerning the ring. However, this non-direction did not, in my view, occasion any prejudice to Pollock in view of the independent evidence from Jones about Pollock’s possession of the ring on November 25^th after he returned with Morrisson. Pollock also submits that there was evidence of collusion between B and Jones. Jones did regularly visit B to obtain drugs from him but there was little evidence of any collusion or motive for collusion between the two. While the trial judge might have pointed to the evidence of this relationship, in fairness he would also have had to point out that there was no evidence of collusion beyond a bare possibility of opportunity. This non-direction did not prejudice Pollock. I would not give effect to these grounds of appeal.

(e) Warning respecting Morrisson’s evidence

[162] In a somewhat related submission, Pollock submits that the trial judge erred in refusing to give a Vetrovec warning in relation to Morrisson’s evidence insofar as it implicated Pollock in the offences. In the pre-charge conference, counsel for Pollock asked for such a warning.

[163] The law is well established that a trial judge must not give a Vetrovec warning in relation to defence witnesses giving evidence favourable to the defence. In R. v. Tzimopoulos (1986), 29 C.C.C. (3d) 304 (Ont. C.A.) (motion for leave to appeal to Supreme Court of Canada dismissed (1987), 21 O.A.C. 319n) at 340, this court held that, “[t]he Vetrovec warning should only be given where a witness is giving evidence that assists in the demonstration of guilt.” Pollock submits that he was therefore entitled to a Vetrovec warning at least in respect of that part of Morrisson’s evidence implicating him in the crimes.

[164] As with so many other issues in this trial, the trial judge had to balance the fair trial interests of both Morrisson and Pollock in deciding how to treat Morrisson’s evidence. In my view, in the circumstances of this case, to give the jury a full Vetrovec warning, including a warning that it was dangerous to act on Morrisson’s evidence insofar as it implicated Pollock, would tip the balance too far against Morrisson. The whole tenor of Morrisson’s defence was that Pollock, apparently acting on instructions from McLean but unbeknownst to Morrisson, had executed Weston.

[165] On the other hand, Pollock was entitled to have his position fairly put to the jury that Morrisson was a thoroughly unreliable witness whose evidence should therefore not be relied upon. This court dealt with a similar problem in R. v. Suzack. In that case, the co-accused Pennett called two witnesses whose evidence supported his position that Suzack fired the shots that killed the victim, a police officer. These witnesses were friends of Pennett with extensive criminal records, and one had lied in court on a previous occasion. In his review of the evidence of these witnesses, the trial judge told the jury to scrutinize the evidence “with care before you accept it”. On appeal, Pennett complained that the trial judge had, in effect, given a Vetrovec warning in relation to these witnesses. Doherty J.A. dealt with this ground of appeal at para. 189 as follows:

I would not characterize the impugned instruction as a "Vetrovec" warning but rather a caution that the credibility of these two witnesses had to be carefully measured given their long history of dishonesty. A trial judge is entitled to alert the jury to the factors which the trial judge thinks are important in assessing the credibility of various witnesses. There was ample reason to be concerned about the honesty of these two witnesses. I am sure the jury would have proceeded cautiously when considering the evidence of these two witnesses without any instruction from Trainor J. No doubt he felt compelled to give the instruction because of Suzack's position in the trial. The evidence of Gibbs and Sweeney was potentially very harmful to Suzack and it was his position that they were thoroughly unworthy of belief. Trainor J. had to put Suzack's position to the jury just as he had to be sure that the jury understood the thrust of the evidence and its significance to Pennett's position. As at other points in the charge, Trainor J. had to balance two conflicting interests. I see nothing wrong with the balance he struck. [Emphasis added.]

[166] The trial judge took a similar approach in this case. While not giving a Vetrovec warning to the jury, he alerted the jury in clear terms to Pollock’s position that Morrisson’s evidence should not be relied upon to support the Crown’s case. Thus the trial judge instructed the jury in part as follows:

Similarly, it is part of the defence position of Mr. Pollock that Mr. Morrisson has no credibility. He is a consummate liar. His involvement in drugs and his association with Mr. Terry McLean, acting as Mr. McLean’s right-hand man, must be understood by you in Mr. Pollock’s defence to assist you to appreciate that it was Mr. McLean, not Mr. Pollock, who was the shooter or, at least, who was present at the shooting and the events of November 25^th 1993. Mr. Pollock was not there, Mr. McLean was, and Mr. Morrisson was involved with Mr. McLean and in drugs so deep that he has lied.

The Crown also relies on the evidence of David Morrisson, insofar as he incriminated Robert Pollock. The evidence of David Morrisson is highly suspect, and also provides no meaningful confirmation of the Crown’s case. The Crown has not adduced credible or reliable evidence of Robert Pollock’s guilt, and a reasonable doubt remains.

[167] The trial judge could have gone further and instructed the jury to view Morrisson’s evidence with care so far as it implicated Pollock or supported the Crown’s case. However, I am satisfied that the jury clearly understood Pollock’s position. Certainly by the time Pollock’s counsel had finished cross-examining Morrisson on the two letters the jury could not have been in any doubt that they needed to approach Morrisson’s evidence with great care to the extent that he tried to implicate Pollock. I would not give effect to this ground of appeal.

(f) Cross-examination of Morrisson on failure to take a polygraph

[168] Pollock also submits that the trial judge erred in failing to permit cross-examination of Morrisson on his refusal to take a polygraph. Pollock rightly points out that Morrisson made his cooperation with the police a central theme of his defence. Thus, Pollock submits that to provide a more accurate picture, he should have been able to cross-examine Morrisson on the fact that on two occasions Morrisson refused to take a polygraph test. In my view, the trial judge was right in refusing to allow this cross-examination. It had minimal probative value to any issue in the case and would have been extremely prejudicial to Morrisson. To explore that issue fully would have involved the court in a lengthy side issue about Morrisson’s belief about the value of the polygraph, and might involve evidence of advice Morrisson received from his counsel. There was abundant other evidence to test Morrisson’s assertion of his cooperation with the police, such as the letters and the initial false statement, that did not carry the same prejudice.

(g) Crown counsel’s jury address

[169] Pollock submits that the address of Crown counsel (not Ms. Cecchetto) was improper in several respects and that this contributed to the overall unfairness of the trial. Of the several complaints levelled at Crown counsel, in my view, only one category merits discussion. On several occasions, Crown counsel referred to the role of Crown counsel and compared his role and that of his colleague to the prosecutors in a popular American television programme. I would not encourage that type of comment. As this court said in R. v. Levert (2001), 159 C.C.C. (3d) 71 at paras. 31 and 32:

There is a danger that it invites an invidious comparison with defence counsel's role. In other words, the jury may give more weight to the submissions of Crown counsel because of the impression that they are objective whereas the submissions of defence counsel should be discounted because they are biased and driven by loyalty to the client.

As well, such comments come perilously close to the conduct criticized by the court in Boucher v. The King (1954), 110 C.C.C. 263 (S.C.C.).

[170] That said, the trial judge instructed the jury in very clear terms to ignore those comments. He also gave appropriate instructions with respect to many of the complaints taken in this court about Crown counsel’s closing address. The nature of Crown counsel’s comments were not such as to affect the overall fairness of the trial and I would not give effect to this ground of appeal.

(h) Approach to the evidence

[171] Pollock’s final ground of appeal from conviction concerns the manner in which the trial judge directed the jury with respect to their fact finding. The appellant submits that the trial judge erred in the following passages from the charge to the jury:

Go through all of the evidence in relation to each accused considered separately and independently. Look at it, decide what you accept, what you believe, and what you do not accept. Then take the law as I will explain it to you, and decide whether or not the evidence which you accept proves the vital essential elements of the offence, or a lesser included offence, and whether that evidence proves guilt beyond a reasonable doubt.

If on looking at all of the evidence whether favourable to the prosecution or defence, you are left with a reasonable doubt on any vital or essential element of an offence, then the Crown has not proved that that offence has been committed.

Do not, however, go through the evidence by way of a series of separate and exclusive judgments on separate items of evidence or groups of evidence. Do not take a piece of evidence and ask what this proves in and of itself. As stated so many times, look at the whole of the evidence in relation to each accused. If you believe some one or more aspects of the evidence beyond a reasonable doubt, but have such a doubt when assessing all of the evidence, you must acquit the accused in respect of whom you have such a doubt on that offence. You must assess each accused and each offence in this way.

You must determine the guilt or innocence of Mr. Morrisson and Mr. Pollock on the evidence that you do, in fact, believe referable to that particular accused. In short, you should be scrupulous about weighing the evidence of Miss Jones and Messrs. [A], Foster and [B]; however, having done so and considered the dangers of convicting on the strength of such evidence, especially if it is unconfirmed, I tell you again that you may accept some, none or all of that evidence.

The evidence that you do accept can then serve as a basis of proof of other evidence and thus in the context of your considerations of the whole of the evidence. Such evidence can be a basis for your verdict in relation to each of Mr. Morrisson and Mr. Pollock, each considered separately and independently.

Members of the jury, you are not only entitled to but you are obliged to consider all of the evidence to determine whether the focus of the police investigation was properly conducted in order to fairly evaluate the information which the police had.

Indeed, you must do so. Do not permit yourself to be unduly influenced by words such as “conspiracy” or “frame”. Your job is to weigh the evidence you have heard or seen in this trial. All of it. Your obligation is to search to determine the facts as you believe them to be, based upon the evidence called in this trial, and then to apply those facts to the law as I have explained it to you. This is the only basis upon which you can reach a fair and just verdict in a fair trial. [Emphasis added.]

[172] The appellant submits that these directions are inconsistent with this court’s decision in R. v. Miller (1991), 68 C.C.C. (3d) 517 at 543:

[I]t was a misdirection to instruct the jury to examine the evidence in a first stage, to eliminate all evidence except that which the jurors accepted as true and reliable (a lower standard than proof beyond a reasonable doubt), and then to consider only the residual in arriving at their verdict. This involved the injection of artificial rules for the jury and constituted "an intrusion into the province of the jury". We believe it is wrong and prejudicial to confine the jury, in their initial findings of fact, to evidence accepted as true and reliable; evidence which is neither rejected nor accepted should survive to the final stage of the jury's determination on the crucial application of reasonable doubt.

In a case where credibility is vital, the jury should be told clearly what to do in the event of a reasonable doubt about credibility. Here, the jury was invited to proceed to their findings of fact on the basis of evidence accepted as true and reliable, and to exclude from their consideration evidence which they rejected. [Emphasis added.]

[173] I agree with Pollock that these directions read in isolation are problematic, particularly the direction that the jury should determine the guilt “or innocence” of both appellants “on the evidence that you do, in fact, believe referable to that particular accused”. In my view, however, these directions were not fatal when the other directions to the jury are taken into account, especially the trial judge’s references to the need for the jury to consider all of the evidence relating to a particular accused. In Miller at p. 544, the court found that the proper instructions on reasonable doubt and the presumption of innocence “cannot correct or neutralize a colourful but erroneous specific direction on the two-stage process which would strike the imagination of the jury”.[^1] The trial judge in this case did not accompany the impugned directions with a similar metaphor.

(i) The role of counsel

[174] I wish to conclude my discussion of Pollock’s appeal with a comment about the role of defence counsel in a joint trial. Of course, counsel have an obligation to advance the cause of their client fearlessly by all lawful means. That obligation does not change because counsel is required to adduce evidence in a joint trial that will prejudice or undermine the defence of a co-accused. Accused do not choose to be tried together. That is a matter first for the Crown, and then for the trial judge when considering any severance application. Counsel do, however, have an obligation to respect the rules of evidence, to act fairly in representing their client, and to respect the rulings of the trial judge. Regrettably, in this case counsel for Morrisson in his defence of his client frequently crossed the line between legitimate defence and improper tactics. It began when he cross-examined A on the threat. Even if this evidence was admissible, he had to know that its admissibility would be contested. After all, he had sat through a lengthy voir dire where the Crown had attempted, unsuccessfully, to lead the very same evidence. In fairness to everyone, he should have raised the issue with the judge before attempting to lead the evidence.

[175] After that incident, the trial judge warned counsel to vet such controversial matters with the court first. Despite that warning, counsel for Morrisson continued to ask questions calling for prejudicial evidence without advising the trial judge. He also asked questions calling for inadmissible hearsay evidence. Often, the damage was done by the question. The fact that the trial judge later ruled that the question should not be answered could not, in the circumstances of this case, repair the damage.

[176] In R. v. Giesecke (1993), 82 C.C.C. (3d) 331 (Ont. C.A.), application for leave to appeal to Supreme Court of Canada dismissed (1994), 86 C.C.C. (3d) vii, at 334 this court encountered a similar problem, in that case because of the jury address of counsel for the co-accused. In that context the court noted that:

[w]hile counsel is not held to a standard of perfection in his or her address to the jury, there is a significant difference between remarks or observations one can characterize as inappropriate but contextually acceptable, and those made by counsel for the co-accused in this case which, by their hyperbole, mischaracterization or insinuation, impair the possibility of a fair trial.

[177] The same must be said here. While counsel is not held to a standard of perfection in their defence of the case and allowances must be made for the stress of defending a client on a charge of first degree murder, counsel must not resort to improper tactics that impair the possibility of a fair trial.

THE MORRISSON APPEAL

1. The “letters” to Pollock

[178] The appellant Morrisson’s principal ground of appeal concerns the admissibility and use of Exhibits 91 and 92, the letters that Morrisson apparently wrote to Pollock. With respect to admissibility, Morrisson submits that the trial judge failed to consider whether the probative value of the letters outweighed their prejudicial effect. He submits that the letters were of virtually no benefit to Pollock. On the other hand, the letters were extremely prejudicial to Morrisson. They tended to undermine his claim that he was afraid of Pollock, and could be read as an admission and as consciousness of guilt.

[179] In my view, the letters were properly admitted. They were statements by Morrisson concerning the crimes. I do not accept that they were of no benefit to Pollock. Morrisson directly implicated Pollock in the murder and attempted murder. It was Pollock’s position that Morrisson was not telling the truth and was covering up for McLean. It was his position that it was not out of fear Morrisson did not identify Pollock in his initial statement to the police, but rather because Pollock had not been there. The letters seriously undermined Morrisson’s credibility, especially his claim that he lied to the police out of fear of Pollock.

[180] Morrisson also submits that the trial judge should have determined whether or not these were letters sent to Pollock or merely notes Morrisson kept for himself. In my view, it was not necessary for the trial judge to make any such determination. Once it was shown that the documents were written by Morrisson, and he accepted that they were, they were admissions by Morrisson and available for use by the jury as such. Morrisson’s purpose in creating the documents was a matter for the jury to consider.

[181] I am also satisfied that the trial judge adequately directed the jury as to the use to be made of the letters. The trial judge directed the jury that they could use the letters in assessing Morrisson’s credibility and “whether or not they [the letters] are consistent with the conduct of an innocent person”. The trial judge then went on to give a complete instruction to the jury about the use of after-the-fact conduct evidence.

2. Severance

[182] Morrisson also submits that the trial judge erred in refusing his application for severance. Morrisson applied for severance when the trial judge permitted Ms. Jones to testify about Pollock’s comment that “Dave didn’t do what he was supposed to do. Dave fucked up.” As I have said above, the decision whether to order severance is discretionary. I am not persuaded that the trial judge erred in refusing the severance application. This was a proper case for a joint trial and the trial judge gave the jury clear instructions at the time the evidence was introduced that this evidence was not admissible against Morrisson. As well, in the charge to the jury, the trial judge instructed the jury that the statements were only evidence against Pollock and “cannot be used by you in deciding the guilt or innocence of Mr. Morrisson. They are not evidence insofar as Mr. Morrisson is concerned.” Finally, the statements were not so gravely prejudicial to Morrisson’s defence that no instruction could minimize the risk that the jury would misuse the evidence. While somewhat incriminating, the statements also were consistent with Morrisson’s position that he did nothing to assist in the killings.

3. Use of the evidence of Pollock’s disposition for violence

[183] Morrisson also submits that the trial judge did not adequately direct the jury as to the use to be made of the evidence concerning Pollock’s disposition for violence. The trial judge directed the jury that this evidence was relevant to Morrisson’s position that he gave the false statement to the police out of fear of Pollock. On appeal, Morrisson submits that the evidence was also relevant to show that Pollock was more likely than Morrisson to have administered the beating to Weston and to have acted alone, and the jury should have been so instructed. No objection was taken at trial to this aspect of the charge to the jury.

[184] In any event, in my view, Morrisson was not prejudiced by the absence of the proposed direction. As I have said earlier, this is not a case where there was some doubt about the role played by the gunman. If Pollock was at the scene of the crime, there was no doubt that he shot Smith and Weston and beat Weston, probably with the gun. Evidence of Pollock’s propensity for violence was not admissible in favour of the Crown to place Pollock at the scene. The propensity evidence could only be used to support Morrisson’s theory if the jury could infer that Pollock’s propensity for violence made it unlikely that Morrisson joined in the beating. I fail to see how this evidence would have materially assisted the jury in drawing the desired inference. I would not give effect to this ground of appeal.

4. The effect of allowing Pollock’s appeal

[185] Although not raised by Morrisson, I have considered the effect of what appears to be the possibly anomalous result that on one theory of the case the person alleged to be the principal offender is entitled to a new trial while the co-accused is not so entitled. However, I am satisfied that dismissing Morrisson’s appeal is the correct result. This is not a case such as R. v. Nygaard (1989), 51 C.C.C. (3d) 417 (S.C.C.) where, while the inadmissible evidence affected only the principal offender, the court ordered a new trial for both because it was possible that on a new trial the principal offender would be convicted only of second degree murder. That would have led to “the incongruous and unacceptable result” (p. 440) that the prime mover in the case was guilty of only second degree murder while the other party was guilty of first degree murder.

[186] In this case, the trial judge did leave second degree murder as a possible verdict, although realistically Pollock was guilty of first degree murder or nothing at all. This was nothing less than an execution. Without warning and after lying in wait, the gunman shot Smith and Weston. Further, this is not a case where the “prime mover” could end up convicted of a lesser offence. The most likely theory was that Morrisson and the gunman were co-perpetrators, not that Morrisson was merely a party to a killing by the gunman.

[187] Accordingly, I would dismiss Morrisson’s appeal from conviction.

THE SENTENCE APPEAL

[188] The trial judge sentenced both Morrisson and Pollock to life imprisonment with “no parole eligibility” on the charge of first-degree murder. He sentenced them for the attempted murder charge to life imprisonment and “no parole eligibility for 15 years”. The mandatory minimum sentence for first degree murder is life imprisonment without eligibility for parole for 25 years. See Criminal Code, s. 745(a). I expect that this is what the trial judge intended. However, for the sake of clarity I would adjust the sentence to conform with the wording of s. 745(a).

[189] The maximum sentence for attempted murder is life imprisonment. The trial judge also has the discretion to impose a period of parole ineligibility. The maximum period, however, is ten years. See Criminal Code s. 743.6(1). The sentence must be adjusted accordingly. It was not suggested that the sentence of life imprisonment was unfit.

CONCLUSION

[190] Accordingly, I would allow Pollock’s appeal from conviction, set aside the convictions and order a new trial. I would dismiss Morrisson’s appeal from conviction. I would grant leave to Morrisson to appeal the sentence for attempted murder, allow the appeal and reduce the period of parole eligibility to ten years. The sentence of life imprisonment will stand. The sentence for first-degree murder is life imprisonment without eligibility for parole until Morrisson has served twenty-five years of the sentence.

SIGNED: “M. Rosenberg J.A.”

“I agree K. M. Weiler J.A.”

“I agree S. Borins J.A.

RELEASED: “KMW”JUNE 23, 2004

[^1]: Morrisson did not raise this issue as part of his appeal. I note that the trial judge directed the jury as to the application of reasonable doubt to Morrisson’s testimony in accordance with R. v. W. (D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.).