COURT OF APPEAL FOR ONTARIO

DATE: 2004-12-02

DOCKET: C39852

RE: HER MAJESTY THE QUEEN (Appellant) – and – FITZROY MYRIE (Respondent)

BEFORE: DOHERTY, ROSENBERG and FELDMAN JJ.A.

COUNSEL: Jamie C. Klukach and Eliott Behar, for the appellant John Norris, for the respondent

HEARD: November 26, 2004

On appeal from the acquittal entered on March 20, 2003 by Justice A. Donald K. MacKenzie of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] For the purposes of the appeal we will assume that the trial judge erred in law in holding that the respondent’s statement should be excluded on the basis that its admission would infringe his right to silence.

[2] The Crown has not convinced us that the verdict would not necessarily have been the same had the respondent’s statement been admitted into evidence. We reach that conclusion for the following reasons:

• Most of the statement had no potential probative value. Much of the statement related to matters that were not an issue. When the officer questioned the respondent on material issues, on many occasions the respondent simply declined to make any substantive response to the suggestions put to him by the officer.
• We can find only one potentially probative answer in the statement. That answer referred to the gun used in the offence and was equivocal. When considered in the context of the other answers concerning the weapon it arguably amounted to a refusal to discuss anything in relation to the gun. This answer is also difficult to interpret without a much fuller understanding of the interaction between the police and the respondent at the time of his arrest.
• The limited potential probative value that the Crown could have hoped to gain through the admission of this statement would be counterbalanced to a large extent by the strong limiting instruction that would have been necessary had the statement been admitted. A properly cautioned jury would have been most reluctant to extract the single potentially probative answer from the statement and give it much weight against the respondent.
• The Crown’s case ultimately depended on identification evidence. The trial judge’s instruction on this evidence was accurate, full and fair. Obviously the identification evidence did not establish the respondent’s guilt beyond a reasonable doubt.

[3] The Crown has not satisfied us that if the trial judge erred in excluding the statement, the jury’s acquittal should be set aside and a new trial ordered.

[4] The Crown also submits that the trial judge did not properly deal with the respondent’s post-offence conduct and in particular erred in permitting the defence to lead the contents of the respondent’s statement to Constable Sullivan. It may well be that the Crown at trial opened the door to the admission of this evidence by the manner in which Crown counsel conducted the examination in chief. In any event, the Crown has not established that the verdict would not necessarily have been the same. The respondent’s statement to Constable Sullivan, while to some extent exculpatory, was not inconsistent with the Crown’s theory and its admission in no real sense undermined the prosecution case. We are also satisfied that the charge to the jury on consciousness of innocence could not have affected the verdict, since the evidence on that issue played such a minor role in the case.

[5] Finally, the Crown submits that the trial judge should have given a stronger charge to the jury concerning the victim’s statement to the police in the hospital. The trial judge on two occasions directed the jury that suggestions from counsel that are not adopted by the witness cannot constitute evidence of the truth of the matters asserted in the question. The second direction came immediately after that part of the victim’s testimony was reread to the jury. We see no basis for drawing the inference that the jury did not understand and apply the direction to the statement.

[6] Accordingly, the appeal is dismissed.

"Doherty J.A."

"M. Rosenberg J.A."

"K. Feldman J.A."