Her Majesty the Queen v. Sarrazin et al. [Indexed as: R. v. Sarrazin]

75 O.R. (3d) 485

[2005] O.J. No. 1404

Dockets: C35003, C36353 and C36384

Court of Appeal for Ontario,

Weiler, Sharpe and Blair JJ.A.

April 15, 2005

Criminal law -- Evidence -- Hearsay -- Trial judge erring in admitting out-of-court statements by deceased made between date of shooting and date of his death under principled exception to hearsay rule -- Trial judge erroneously relying on circumstances external to those surrounding making of statements, including consistencies and similarities between statements, in determining their threshold reliability -- Consistencies between statements not amounting to striking similarities.

Criminal law -- Trial -- Charge to jury -- Reasonable doubt -- "Miller" error -- Trial judge erring in instructing jury that even verdict of not guilty had to be based only on evidence that they accepted.

Criminal law -- Trial -- Language of trial -- Three accused charged jointly in shooting death of victim -- Two accused requesting trial in English and one accused requesting trial in French -- Trial judge not erring and not violating rights of accused under ss. 530 and 530.1 of Criminal Code in holding bilingual trial -- Combined effect of ss. 530 and 530.1 being to permit ordering of bilingual trial if circumstances warrant -- Severance not being mandatory where different accused who are alleged to have participated in common enterprise or conspiracy seek to be tried in different official languages of choice -- Criminal Code, R.S.C. 1985, c. C-46, ss. 530, 530.1.

The accused S and J were convicted of second degree murder and the accused C was convicted of manslaughter. The victim was shot outside a nightclub and died 26 days later. The killing was gang-related. It was the theory of the Crown that J and C distracted the victim while S shot him. The accused were all francophone. S and C, who had English-speaking counsel, requested a trial in English. J, who had French-speaking counsel, requested a French trial. The trial judge conducted a bilingual trial: the judge and jury spoke both official languages, and English and French were used interchangeably as the working languages, depending upon who was speaking and in what context. Interpretation and translation were available if needed. The trial judge admitted into evidence, under the principled exception to the hearsay rules, out-of-court statements made by the victim between the date of the shooting and the date of his death. The accused appealed their conviction.

Held, the appeal should be allowed.

The bilingual trial did not violate the right of the accused under the Criminal Code to be tried in the official language they chose. The combined effect of ss. 530 and 530.1 of the Code is to permit the ordering of a bilingual trial if the circumstances warrant. Where different accused, who are alleged to have participated in a common enterprise or conspiracy, seek to be tried in different official languages of choice, severance is not mandatory. It is for the trial judge, in the exercise of his or her discretion, to decide whether and when the circumstances warrant severance. In this case, the trial judge took all of the relevant factors into account in exercising his discretion and in determining that the circumstances warranted the holding of a bilingual trial. There was no basis for interfering with that exercise of discretion. [page486]

In determining the threshold reliability of the deceased's statements for the purpose of ruling on their admissibility under the principled exception to the hearsay rule, the trial judge found that he was entitled to rely upon circumstances external to those surrounding the making of the statements, including consistencies and similarities between the various statements. He erred in adopting that approach. In determining threshold reliability, the trial judge must have resort only to the surrounding circumstances under which the statement was made, and generally may not take into account matters extrinsic to those circumstances. There may be an exception to that rule where there is a striking similarity between the statements (the U. (F.J.) exception), but that exception did not apply here. The statements appeared to be more of an evolving work in progress than a consistent and strikingly similar repetition of the same story. In the context of U. (F.J.), it must also be apparent that the statements were not tainted by collusion and that the declarant had no knowledge of what others had said. Here there was a serious risk of collusion between the deceased and his brother and that he had received other information about what was being said about the shooting. Other indicia of reliability were absent as well. Some of the statements were audiotaped, but none were videotaped. The deceased was not under oath or affirmation or an adequate substitute therefore, and was not warned of the importance of telling the truth or of the potential penalties for not doing so. Four of the five statements should not have been admitted. They were significant to the Crown's case against all three accused. Their admission constituted an error that could not be cured by the proviso under s. 686(1)(b) of the Code.

Several months before C's arrest, the police went to his home to take a statement. He spoke to the police outside his apartment and in the police cruiser, and was driven to the police station, where he was placed in a locked room and where he gave a KGB statement, repeating what he had told the police at his home. He was not advised of his right to counsel and his right to remain silent. He was told that he was being interviewed as a witness, and not that the police were considering him a suspect. C was not detained when he made the statements, and his rights under ss. 7 and 10(b) of the Canadian Charter of Rights and Freedoms were not violated. When he was arrested several months later, C was advised of his right to counsel and his right to remain silent. He asserted his right to remain silent after speaking to counsel. The police continued to question him. In doing so, they did not violate his rights under s. 7 of the Charter. They were entitled to pursue their questioning in the face of C's assertion of his right to remain silent, provided they did not persist to the point where he was no longer able to exercise his free will in choosing whether to speak to them. There was no evidence of any inducement, threat, promise or oppressive or unfair conduct on the part of the officers to undercut the trial judge's finding that C's responses to the police questions were voluntary. The secondary caution given to C was flawed in that he was not warned that the fact that he had given earlier statements to the police ought not to influence his decision whether to speak to them again. However, the flaw in the caution went more to weight than to admissibility. Moreover, it was clear from the record that C was well aware that he had the right not to speak to the police. If, as was the case here, the trial judge properly considered the factual issues and made findings for which there is support on the record, the issue of voluntariness is largely one of fact and should not be overturned barring a palpable and overriding error. No such error was made here.

The trial judge erred in instructing the jury that even a verdict of not guilty had to be based only on evidence that they "accepted", the so-called "Miller" error. The jury was arguably left with the impression that they were not entitled to consider the absence of evidence as a factor that might give rise to a reasonable doubt. This was a significant error that could not be cured by the proviso. [page487]

APPEAL from the convictions imposed by Roy J. and a jury on June 30, 2000 and from the period of increased parole ineligibility ordered as part of the sentence imposed.

R. v. Beaulac, 1999 684 (SCC), [1999] 1 S.C.R. 768, [1999] S.C.J. No. 25, 173 D.L.R. (4th) 193, 238 N.R. 131, 62 C.R.R. (2d) 133, 134 C.C.C. (3d) 481 (sub nom. Beaulac v. Canada (Attorney General)), consd R. v. Miller (1991), 1991 2704 (ON CA), 5 O.R. (3d) 678, [1991] O.J. No. 2010, 68 C.C.C. (3d) 517, 9 C.R. (4th) 347 (C.A.); R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 148 Man. R. (2d) 161, 190 D.L.R. (4th) 591, 258 N.R. 250, 224 W.A.C. 161, [2000] 11 W.W.R. 1, 147 C.C.C. (3d) 449, 36 C.R. (5th) 1, apld R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764, [1995] S.C.J. No. 82, 128 D.L.R. (4th) 121, 186 N.R. 365, 101 C.C.C. (3d) 97, 42 C.R. (4th) 133, distd Other cases referred to Bilodeau v. Manitoba (Attorney General), 1986 64 (SCC), [1986] 1 S.C.R. 449, [1986] S.C.J. No. 27, 42 Man. R. (2d) 242, 27 D.L.R. (4th) 39, 67 N.R. 108, [1986] 3 W.W.R. 673, 25 C.C.C. (3d) 289; MacDonald v. Montreal (City), 1986 65 (SCC), [1986] 1 S.C.R. 460, [1986] S.C.J. 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(3d) 199, 24 C.R. (6th) 152 (C.A.); R. v. Diu (2000), 2000 4535 (ON CA), 49 O.R.(3d) 40, [2000] O.J. No. 1770, 133 O.A.C. 201, 144 C.C.C. (3d) 481, 33 C.R. (5th) 203 (C.A.); R. v. Edwards, 1998 11790 (QC CS), [1998] A.Q. no 1420, [1998] R.J.Q. 1471 (S.C); R. v. Forsey, 1994 16613 (QC CS), [1994] Q.J. No. 1144, 95 C.C.C. (3d) 354 (S.C.); R. v. Garcia, 1990 10979 (QC CS), [1990] R.J.Q. 2312, 58 C.C.C. (3d) 43 (S.C.); R. v. Gauvin, 1995 16754 (NB QB), [1995] A.N.-B. no 510, 169 N.B.R. (2d) 161, 434 A.P.R. 161 (Q.B.); R. v. Hawkins, 1996 154 (SCC), [1996] 3 S.C.R. 1043, [1996] S.C.J. No. 117, 30 O.R. (3d) 641n, 141 D.L.R. (4th) 193, 204 N.R. 241, 111 C.C.C. (3d) 129, 2 C.R. (5th) 245; R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, 47 B.C.L.R. (2d) 1, 110 N.R. 1, [1990] 5 W.W.R. 1, 49 C.R.R. 114, 57 C.C.C. (3d) 1, 77 C.R. (3d) 145; R . v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, [1990] S.C.J. No. 81, 41 O.A.C. 353, 113 N.R. 53, 59 C.C.C. (3d) 92, 79 C.R. (3d) 1; R. v. Khelawon, 2005 4775 (ON CA), [2005] O.J. No. 723, 195 O.A.C. 11, 194 C.C.C. (3d) 161, 26 C.R. (6th) 1 (C.A.); R. v. Lapointe and Sicotte, 1987 69 (SCC), [1987] 1 S.C.R. 1253, 21 O.A.C. 176, 76 N.R. 228, affg (1983), 1 O.A.C. 1, 9 C.C.C. (3d) 366 (C.A.), revg (1981), 64 C.C.C. (2d) 562 (Ont. Co. Ct.); R. v. Le, [2000] O.J. No. 4218 (S.C.J.); R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, [1997] S.C.J. No. 77, 118 Man. R. (2d) 218, 150 D.L.R. (4th) 733, 216 N.R. 215, 149 W.A.C. 218, [1997] 10 W.W.R. 570, 118 C.C.C. (3d) 1, 9 C.R. (5th) 1; R. v. McNamara, 1985 32 (SCC), [1985] 1 S.C.R. 662, [1985] S.C.J. No. 28 , 19 D.L.R. (4th) 314, 19 C.C.C. (3d) 1, 45 C.R. (3d) 289, affg (1981), 56 C.C.C. (2d) 193 (Ont. C.A.); R. v. Merz (1999), 1999 1647 (ON CA), 46 O.R. (3d) 161, [1999] O.J. No. 4309, 140 C.C.C. (3d) 259, 30 C.R. (5th) 313, 127 O.A.C. 1 (C.A.); R. v. Mills, 1993 4558 (NS SC), [1993] N.S.J. No. 316, 124 N.S.R. (2d) 317, 345 A.P.R. 317 (S.C.); R. v. Moonias, 2004 46817 (ON CA), [2004] O.J. No. 5050, 192 O.A.C. 327, 191 C.C.C. (3d) 341 (C.A.); R. v. Moran, 1987 124 (ON CA), [1987] O.J. No. 794, 21 O.A.C. 257, 36 C.C.C. (3d) 225 (C.A.); R. v. Oickle, [2000] 2 S.C.R. 3, [2000] S.C.J. No. 38, 2000 SCC 38, 187 N.S.R. (2d) 201, 190 D.L.R. (4th) 257, 259 N.R. 227, 585 A.P.R. 201, 147 C.C.C. (3d) 321, 36 C.R. (5th) 129; R. v. Perras, [1998] A.Q. no 2856 (S.C.); R. v. Potvin (2004), 2004 73250 (ON CA), 69 O.R. (3d) 641, [2004] O.J. No. 2550 (C.A.); R. v. Schneider, [2004] N.S.J. No. 314, 226 N.S.R. (2d) 110, 714 A.P.R. 110, 188 C.C.C. (3d) 137, 2004 NSCA 99 (C.A.); R. v. Simard (1995), 27 O.R. (3d) 116, [1995] O.J. No. 3989, 105 C.C.C. (3d) 461 (C.A.); [page488] R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, [1992] S.C.J. No. 74, 94 D.L.R. (4th) 590, 139 N.R. 323, 75 C.C.C. (3d) 257, 15 C.R. (4th) 133; R. v. Stockford, [2001] Q.J. No. 4449 (S.C.); R. v. Suzack and Pennet, 2000 5630 (ON CA), [2000] O.J. No. 100, (71 C.R.R. (2d) 1, 141 C.C.C. (3d) 449, 30 C.R. (5th) 346 (C.A.) [Leave to appeal to S.C.C. refused (2001), 80 C.R.R. (2d) 376n, 270 N.R. 193n]; Société des Acadiens du Nouveau- Brunswick Inc. v. Assn. of Parents for Fairness in Education, Grand Falls District 50 Branch, 1986 66 (SCC), [1986] 1 S.C.R. 549, [1986] S.C.J. No. 26, 69 N.B.R. (2d) 271, 27 D.L.R. (4th) 406, 66 N.R. 173, 177 A.P.R. 271, 23 C.R.R. 119 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 10(b), 16(3) Criminal Code, R.S.C. 1985, c. C-46, ss. 530, 530.1, 591, 686 [as am.] Authorities referred to Gruben, Vanessa"Bilingualism and the Judicial System", in Michel Bastarache, ed., Language Rights in Canada, 2nd ed. (Quebec City: Les Éditions Yvon Blais, 2004)

David Finley and Feroza Bhabha, for respondent. Russell Silverstein, for appellant Sarrazin. W. Mark Wallace, for appellant Jean. Patrick F.D. McCann, for appellant Cetoute.

The judgment of the court was delivered by

BLAIR J.A.: --

A. Introduction

Background

[1] Robert Sarrazin and Darlind Jean appeal their convictions for the second-degree murder of Apaid Noel, as well as convictions for lesser offences of using a firearm while committing an indictable offence and possession of a prohibited weapon. They also seek leave to appeal, and if leave is granted, appeal from the extended period of no parole for 18 years imposed by the trial judge on sentencing. The third appellant, Wolfson Cetoute, appeals from his conviction for manslaughter.

[2] Apaid Noel was shot outside of Ottawa's Theatre Nightclub in the early morning hours of February 19, 1998. He died 26 days later of a pulmonary embolism suffered after treatment and release from hospital but nonetheless caused by the shooting. The killing was gang-related.

[3] The defence called no evidence. It attacked the frailties of the Crown's evidence respecting the identity of the appellants [page489] as the participants in the crime - including line-up procedures followed by the police - and the inconsistencies between the testimony of the several Crown witnesses. Essentially, the defence asserted that on all of the evidence there was a reasonable doubt, and that the Crown had not met its burden of proving the appellants guilty.

The issues

[4] The appeal raises a number of difficult issues, the first of which relates to the language rights of the accused.

[5] The appellants are all francophone. At trial, Mr. Sarrazin and Mr. Cetoute -- who had English-speaking counsel -- requested a trial in English. Mr. Jean -- with francophone counsel -- requested a French trial. Although the trial judge made orders to give effect to those submissions, he conducted a bilingual trial.

[6] The appellants argue that a bilingual trial vitiated their right under the Criminal Code, R.S.C. 1985, c. C-46 to be tried in the official language they chose. Relying on the principles enunciated by the Supreme Court of Canada in R. v. Beaulac, 1999 684 (SCC), [1999] 1 S.C.R. 768, [1999] S.C.J. No. 25, 134 C.C.C. (3d) 481 and on the provisions of ss. 530 and 530.1 of the Criminal Code, they submit the trial judge was required by law to sever the proceedings and to order separate trials in English (for the appellants Sarrazin and Cetoute) and in French (for the appellant Jean). He could not conduct a bilingual trial.

[7] In addition, the appellants put forward a number of other common grounds of appeal. They submit that the trial judge erred:

(a) in admitting a series of out-of-court statements made by the deceased between the date of the shooting and the date of his death;

(b) in admitting expert evidence pertaining to street gangs, and to the membership of the appellants Sarrazin and Jean as members of the Crack Down Posse in particular;

(c) in instructing the jury that even a verdict of not guilty must be based only on evidence that they accept (the "Miller" error); and

(d) in instructing the jury with respect to:

(i) eyewitness identification;

(ii) motive; and

(iii) reasonable doubt. [page490]

[8] Mr. Cetoute raises separate issues concerning the admissibility of his statements made on May 21 and November 5, 1998. He submits the trial judge erred in failing to find that:

(a) he was detained at the time of the May 21 interview, and therefore entitled to be cautioned and advised of his rights under s. 10(b) of the Canadian Charter of Rights and Freedoms;

(b) his statements were involuntary;

(c) his right to remain silent was breached; and

(d) his November 5 statement was tainted by the denial of his right to counsel at the time of his May 21 statement, or by the lack of voluntariness of that statement.

[9] At the outset of the appeal, Mr. Wallace advised on behalf of all counsel that they were not pursuing the ground of appeal relating to the gang evidence. It is therefore unnecessary to deal with that issue.

[10] Finally, the appellants Sarrazin and Jean attack the trial judge's decision on sentencing to extend their period of parole ineligibility to 18 years.

Conclusions

[11] In my view, the trial judge's decision to admit the statements of the deceased, together with his instructions to the jury that even a verdict of not guilty must be based only on evidence that they accept, constitute reversible error as a result of which a new trial must be ordered. Given the importance of the language issue, and the fact that the judge hearing the new trial will require some direction in that regard, the language issue must be resolved as well. In my opinion, the trial judge did not err by conducting a bilingual proceeding in the circumstances, and in the fashion that he did. I would therefore not give effect to that ground of appeal.

[12] I do not agree that the trial judge erred in his instructions to the jury with respect to eyewitness identification, motive or reasonable doubt, and I do not accept the individual arguments raised on behalf of Mr. Cetoute. I would dismiss those grounds of appeal as well.

[13] Since I have concluded that a new trial must be ordered, it is unnecessary to deal with the appeal from sentence.

[14] My reasons for arriving at these conclusions follow. [page491]

B. Facts

The shooting

[15] The Crown's theory at trial was that in the early hours of February 19, 1998, the three appellants co-operated in murdering Apaid Noel outside of the Ottawa nightclub, where the victim and his brother, Aschley Noel, were handing out pamphlets promoting an event. The Crown says the appellants Jean and Cetoute distracted Mr. Noel while the appellant Sarrazin approached him from behind and shot him in the arm and the abdomen with a .12-gauge sawed-off shotgun.

[16] Apaid Noel was said to be a member of a Haitian street gang in Montreal called the Bo Gars (although he denied this to the police). Sarrazin and Jean were members of a rival street gang, the Crack Down Posse ("CDP"), and more specifically of an elite group of this gang known as the Kase Breeze ("KB"). The Crown's hypothesis was that Mr. Noel was murdered as part of an ongoing quarrel between the two gangs.

[17] Aschley Noel testified that there was a confrontation between Apaid and the three men before the shooting, during which the three appellants taunted his brother, telling him that he was going to die that night. One of them told Apaid that an individual called Emmanuel Zephir -- the CDP gang leader -- and Zephir's son were looking for him. The men left, then returned minutes later and the shooting occurred. Apaid was first shot in the arm. When the other two men encouraged the shooter to "finish him off", Apaid was shot again in the abdomen. Aschley then grabbed the gun from the shooter and a struggle ensued. The three men fled in a vehicle. The police found Aschley in a nearly hysterical state upon their arrival at the scene. They retrieved the gun from him.

[18] The identification of the victim's killers was the key issue at trial. Aschley -- whose testimony was strongly attacked as unreliable at trial -- gave a general description of the assailants and said the shooter was familiar to him but that he could not name him. Shortly after the shooting, as he was emerging from surgery and still drugged on morphine, Apaid identified the appellant Jean as one of the perpetrators, and the appellant Sarrazin as possibly the shooter. A few days later, Apaid more firmly identified Robert Sarrazin as the shooter. The doorman at the Theatre nightclub placed both Mr. Jean and Mr. Sarrazin, along with Emmanuel Zephir (and his son), in the club on the night of the shooting. Mr. Sarrazin voluntarily surrendered to the police on February 25, 1998, and Mr. Jean did so on March 3. [page492]

[19] Apaid Noel also told the police of a third perpetrator, whom he described but with respect to whom the police did not have a photograph on file. The appellant Cetoute became a suspect when the police obtained his name from Apaid Noel's girlfriend, and he was interviewed by the police on May 21, 1998. However, the police were not able to obtain a photo identification because they did not have a picture of Mr. Cetoute in the system until he was arrested on an unrelated charge in November. At that time - eight months after the shooting - Aschley identified Mr. Cetoute from a photo line-up. He was arrested on November 5.

The gang evidence

[20] Two members of the Montreal Urban Community Police Service ("MUCP") were called to give expert evidence regarding Haitian street gangs in Montreal and the gang affiliations of the various individuals. The trial judge permitted this evidence after a voir dire but agreed that it needed vetting. As a result, an agreed statement of facts was presented to the jury. Although the appellants attacked the admission of this evidence in their grounds of appeal, on the basis that the opinions were founded partly on informant privilege and the source of the information was not disclosed, and because of the prejudicial nature of some of the evidence, counsel withdrew this ground of appeal at the outset of the hearing.

[21] The agreed statement of facts established that:

-- The CDP and the Bo Gars were two of a number of rival Haitian street gangs in Montreal, and there was a history of violent conflict between them.

-- Darlind Jean and Robert Sarrazin were members of the CDP.

-- Emmanuel Zephir is the leader of the CDP.

-- Apaid Noel was a member of the Bo Gars.

-- There was no indication that Wolfson Cetoute or Aschley Noel were part of any street gang.

-- Street gangs often have identifying tattoos (Messrs. Sarrazin and Jean both had tattoos of a machine-gun with the words "KB Niggers" written above)

The statements of Wolfson Cetoute

[22] Sometime in March 1998, the police became aware of Mr. Cetoute's name and of the fact that he was associated with an [page493] address with which the other two appellants were also connected. They attempted to obtain a warrant for his arrest, but were unsuccessful, as they did not have sufficient evidence to establish reasonable and probable grounds. Mr. Cetoute remained a suspect, however, and on May 21, Sgts. Wisker and Lachance (who acted as translator) went to his home to take a statement. Mr. Cetoute spoke to the officers in the hallway outside the door of his apartment, and subsequently the conversation moved to the police cruiser at the officers' request. He was then driven voluntarily -- again, at the officers' request -- to the police station where he was placed in a locked room and where he gave a "K.G.B." statement, repeating more or less what he had told the police at his home. Mr. Cetoute was not told that the police considered him a suspect -- which they did -- but only that he was being interviewed as a witness. At no time was he advised of his right to counsel

[23] In May 1998, the police did not have a photograph of Mr. Cetoute. As explained above, however, they obtained a photo when he was later arrested on an unrelated charge in October 1998. Aschley Noel identified him from a photo line-up, and Mr. Cetoute was arrested on November 5, 1998, at the Ottawa courthouse, where he was making an appearance on the other charge. He was advised of his right to counsel upon his arrest and spoke to his lawyer before talking to the police. He told Sgt. Lachance that his lawyer had advised him not to say anything. Sergeant Lachance read him a secondary caution explaining that if he had spoken to anyone else downstairs those conversations should not influence him to say anything at that time and stating:

If you don't want to tell us something, you don't -- you don't have to say it. All they said, that doesn't have anything to do with today. Do you understand that if you want to talk, no problem. If you don't want to talk, no problem. It's your choice. Okay?

(Translation taken from Cetoute factum)

[24] However, Sgt. Lachance did not warn Mr. Cetoute that he was not obliged to repeat anything he had told the officers during their previous meeting in May. Moreover, Sgt. Lachance continued to question Mr. Cetoute notwithstanding the latter reiterated that his lawyer had advised him not to say anything and notwithstanding that Sgt. Lachance appreciated Mr. Cetoute was attempting to exercise his right to silence.

[25] During these interviews, Mr. Cetoute admitted that he was present at the club on the night in question. He was drinking with Messrs. Sarrazin and Jean who left the club four or five minutes before he did. When he went out he saw Darlind [page494] Jean and Robert Sarrazin talking with Apaid Noel. There was a quarrel. He heard shots and saw Mr. Noel on the ground. He did not see who the shooter was, and he denied any involvement in the shooting.

The statements of Apaid Noel

[26] The Crown tendered five out-of-court statements made by the deceased to the police between the date of the shooting and his death:

(a) February 19, 1998 (a non-verbal and a later verbal response to questions of the police officer);

(b) February 20, 1998 (a statement audio-taped at the hospital);

(c) February 25, 1998 (a statement recorded in officer's notes);

(d) March 3, 1998 (a statement recorded in officer's notes); and

(e) March 10, 1998 (a statement audio-taped at the hospital).

February 19

[27] At 3:02 a.m., while still at the shooting scene, the deceased was asked by Cst. Ghadban whether he knew who shot him. He nodded his head in a yes manner up and down, but said nothing. Later that day, at 6:13 p.m., while still in critical condition at the hospital, he told Sgt. Lachance that he did not know who had shot him, but that he had seen them before. There was not much controversy over the admissibility of these initial statements.

February 20

[28] Sergeant Lachance was unsuccessful in taking a statement from Apaid Noel when he first attended at the hospital on the morning of February 20. Later that day, however, Sgt. Lachance and Sgt. Wisker obtained an audio-taped statement. Mr. Noel was still groggy from his surgery, and in a great deal of pain. He was self-administering morphine, but indicated that he was willing to be interviewed. During the interview, he told the police that of the "three, maybe four" individuals involved in the shooting, he had seen two of the assailants before, but he did not know their names. The officers showed Mr. Noel two series of photographs (without first asking him for any description of the perpetrators of the crime, a deviation from standard procedure). He correctly identified "Darlind" from the line-up, [page495] stating that he was one of the persons present, and he recognized Mr. Sarrazin's photo, although he did not put a name to him. He tentatively -- but only tentatively -- linked that person with the shooting in the following passages:

Sgt. Wisker: Photograph number two. Do you recognize this person?

Apaid Noel: I seen him before.

Sgt. Wisker: Yes. When did you see him, Apaid?

Apaid Noel: I'm not sure. Maybe he was there.

Sgt. Wisker: Yes.

Apaid Noel: Maybe he was there.

Sgt. Wisker: He was one of the people that was there that night?

Apaid Noel: Maybe. I'm not really sure.

Det. Lachance: Do you want me to hold both of them?

Sgt. Wisker: Yes, if you just want to show the pictures again. There's two pictures there, Apaid, number two and number four (Sarrazin and Jean, respectively). Was one of these two gentlemen one of the people that shot you on Wednesday night? . . .

Apaid Noel: I think this one, number two.

Sgt. Wisker: Okay. You think it was number two that had the gun?

Apaid Noel: I think so.

Sgt. Wisker: Do you know why he shot you? Do you know what the reason was?

Apaid Noel: No. I never -- if it's number two. If it's number two who shot me. I never talked to him before. If he shot me. It's because they're friend.

Sgt. Wisker: Because of the friend? Because of his friend?

Apaid Noel: Yes.

Sgt. Wisker: And who is the friend?

Apaid Noel: They are that CDP.

Sgt. Wisker: They are all CDP? I'm sorry, is that what you said?

Apaid Noel: They are -- they are in CDP gang.

February 25

[29] Apaid Noel next spoke to the police on February 25. Sergeant Wisker attended at the hospital to check on the victim, [page496] not intending to take a statement, but when Mr. Noel awakened and saw the officer, he asked to speak to him. The interview was not recorded. Sergeant Wisker took notes.

[30] Mr. Noel asked to see the photos again. He named the individual in photo number 2 (the Sarrazin photo) as "Bobby", saying "That's the guy who shot me twice", and adding that he'd seen Bobby with Darlind before. He provided more details of the shooting, saying that the third suspect, who was younger and shorter and who had a scar over his right eye, participated by talking to him and distracting him. He said he remembered the third man saying after the shooting"Come on, Bobby, let's go."

March 3

[31] Sergeant Wisker and Det. Lachance went to the hospital to check on Mr. Noel again on March 3. Mr. Noel was much more alert and talkative than on the previous visits. He referred to an article that had appeared in the Ottawa Citizen showing photos of Mr. Sarrazin and Mr. Jean, and said"The photo in the Citizen is Bobby, not Robert, the guy who shot me." He added that the person had changed his hair from tight braids, and that he had seen him three times -- once before the shooting in Montreal, once at the time of the shooting, and the third time in the picture in the newspaper. Sergeant Wisker made notes of the main points of this conversation.

March 10

[32] The final statement was taken on March 10. It was audiotaped but did not conform to the "K.G.B." requirements as Mr. Noel was not sworn or affirmed and was not warned about the importance of telling the truth until the end of the interview. He was not drugged and he was expected to survive his injuries at the time.

[33] In the March 10 statement, Apaid Noel was more lucid than he had been on the previous occasions when he spoke to the police. He gave a more detailed version of what he said had happened at the time of the shooting. He explained that he and Aschley had arrived at the club at about 2:45 a.m. to distribute flyers about an event he was organizing for March 5, to people leaving the club. Darlind Jean came out of the club and began talking to him, as did a third person (whom he did not identify). They told him that Emmanuel Zephir and his son "were out" -- meaning out of jail -- and were looking for him. This was apparently in reference to an earlier incident during which Apaid Noel said he had been threatened by the son and as a result of [page497] which Mr. Noel had lodged a complaint with the police (a step that is frowned upon in the gang milieu). The guy nicknamed "Bobby" was with them. Mr. Jean and the third person continued to talk constantly to Mr. Noel and to occupy his attention. Then Bobby came up with a weapon and shot him in the arm. He fell to the ground. Bobby cocked the gun a second time and shot him in the back. Aschley succeeded in disarming Bobby and after a struggle the assailants fled. A woman came along and helped him.

[34] Mr. Noel was questioned about the gangs and about his attackers. He said he wasn't sure what "CDP" meant but he thought it might mean "Crack Down Posse". He denied being a member of the Bo Gars. He gave a description of each of the three attackers and his descriptions were not entirely consistent with those given by other witnesses, particularly by his brother Aschley. Amongst other things, he said that "Bobby" had braided hair on the night of the shooting, whereas Aschley said that the shooter had "short, shaved hair". He also said that Mr. Jean had a scar on his forehead, which is not the case.

[35] Sergeant Wisker admitted it was clear that some of the information Mr. Noel had was coming from Aschley and from what Aschley had heard through the Haitian grapevine.

[36] This was the last statement the police obtained from Apaid Noel. Although he became well enough to be released from the hospital, he suffered a pulmonary embolism while at home, and died on March 18.

C. Analysis

The language issue

[37] I shall address the language issue first.

[38] Section 530 of the Criminal Code, or its equivalent, was proclaimed in force in Ontario on December 1, 1979. Although the ordering of a "bilingual trial" is commonplace in many parts of the province, the point raised on this appeal -- that is, whether the provisions of ss. 530 and 530.1 of the Criminal Code permit the court to order a bilingual trial, in which the judge and counsel use both languages, as opposed to a trial in one official language before a bilingual trier -- has received scarce attention in Ontario jurisprudence. The appellants argue that such a trial deprives them of their absolute and substantive right to be tried in the official language of their choice. It is the first time this issue has come directly before this court.

[39] The issue arises here in the context of a joint trial in which the three accused are charged with engaging in a joint enterprise to murder the deceased. Thus, it must be considered [page498] in association with the well-established principle that those charged with carrying out a common enterprise or conspiracy should normally be tried together.

[40] I begin with the observation that the term "bilingual trial" is not always understood by everyone to mean the same thing. In R. v. Edwards, 1998 11790 (QC CS), [1998] A.Q. no 1420, [1998] R.J.Q. 1471 (S.C.), Beliveau J. discussed the confusion surrounding the use of the term. At para. 86 he drew a distinction between what he called "bilinguisme intégral" and "bilinguisme passif". The former he described as the type of trial in which all oral and documentary evidence is interpreted and translated in the two official languages: see R. v. Gauvin, 1995 16754 (NB QB), [1995] A.N.-B. No. 510, 169 N.B.R. (2d) 161 (Q.B.) as an example of this approach. The latter -- Beliveau J.'s preferred concept -- he described as a trial in which everyone speaks their own official language and is understood by everyone else who, if need be, may have recourse to translation or interpretation if it proves to be necessary. Provided this concept means the accused has the right to speak, to be understood, and to be spoken to in the official language of choice, the present case falls more into the latter category. When I use the term "bilingual trial" in these reasons I use it to describe a trial before a judge and jury who speak both official languages of Canada but in which both English and French are used interchangeably as the working languages, depending upon who is speaking and in what context, and interpretation and translation are available if needed. I think this meaning accords more with what is generally understood by that term in daily practice: the triers and prosecutors are bilingual, but the working language of others may be either official language, and translation/interpretation services are provided, should they be required.

[41] What happened in this case is that the trial judge initially gave effect to Mr. Jean's request for a trial in French, and to that of Messrs. Sarrazin and Cetoute for a trial in English, and made orders to that effect. Then, after considering all of the circumstances -- including the fact that the accused were charged with carrying out a joint enterprise -- he in effect made an order pursuant to s. 530(5) of the Code varying his initial orders and directing that the accused be tried before a judge and jury who speak both official languages of Canada. He conducted that trial in the bilingual fashion described above. The Crown opened to the jury in French, but made its closing address in English. The trial judge communicated with English-speaking counsel in English and with French-speaking counsel in French. He alternated between the two languages in his communications with and instructions to the jury. Counsel for Mr. [page499] Sarrazin and Mr. Cetoute conducted the trial, examined and cross-examined witnesses, and addressed the jury, in English. Counsel for Mr. Jean did so in French. Simultaneous translation from one language to the other was available to everyone (except the judge and jury). Nine witnesses testified in French and 29 in English, and were examined in the language of choice by counsel.

[42] The appellants argue that the trial judge erred in conducting such a trial. They say it resulted in the judge and the prosecutor not speaking the official language of their choice -- French, in the case of Mr. Jean, and English in the cases of Mr. Sarrazin and Mr. Cetoute -- for extended periods of time, thus undermining their basic right to a trial in the official language of their choice. They submit that even if the trial is ordered to take place before a judge or a judge and jury that speak both official languages of Canada, the working language of the trial must remain the official language of their choice, and ss. 530 and 530.1 of the Criminal Code must be interpreted accordingly.

[43] I do not accept this argument. In my opinion, the Code permits a "bilingual trial", if the circumstances warrant. Moreover, the right of an accused to be tried in the official language of his or her choice must be read together with the general principle favouring the joint trial of those charged with engaging in a common criminal enterprise. The trial judge properly exercised his discretion under s. 530(5) of the Criminal Code to order such a trial in the circumstances of this case. Everyone agrees that if such trial is permissible, the bilingual aspect of the trial was conducted in an impeccable fashion.

The [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) provisions dealing with language of the accused

[44] Part XVII of the Criminal Code deals with the language rights of an accused. Sections 530 and 530.1 are of particular relevance to this appeal, and provide the statutory framework for the accused's right to speak and to be understood at trial in his or her official language. They are considered to be examples of the principle of the advancement of the equality of status and use of the two official languages of Canada pursuant to s. 16(3) of the Canadian Charter of Rights and Freedoms: R. v. Simard (1995), 27 O.R. (3d) 116, [1995] O.J. No. 3989 (C.A.), at p. 128 O.R. The pertinent portions of these sections are as follows:

Language of accused

530(1) On application by an accused whose language is one of the official languages of Canada, made not later than ... [a series of time parameters set out in the section] ... [page500]

[the court] [^1] shall grant an order directing that the accused be tried before a [trier or triers] [^2], as the case may be, who speak the official language of Canada that is the language of the accused or, if the circumstances warrant, who speak both official languages of Canada.

Idem

(2) On application by an accused whose language is not one of the official languages of Canada, made not later than whichever of the times referred to in paragraphs (1)(a) to (c) is applicable, ... [the court] ... may grant an order directing that the accused be tried before a ... [trier or triers] ... who speak the official language of Canada in which the accused, in the opinion of ... [the court] ... can best give testimony or, if the circumstances warrant, who speak both official languages of Canada.

Accused to be advised of right

(3) [The court] before whom an accused first appears shall, if the accused is not represented by counsel, advise the accused of his right to apply for an order under subsection (1) or (2) and of the time before which such an application must be made.

Remand

(4) Where an accused fails to apply for an order under subsection (1) or (2) and ... [the court] ... before whom the accused is to be tried ... is satisfied that it is in the best interests of justice that the accused be tried before ... [a trier or triers] ... who speak the official language of Canada that is the language of the accused or, if the language of the accused is not one of the official languages of Canada, the official language of Canada in which the accused, in the opinion of the court, can best give testimony, the court may, if it does not speak that language, by order remand the accused to be tried by ... [a trier or triers] ... who speak that language or, if the circumstances warrant, who speak both official languages of Canada.

Variation of order

(5) An order under this section that an accused be tried before ... [a trier or triers] ... who speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony may, if the circumstances warrant, be varied by the court to require that the accused be tried before ... [a trier or triers] ... who speak both official languages of Canada.

Where order granted under section 530

530.1 Where an order is granted under section 530 directing that an accused be tried before a ... [trier or triers] ... who speak the official language that is the language of the accused or in which the accused can best give testimony, [page501]

(a) the accused and his counsel have the right to use either official language for all purposes during the preliminary inquiry and trial of the accused;

(b) the accused and his counsel may use either official language in written pleadings or other documents used in any proceedings relating to the preliminary inquiry or trial of the accused;

(c) any witness may give evidence in either official language during the preliminary inquiry or trial;

(d) the accused has a right to have a justice presiding over the preliminary inquiry who speaks the official language that is the language of the accused;

(e) except where the prosecutor is a private prosecutor, the accused has a right to have a prosecutor who speaks the official language that is the language of the accused;

(f) the court shall make interpreters available to assist the accused, his counsel or any witness during the preliminary inquiry or trial;

(g) the record of proceedings during the preliminary inquiry or trial shall include

(i) a transcript of everything that was said during those proceedings in the official language in which it was said,

(ii) a transcript of any interpretation into the other official language of what was said, and

(iii) any documentary evidence that was tendered during those proceedings in the official language in which it was tendered; and

(h) any trial judgment, including any reasons given therefore, issued in writing in either official language, shall be made available by the court in the official language that is the language of the accused.

R.S., 1985, c. 31 (4th Supp.), s. 94.

The effect of these provisions

[45] Section 530 thus provides for three types of trials, from a linguistic perspective, namely a trial before a trier or triers who (a) speak the official language of Canada that is the language of the accused, (b) speak the official language of Canada in which the accused can best give testimony, or (c) if circumstances warrant, speak both official languages of Canada. Section 530.1 outlines the rights of the accused, and the obligations of the state, in terms of the trial process, when such an order is made.

[46] Although the language of s. 530.1, by itself, would seem to indicate that its provisions do not apply in circumstances where the trial is ordered to be before a trier or triers who speak both official languages -- and some courts have held that [page502] to be the case [^3] -- the Supreme Court of Canada has said that s. 530.1 does apply where such an order is made. In Beaulac, Bastarache J. stated, at para. 49:

No argument was made concerning the discretion of the judge to order a trial before a judge and jury who speak both official languages of Canada as opposed to a trial before a judge and jury who speak only the language of the accused. There is therefore no issue to be decided with regard to the type of order that should have been made in the present case. I would only say on this question that the basic right of the accused is met in both cases. Therefore, s. 530.1 applies in both cases. Its provisions provide a useful back-drop against which the trial judge can determine, in his [or her] discretion, whether the circumstances of the case warrant the appointment of a judge, or a judge and jury who speak both official languages of Canada.

(Emphasis added)

[47] See also Vanessa Gruben"Bilingualism and the Judicial System", in Michel Bastarache, ed., Language Rights in Canada, 2nd ed. (Quebec City: Les Éditions Yvon Blais, 2004), at p. 206. Accordingly, while the thrust of the provisions of s. 530 is to afford the accused the right to choose the official language spoken and understood by the judge or judge and jury by whom he or she will be tried, the effect of the combination of ss. 530 and 530.1 is to ensure that this right is complimented by a trial process that is institutionally bilingual.

[48] Beaulac provides the Supreme Court of Canada's authoritative interpretation of ss. 530 and 530.1. The principles to be drawn from it are therefore worth summarizing for the purposes of this appeal. Mr. Beaulac had been tried three times for murder. In each proceeding he had requested a trial before a judge and jury who spoke both official languages. The British Columbia Supreme Court and the British Columbia Court of Appeal refused to accede to his demand, essentially because they were satisfied that, although francophone, he was fully able to speak and to understand English and that a bilingual trial was therefore unnecessary. When the matter reached the Supreme Court on this issue, after the third proceeding, the court directed that he be tried in a bilingual proceeding, with the provisions of s. 530.1 applying. Bastarache J. wrote [page503] the decision for the seven-member majority of the court [^4]. In his reasons he revisited three 1986 decisions in which the court had appeared to reverse an earlier purposive and liberal approach to the interpretation of language rights [^5], and reinstated that approach. He held, amongst other things, that:

(a) official language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada (para. 25);

(b) official language rights are a particular kind of right, distinct from the principles of fundamental justice and trial fairness (para. 41);

(c) these rights have a totally different origin and role, and are meant to protect official language minorities in Canada and to ensure the equality of status of French and English;

(d) the object of s. 530(1) is to provide an absolute right of the accused to equal access to courts, and to a trial in his or her official language of choice, where the request is made within the timeframes set out therein (para. 31);

(e) where the request is not made within the s. 530(1) timeframes but later under subsection 530(4), the granting of the order is a matter of discretion based upon what is in the best interests of justice; nonetheless the basic principle is that generally, owing to the importance of official language rights and the stated intention of Parliament to ensure the equality of French and English in Canada, the best interests of justice will be served by accepting the accused's request to be tried in his or her official language (para. 42);

(f) the s. 530 rights are substantive rights, not procedural ones, and the courts called upon to deal with criminal matters are required to be institutionally bilingual in order to provide for equal use of the two official languages in Canada; and that, [page504]

(g) because language is very personal in nature and an important part of an accused's cultural identity, the concept of "language of the accused" is to be interpreted purposively and liberally, and that criteria will be met where the court is satisfied that the accused is able to instruct counsel and follow the proceedings in the chosen language (paras. 32-34).

[49] With these principles and background in mind, then, is it appropriate to order a bilingual trial in the face of a request for a trial in one of the official languages -- in this particular case, in the face of opposing requests for a trial in different official languages by different accused?

[50] I start with the observation that Parliament has not used the term "bilingual trial" in Part XVII of the Code. Thus, the wording of s. 530, taken by itself, may be open to the interpretation advanced by the appellants -- that is, that Parliament was concerned with the linguistic characteristics of the trier or triers and not with the linguistic procedure at trial. I would not give effect to this interpretation, however, particularly when ss. 530 and 530.1 are read together, and in light of the purposive approach prescribed in Beaulac.

[51] First, if the appellants are correct -- that is, if the only difference between the three types of orders referred to above is the difference between a unilingual and a bilingual trier of fact and law, with the working language of the trial always remaining that of the accused's choice -- there is no need for the statute to provide for the alternative of a bilingual trier in order to preserve the linguistic rights of the accused. The linguistic rights of an accused to a trial in the official working language of his or her choice, before a judge or judge and jury who speak that official language, are equally preserved where the trial takes place before triers who are bilingual (and who, therefore, speak and understand that language of choice): Beaulac, para. 49. By definition, a trier who is bilingual fits the description of a trier "who speaks the official language of Canada that is the language of the accused" or in which the accused can best give testimony. There is therefore no need to provide specifically for a trial before a trier who speaks both official languages of Canada unless Parliament had something else in mind when it provided for the third type of order.

[52] Since ss. 530 and 530.1 provide the statutory framework for the linguistic rights of an accused at trial, Parliament must have been directing its mind to something relating to the trial process. What it intended to provide for, in my opinion -- where circumstances warrant -- is a trial process where the judge or judge and jury are bilingual (s. 530) and in which the [page505] working language of the trial is both French and English, depending upon who is speaking (s. 530.1(a) -- (e)), with interpretation and translation services available to be utilised where needed (s. 530.1(f)û(h)).

[53] Two decisions at the trial level provide some useful insight into what Parliament had in mind in providing for a trial in both official languages. In R. v. Gauvin, supra, Deschênes J. (as he then was) canvassed various factors underlying the rationale behind s. 530. Gillese J. (as she then was) did the same thing in R. v. Le, [2000] O.J. No. 4218 (S.C.J.). The following may be gleaned from those decisions:

(a) A bilingual judge and jury permits witnesses to testify in the official language of their choice but to be understood without the filtering process of interpretation;

(b) documents and exhibits can be understood by the triers in the language in which they come before the court;

(c) the accused can retain counsel who speaks either English or French and who will have the right and ability to use either language for all purposes throughout the trial;

(d) should the accused decide to testify, he or she can do so in either official language, and "tell [the] story directly without the wall of interpretation" (Le, para. 53);

(e) the presiding judge speaks both official languages, thus recognizing the right of the accused to have the presiding judge speak the language of his or her choice;

(f) the triers of fact are able to weigh the evidence as given by witnesses for both the Crown and the defence in the two official languages;

(g) the need for translation of all exchanges between counsel and the judge -- often lengthy throughout a trial, and frequently complex, rapid and difficult to decipher -- is greatly diminished;

(h) importantly, addresses to the jury can be given by counsel for the accused in the language of choice [^6]; and[page506]

(i) there may be situations where several accused, whose official language is not the same, must be tried jointly for reasons that can't be avoided (Gauvin, at para. 28).

[54] These factors all buttress the view that Parliament intended to provide for more than simply bilingual triers with its addition of the phrase "if the circumstances warrant, [before a judge or judge and jury] who speak both official languages of Canada". The something more Parliament intended to provide was the option of a bilingual trial, in the sense outlined above.

[55] I note that, although the precise point here raised was not in issue, this court has implied in at least two cases -- one post-dating Beaulac -- that a bilingual trial may be ordered in appropriate circumstances: see R. v. Beaulieu, supra (Lacourcière, Arbour and Labrosse JJ.A.), and R. v. Potvin (2004), 2004 73250 (ON CA), 69 O.R. (3d) 641, [2004] O.J. No. 2550 (C.A.), at paras. 23-25 and 37 (Labrosse, Weiler and Charron JJ.A.). Moreover, Beaulac itself was a case in which a bilingual trial was ordered.

[56] Some support for this theory is found as well in the Vanessa Gruben article in the Bastarache text, Language Rights in Canada, supra, at p. 203, where the author states:

It seems absurd to interpret section 530 as not authorizing a bilingual joint proceeding where the co-accused wish to proceed in different official languages. Section 530 requires that courts dealing with criminal matters be institutionally bilingual. In our view, where a court is truly bilingual, neither the administration of justice nor the accused's right to a fair trial will be jeopardized where a bilingual proceeding is conducted.

[57] Potvin makes it clear that the judge and prosecutor must not only speak and understand the official language chosen by the accused, they must use it: paras. 32-33. However, I do not read this as requiring the judge and prosecutor to use that language exclusively if circumstances warrant a bilingual trial, without severance, where multiple accused in a common enterprise or conspiracy case have elected to be tried in different official languages.

Severance

[58] In this case, the Crown's theory is that the appellants acted in concert in murdering Apaid Noel.

[59] The law respecting severance under s. 591(3) of the Criminal Code in common enterprise/conspiracy cases is well established: unless it can be shown that a joint trial would result in an injustice to an accused, it is generally in the interests of justice that such persons be tried jointly. There are strong policy reasons for this principle: joint trials enhance the truth-finding exercise and preclude the possibility of inconsistent verdicts; they [page507] spare all those concerned, and ultimately the community, the expense (financial and emotional), inconvenience to witnesses, and institutional stress associated with multiple trials of the same issues. See R. v. Crawford, 1995 138 (SCC), [1995] 1 S.C.R. 858, [1995] S.C.J. No. 30, 96 C.C.C. (3d) 481, at paras. 28-32; R. v. McNamara (1981), 1981 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont. C.A.); and R. v. Suzack and Pennet, 2000 5630 (ON CA), [2000] O.J. No. 100, 141 C.C.C. (3d) 449 (C.A.). Therefore, unless it can be said that severance is required in all cases where there is an alleged common enterprise or conspiracy, and the co-accused make conflicting language choices, the appellants' requests to be tried in different official languages -- and the separate trials that would flow logically from giving effect to those requests -- must be weighed in the context of the foregoing principles.

[60] The appellants Sarrazin and Cetoute contend that, having requested and been granted an English trial, they should not be required to listen to the judge and Crown communicate during parts of that trial in French. The appellant Jean makes the opposite point with respect to English. They say their basic linguistic rights are not protected in such circumstances. The appellants submit that a bilingual trial does not respect their substantive right to be tried in the language of their choice and that, in the words of s. 591(3) of the Criminal Code, it was therefore "in the interests of justice" to sever their trials to ensure that their language rights were recognized.

[61] The linguistic rights provided by ss. 530 and 530.1 are important and fundamental rights in the context of the administration of justice and the preservation of minority linguistic and cultural rights. Like all rights, however -- even Charter as opposed to statutory rights -- they are not absolute. They must be balanced against other values and principles in society if the circumstances warrant such a balancing exercise. There is no principle of law that an accused's statutory language rights under ss. 530 and 530.1 trump severance considerations in all cases, in my view.

[62] There is a suggestion in Beaulac that separate trials may be called for in cases where there are multiple accused making different language choices. In delineating a list of factors to be considered by the court in exercising its discretion under s. 530(4) -- where the request for a trial in one or other of the official languages has not been made in a timely fashion -- Bastarache J. included a reference to "the fact that there may be co-accuseds (which would indicate the need for separate trials)" (para. 38). I do not read this comment as mandating severance in all such cases. Rather, the decision whether to grant severance, and separate language trials, is a matter of discretion to be exercised [page508] in the circumstances of each case, in accordance with the principles enunciated in Beaulac with respect to language rights, and the principles that govern severance with respect to severance.

[63] That is the basis upon which a number of decisions involving common enterprise allegations have turned.

[64] In a pre-Charter Ontario case, for instance, Judge Grayburn of the Ontario County Court ordered a bilingual trial in a situation where the accused were charged jointly in relation to several robberies and one accused requested a trial in French while the other asked for a trial in English: see R. v. Lapointe and Sicotte (1981), 1981 3243 (ON SC), 64 C.C.C. (2d) 562 (Ont. Co. Ct.). In R. v. Le, supra, Gillese J. ordered a bilingual trial as sought by the Crown, in spite of one co-accused's request for a French trial. She did so in the exercise of her discretion under s. 530(4), relying on Beaulac (at para. 49) for the proposition that the basic right of an accused is met both in the case of a French trial and a bilingual trial. There was no suggestion in Le that the court did not have the jurisdiction to order a bilingual trial if the judge felt the circumstances warranted it.

[65] On the other hand, it may be appropriate to grant a severance in certain cases. In R. v. Stockford, [2001] Q.J. No. 4449 (S.C.), and R. v. Forsey, 1994 16613 (QC CS), [1994] Q.J. No. 1144, 95 C.C.C. (3d) 354 (S.C.), Rejean Paul J. and Fraser Martin J., respectively, declined to order bilingual trials in large multi-accused drug conspiracy cases because they were satisfied the accused would not get a fair trial if they did so. They ordered severance in the circumstances of those cases. Neither held that severance was mandated by the conflicting language choices of the accused, though.

[66] Paul J. concluded in Stockford that "given the huge task of the jury in this complex case, it would create a procedural nightmare to the judge, the jury, the attorneys and the applicant, if there was to be a aebilingual trial'" (para. 7). Although he cited Beaulac as authority for an accused's absolute right to be tried in the official language of his or her choice (if the request is made in a timely fashion, as required), he did not cite it for the proposition that severance was mandatory in such circumstances. In Forsey -- the authority relied upon most strongly by those who argue that a bilingual trial is not permissible under the Code -- Martin J. expressed the initial view that s. 530(4) of the Code does not contemplate a "bilingual" trial (p. 358 C.C.C.), resting that supposition primarily on procedural fairness grounds. In the end, however, he acknowledged that the wording of s. 530(4) may be "sufficiently wide to encompass a situation involving jointly indicted accused, some speaking French and others English", although he added that the wording was [page509] not sufficiently broad "to sanctify the principle that persons engaged in a common enterprise should invariably be jointly tried" (emphasis added) (p. 364 C.C.C.). Ultimately, he ruled, it was "a question of balance and discretion", and in the circumstances he was satisfied that the Anglophone accused's right to a fair trial risked being compromised unless he was tried in English (p. 364 C.C.C.).

[67] Other Quebec Superior Court decisions have taken a different approach, however. See R. v. Garcia, 1990 10979 (QC CS), [1990], R.J.Q. 2312 58 C.C.C. (3d) 43 (S.C.) (Barrette-Joncas J.); R. v. Edwards, supra (Beliveau J.); R. v. Perras, [1998] A.Q. No. 2856 (S.C.) (L. Côté J.) (although the request for a bilingual trial was refused in the circumstances). In a comprehensive review of all the authorities, Beliveau J. concluded, in Edwards, that the jurisprudence, in keeping with the provisions of s. 530 of the Code, supports the power of the court to order a bilingual trial in such circumstances.

[68] In R. v. Schneider, supra -- a post-Beaulac decision -- the Nova Scotia Court of Appeal upheld the ruling of a provincial court judge, confirmed by a superior court judge, ordering a bilingual trial of two jointly-charged accused who spoke different official languages, instead of ordering severance and unilingual trials in the language of their choice. The court ruled that the lower court judges had respected the s. 530 language rights of the accused and had properly acted within their discretion under s. 530(5) of the Code. In reaching this decision, it relied upon the principles set out in Beaulac, without any indication that it considered the Supreme Court of Canada to have determined that severance was required in such circumstances.

Conclusion with respect to the language issue

[69] I am satisfied on the basis of the foregoing, therefore, that the combined effect of ss. 530 and 530.1 of the Criminal Code is to permit the ordering of a bilingual trial in the sense that I have used that term in these reasons, as the statute says"if the circumstances warrant". Where different accused, who are alleged to have participated in a common enterprise or conspiracy, seek to be tried in different official languages of choice, severance is not mandatory. It is for the trial judge, in the exercise of his or her discretion, to decide whether and when the circumstances warrant severance and an individual trial. As Doherty J.A. noted in R. v. Suzack and Pennett, supra, at p. 485 C.C.C. -- albeit in a somewhat different context -- "[a]n accused's right to a fair trial does not ... entitle that accused to exactly the same trial when tried jointly as the accused would have had had he been tried alone". [page510]

[70] Here, the trial judge took all of the various factors into account -- linguistic and otherwise -- in exercising his discretion and in determining that the circumstances warranted the holding of a bilingual trial. As many authorities have stated, the exercise of that discretion is entitled to considerable deference. I see no basis in this case for interfering with it, and I would not give effect to this ground of appeal.

The statements of Apaid Noel

[71] I turn next to the admissibility of the statements of the deceased, Apaid Noel.

[72] The trial judge ruled that all of Mr. Noel's statements were admissible as proof of the truth of their contents because they met the twin tenets of necessity and reliability that form the basis for the principled exception to the hearsay rule: see R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, [1990] S.C.J. No. 81, 59 C.C.C. (3d) 92; R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, [1992] S.C.J. No. 74, 75 C.C.C. (3d) 257; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 147 C.C.C. (3d) 449; and R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764, [1995] S.C.J. No. 82, 101 C.C.C. (3d) 97.

[73] In this case necessity is not an issue, as Mr. Noel died before the trial and was not available to testify. The issue is whether the statements meet the test of threshold reliability. In that regard, the following statement of Lamer C.J.C. in Smith, at p. 933 S.C.R., p. 270 C.C.C., is instructive:

The criterion of "reliability" -- or, in Wigmore's terminology, the circumstantial guarantee of trustworthiness -- is a function of the circumstances under which the statement in question was made. If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence may be said to be "reliable", i.e., a circumstantial guarantee of trustworthiness is established.

[74] In deciding to admit the various statements of Apaid Noel, the trial judge concluded that he was entitled to rely upon circumstances external to those surrounding the making of the statements in determining their threshold reliability, including consistencies and similarities between the various statements made by Mr. Noel. In this latter regard, he relied upon the principle enunciated by Lamer C.J.C. in R. v. U. (F.J), supra, to the effect that in rare cases threshold reliability may sometimes be established by "a striking similarity between two statements" (para. 40). Respectfully, he erred in adopting that approach in the circumstances of this case.

[75] In fairness to the trial judge, Starr had not yet been released by the Supreme Court of Canada when the decision on [page511] admissibility of the Apaid Noel statements had to be made. In Starr, Iacobucci J. stated, at paras. 215 and 217:

... Threshold reliability is concerned not with whether the statement is true or not; that is a question of ultimate reliability. Instead, it is concerned with whether or not the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness. ...

At the stage of hearsay admissibility the trial judge should not consider the declarant's general reputation for truthfulness, nor any prior or subsequent statements, consistent or not. These factors do not concern the circumstances of the statement itself. Similarly, I would not consider the presence of corroborating or conflicting evidence. On this point, I agree with the Ontario Court of Appeal's decision in R. v. C. (B.) (1993), 1993 8564 (ON CA), 12 O.R. (3d) 608, 80 C.C.C. (3d) 467; see also Idaho v. Wright, 497 U.S. 805 (1990). In summary, under the principled approach a court must not invade the province of the trier of fact and condition admissibility of hearsay on whether the evidence is ultimately reliable. However, it will need to examine whether the circumstances in which the statement was made lend sufficient credibility to allow a finding of threshold reliability.

(Underlining added)

[76] This court has repeatedly held -- both before and after Starr -- that, in determining threshold reliability, the trial judge must have resort only to the surrounding circumstances under which the statement was made, and generally may not take into account matters extrinsic to those circumstances: see, for example, R. v. Khelawon, 2005 4775 (ON CA), [2005] O.J. No. 723, 194 C.C.C. (3d) 161 (C.A.), per Blair J.A. dissenting in part, but not on this point; R. v. Czibulka, 2004 22985 (ON CA), [2004] O.J. No. 3723, 189 C.C.C. (3d) 199 (C.A.); R. v. Merz (1999), 1999 1647 (ON CA), 46 O.R. (3d) 161, [1999] O.J. No. 4309 (C.A.); and R. v. Conway (1997), 1997 2726 (ON CA), 36 O.R. (3d) 579, [1997] O.J. No. 5224, 121 C.C.C. (3d) 397 (C.A.). As noted in Khelawon, this principle from Starr has been the subject of considerable academic criticism, but it remains the law in this province unless and until it is revised by the Supreme Court of Canada.

[77] There may be a small group of exceptions to the no- corroborative-evidence rule articulated in Starr, but in my view none applies here. The trial judge relied upon U. (F.J.), supra. In that case, two declarants made strikingly similar statements. Here, the trial judge concluded there were sufficient consistencies and similarities in the various statements made by Mr. Noel that the reliability requirement was met -- as he said -- when taken together with the other "real evidence" (he did not say specifically what other "real evidence" he was referring to).

[78] I disagree. Given the law as it presently stands, the trial judge was not entitled in this case to take into account extrinsic evidence unrelated to the circumstances surrounding the making of the statements unless he could do so through the application of [page512] the U. (F.J.) exception. The statements in this case do not meet the requirements of the U. (F.J.) exception, however. While there may be some "consistencies" within the various statements made by Apaid Noel, mere consistencies are not sufficient. What is required for the U. (F.J.) exception to be relevant are "striking similarities". They do not exist here. Indeed, the statements appear to be more of an evolving work in progress than a consistent and strikingly similar repetition of the same story. I do not think the principles of U. (F.J.) can be invoked in the circumstances of this case.

[79] Moreover, it is clear from the remarks of Chief Justice Lamer in U. (F.J.) that before the fact of striking similarity between two or more statements can be taken into account to bolster threshold reliability, it must be apparent that the statements are not tainted by collusion, prior knowledge by the declarant of what others are saying, or improper influence by authorities (see paras. 40-44). Here, there were very serious risks of Mr. Noel's statements being corrupted by collusion with his brother, Aschley, and by other information he had received.

[80] The trial judge recognized this problem, but in my respectful opinion misapprehended the significance of the risk in the circumstances. Aschley and other members of his family were constant visitors at the hospital. There is evidence of Aschley attempting to influence the statements of other witnesses while at the police station. Sergeant Wisker acknowledged that -- at least with respect to the last, and most lucid and complete statement -- some of the information had clearly come from Aschley and, through him, from the Haitian grapevine. While the statements at the scene on February 19, and the February 20 statement at the hospital just after Mr. Noel's surgery, would not have been affected by collusion, the danger of Apaid Noel's other statements being contaminated is simply too great, in my opinion, for the statements made after February 20 to meet the threshold reliability test for admissibility.

[81] Although there appears to be an absence of collusion tainting the February 20 statement, there are other frailties attaching to it that undermine its threshold reliability. Mr. Noel had just come through major surgery. The pain he was experiencing and the medication he was taking were factors affecting his perception and memory, and therefore the reliability of the statement taken in such circumstances. The trial judge recognized these difficulties, but felt that the danger posed by the medication was offset by the striking similarities between Mr. Noel's various statements. Since U. (F.J.) is not applicable in the circumstances, however, this countervailing factor in relation to the effects of [page513] medication is not available to save the February 20 statement. In addition, to the extent that Mr. Noel was mindful and aware of what he was saying, there is evidence that he may well have had a motive to fabricate the February 20 statement, and his later statements, as he and the persons he accused were members of rival gangs. Motive to fabricate is an important consideration on the question of threshold reliability: see Czibulka, supra.

[82] Other indicia of reliability are absent as well. While the audiotaped versions of the statements taken on February 20 and March 10 assist in ensuring the accuracy of what was said in those statements, and while an audiotaped account and other evidence may provide some indications of demeanour, the absence of a videotaped version denies the trier the full ability to assess the demeanour of Mr. Noel when he was making the statements. The lack of an oath or affirmation, or any adequate substitution for an oath or affirmation, is also a factor undermining the reliability of the statements. Mr. Noel was not warned of the importance of telling the truth or of the potential penalties for not doing so, except for the last statement on March 10, and then only at the end after the statement had been made. See R. v. B. (K.G.) [infra] at pp. 791-92 S.C.R., p. 291 C.C.C. and pp. 795-96 S.C.R., p. 294 C.C.C.; R. v. Diu, 2000 4535 (ON CA), [2000] O.J. No. 1770, 49 O.R. (3d) 40, at para. 79; R. v. Conway, supra; and R. v. Moonias 2004 46817 (ON CA), [2004] O.J. No. 5050, 2004 CarswellOnt 5210 (C.A.), at para. 13. These safeguards are missing from the Noel statements.

[83] The trial judge was cognizant of the relevant pre-Starr authorities regarding threshold reliability, and of the need for him "to identify the specific hearsay dangers raised by the statement(s), and then [to] determine whether the facts surrounding the utterances of the statement(s) offer sufficient circumstantial guarantees of trustworthiness to compensate for those dangers": R. v. Hawkins, 1996 154 (SCC), [1996] 3 S.C.R. 1043, [1996] S.C.J. No. 117, 111 C.C.C. (3d) 129, at para. 75. The specific dangers associated with hearsay are the absence of cross- examination, the absence of an oath or affirmation, and the inability of the trier to see the declarant at the time the statement is made in order to assess demeanour, etc.: R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22, 79 C.C.C. (3d) 257, at pp. 786-88 S.C.R., pp. 287-88 C.C.C. However, while he alluded to the potential impact of such factors as the deceased's medication and the possibility of collusion between the Noel brothers and others, the trial judge did not focus his mind on these traditional evidentiary dangers -- particularly the need for an adequate substitute for cross- examination in the circumstances of such potential collusion and the potential motive to fabricate. To the extent that he did consider these dangers, he [page514] compounded the problem by discounting them through resort to impermissible extrinsic evidence and the U. (F.J.) principle, which was inapplicable in the circumstances.

[84] For the foregoing reasons, I am satisfied that the trial judge erred in ruling that the statements of Apaid Noel (except the one made on February 19, the date of the incident) were substantively admissible. These statements were significant to the Crown's case against all three accused. Their admission constituted an error that cannot be cured by the proviso under s. 686(1)(b) of the Criminal Code, and a new trial must therefore be ordered.

The statements of Wolfson Cetoute

[85] Mr. McCann argues that the trial judge erred in admitting Mr. Cetoute's statements for the following reasons. First, he submits that Mr. Cetoute was "detained" at the time he gave his statements on May 21 and was therefore deprived of his right under s. 7 of the Charter to remain silent and of his s. 10(b) right to counsel. Secondly, he submits that the November 5 statement is tainted by the frailties of the first statements and could not be admitted for the same reasons. In addition, he argues that the November 5th statement is inadmissible because the police denigrated the advice Mr. Cetoute received from counsel and because the police persisted in questioning the appellant even though the appellant advised them that his lawyer had told him to say nothing and tried to invoke his right to remain silent.

[86] I do not accept these submissions.

[87] The trial judge gave a considered and lengthy ruling on this issue. He considered the relevant authorities and made findings concerning the voluntariness of the statements. Mr. Cetoute did not testify on the voir dire. After reviewing all of the facts relating to the taking of the statement and after considering the conduct of the police and Mr. Cetoute's participation in giving the statement, the trial judge found (1) that the police did not have reasonable and probable grounds to arrest Mr. Cetoute at the time of the May 21 statement, (2) that he was not detained at that time and (3) that the statement was voluntary and not made as the result of any inducement, threat, promise, trickery, coercion or unfair conduct on the part of the police. There is ample support in the record for these findings. As the Supreme Court has noted, in respect of voluntariness: "If a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for aesome palpable and overriding error which affected [the trial judge's] assessment of the facts'": R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, [2000] S.C.J. No. 38, 147 C.C.C. (3d) 321, at para. 71. [page515]

[88] In oral argument, counsel focussed on the detention issue in relation to the May 21 statement because it follows that if the appellant were being detained at the time the statement was made, his right to silence was engaged and he was entitled to be advised of his right to consult counsel, pursuant to ss. 7 and 10(b) of the Charter, respectively. In R. v. Moran, 1987 124 (ON CA), [1987] O.J. No. 794, 36 C.C.C. (3d) 225 (C.A.), Martin J.A. outlined a non-exhaustive list of factors, or combination of factors, that should be examined in determining whether or not a person has been detained by police. They are (pp. 258-59 C.C.C.):

1. The precise language used by the police officer in requesting the person who subsequently becomes an accused to come to the police station, and whether the accused was given a choice or expressed a preference that the interview be conducted at the police station, rather than at his or her home;

2. whether the accused was escorted to the police station by a police officer or came himself or herself in response to a police request;

3. whether the accused left at the conclusion of the interview or whether he or she was arrested;

4. the stage of the investigation, that is, whether the questioning was part of the general investigation of a crime or possible crime or whether the police had already decided that a crime had been committed and that the accused was the perpetrator or involved in its commission and the questioning was conducted for the purpose of obtaining incriminating statements from the accused;

5. whether the police had reasonable and probable grounds to believe that the accused had committed the crime being investigated;

6. the nature of the questions: whether they were questions of a general nature designed to obtain information or whether the accused was confronted with evidence pointing to his or her guilt;

7. the subjective belief by an accused that he or she is detained, although relevant, is not decisive, because the issue is whether he or she reasonably believed that he or she was detained. Personal circumstances relating to the accused, such as low intelligence, emotional disturbance, youth and lack of sophistication are circumstances to be considered in determining whether he had subjective belief that he was detained.

[89] Martin J.A. emphasized that none of the foregoing factors -- either alone, or taken together with others -- is necessarily determinative in a particular case. In particular, the fact that the person questioned may be a suspect at the time, as was the case here, is not determinative by itself of the issue of detention. The trial judge reviewed the evidence before him as it related to each of the Moran criteria, including the fact that Mr. Cetoute was a [page516] suspect at the time, and found that the appellant was not being detained either during the first statement in the police car outside of Mr. Cetoute's residence or during the "K.G.B." statement taken at the police station on May 21. There is no basis for interfering with this finding.

[90] Accordingly, neither the appellant's s. 7 right to silence nor his s. 10(b) right to counsel was triggered, and the statement is not rendered inadmissible as a result of a breach of those Charter provisions. I would not interfere with the trial judge's decision to admit the May 21 statement of Mr. Cetoute.

[91] Nor would I interfere with the decision to admit the November 5 statement. This statement was taken in "K.G.B." fashion at the police station following Mr. Cetoute's arrest for the murder of Apaid Noel. He was properly cautioned and accorded his right to speak to counsel, which he did. Counsel advised him to say nothing. In spite of that advice, and although he reminded the police officers of it on occasion, he nonetheless gave them his statement.

[92] Apart from the submission that the November 5 statement is tainted with the flaws of the May 21 statement -- which cannot prevail in view of the foregoing analysis -- Mr. McCann submits that the former statement should not have been admitted into evidence for three reasons. First, the police officers undermined the appellant's right to remain silent, and the voluntariness of the statement, by denigrating the advice Mr. Cetoute received from his counsel. Secondly, they violated his right to remain silent by continuing to question him after he had told them his lawyer had advised him to say nothing. Thirdly, they failed to administer a proper "secondary caution". In my view, none of these arguments can succeed.

[93] At the beginning of the interview, Sgt. Lachance asked the appellant who his lawyer was, and the following conversation took place:

Q: What's your lawyer's name?

A: Jean Richer.

Q: Jean Richer. And did you talk to him concerning this -- this murder charge?

A: Jean Richer told me, he told me not to say anything.

Q: No, but did you tell him that you've been charged with murder?

A: Yes, I told him everything.

(Underline added)

[94] The underlined question constitutes the impugned comment by the police. In my opinion, it cannot reasonably be taken as a denigration of counsel's advice, in the circumstances. [page517]

[95] The police investigators were entitled to pursue their questioning of the appellant, even though he was endeavouring to assert his right to remain silent, provided they did not persist to the point where Mr. Cetoute was no longer able to exercise his free will in choosing whether to speak to them: R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, at para. 73. Here, the trial judge considered the record before him -- including the videotape of the interview, which enabled him to assess what happened at the interview -- and concluded the statement was voluntary. There is no evidence of any inducement, threat, promise, or oppressive or unfair conduct on the part of the interviewing officers, to undercut that finding.

[96] Finally, the Crown acknowledges that the secondary caution given to Mr. Cetoute was badly flawed, that is, that he was not adequately warned that the fact he had given an earlier interview to officers Lachance and Wisker ought not to influence his decision whether to speak to them again. He still had the right to remain silent. Mr. Finley submits, however, that this failure was not the result of any bad faith on the part of the police and, in any event, that whether an accused person received a proper caution goes more to weight than to admissibility: see R. v. B.L.M., 1993 NSCA 127, [1993] N.S.J. No. 189, 121 N.S.R. (2d) 311 (C.A.). I agree. In addition, it is clear from the record that Mr. Cetoute was well aware that he had the right not to speak to the police.

[97] For the foregoing reasons, then, I would not give effect to Mr. Cetoute's arguments that the trial judge erred in admitting his statements into evidence.

Attacks on the charge to the jury

[98] The appellants as a group attack the charge to the jury in a number of areas. They submit the trial judge erred in his charge relating to (a) reasonable doubt, (b) motive, (c) eyewitness identification and (d) their ability to ignore evidence that they did not accept as fact (the "Miller" error). Crown counsel concede that there were flaws in the trial judge's charge with respect to at least some of these issues. They argue, however, that when considered as a whole the charge -- while not perfect -- contained a fair and sufficient statement of the law governing the accusations to be judged by the jury and of the issues to be considered by the jury, together with an adequate review of the relevant evidence.

Reasonable doubt

[99] The appellants accept that the initial charge to the jury with respect to reasonable doubt was proper and in accordance [page518] with the dictates of the Supreme Court of Canada in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, [1997] S.C.J. No. 77. The jury asked to be recharged on reasonable doubt, however. Again, the trial judge gave the standard Lifchus charge, but at the end he added:

I do not know if that helps in clarifying this matter of reasonable doubt. C'est jamais simple puis, comme je vous dis, ce n'est pas une formule magique, mais ce que la Cour dit normalement c'est qu'il ne faut pas aller aux extremes. En autres mots"probablement" ce n'est pas satisfaisant, mais, d'un autre coté une certitude absolue n'est pas requise de la part de la Couronne. Il ne faut pas établir des normes qui sont trop élevées. Alors, c'est ça au niveau du doute raisonnable.

(Emphasis added)

[100] The appellants submit that by using the phrase italicized above -- which translates, roughly, as "One must not establish standards (of proof) that are too high" -- the trial judge left the jury with the impression that the Crown was not to be held to too high a burden of proof, rather than ensuring that they understood that proof beyond a reasonable doubt is much closer to absolute certainty than to proof on a balance of probabilities. They add that the statement came at the end of the re-charge, just prior to the end of the jury's deliberations, and therefore may have had an increased significance for the jurors.

[101] I do not accept these arguments. A review of the charge as a whole, including the re-charge, makes it clear that the jury would well-understand the proper criminal standard of proof, namely that "the standard of proof beyond a reasonable doubt requires a degree of proof far greater than that required for everyday decision-making and one that is closer to absolute certainty than to a balance of probabilities": R. v. Carrière (2004), 2004 34707 (ON CA), 72 O.R. (3d) 767, [2004] O.J. No. 4363 (C.A.), at para. 41. While it would have been preferable had the trial judge followed the French version of the Supreme Court's guidelines in Lifchus and referred to "une norme aussi déraisonnablement élévée" rather than "des normes qui sont trop élévées", I do not see a great deal of difference in substance between "unreasonably high" and "too high". The jury was told on several occasions that proof to a standard of "probability" was not sufficient, and they were also told that if they were "sure" that the accused committed the offence they could convict because that would mean they were satisfied of their guilt beyond a reasonable doubt. Finally, the trial judge instructed the jury that any directions they might receive following the main charge were no more important than the ones in the main charge and should not be given any special emphasis by them.

[102] The charge on reasonable doubt was sufficient. [page519]

Motive

[103] The appellants submit that the trial judge erred in his instructions to the jury concerning motive. They say he overemphasized the significance of motive in determining whether or not they were guilty of the offence. In particular, they point to the following passage from the charge:

La fait pour une personne d'avoir un mobile de commettre une infraction particulière tend à prouver hors de tout doute raisonnable que cette personne a, en effet, commis l'infraction.

(Emphasis added)

[104] The appellants translate this instruction, roughly, in this fashion: "The fact that someone has a motive to commit a certain crime tends to prove beyond a reasonable doubt that the person has, in effect, committed the crime." They argue that the direction is clearly wrong because, while motive is one factor for the jury to consider in assessing the case against the accused"it is grossly misleading and gravely prejudicial to the accused to suggest to the jury that proof of motive 'tends' to prove guilt" [^7].

[105] I am satisfied, however, that when the portions of the trial judge's instructions concerning motive are read as a whole, they make it clear to the jury that the Crown need not prove motive -- as opposed to intention -- as an element of the offence, but that motive, or the absence of motive, are simply factors amongst others for them to consider. In the portion of his charge that appears less than one page after the impugned "tend à prouver" comment, the trial judge said:

Il vous appartient de décider la valeur probante de la preuve du mobile ou son absence. Rappelez-vous que la preuve de mobile ne suffit pas à prouver la culpabilité hors de tout doute raisonnable. La présence de mobile n'est qu'un des facteurs à examiner qui puisse vous persuader dans un sens ou dans l'autre aux fins de déterminer si les accusés sont coupables, oui ou non.

[106] There was no objection to this portion of the charge by any of the three appellants. The charge with respect to motive, read as a whole, was adequate in the circumstances.

The charge regarding eyewitness identification

[107] The appellants also attack the trial judge's charge respecting eyewitness identification, submitting that it failed to make sufficiently clear to the jury the dangers of relying on such identification and that it failed to point out the particular frailties of the evidence with respect to the individual appellants. [page520]

[108] This court has recently commented on the requisites of a jury charge concerning eyewitness identification, in R. v. Baltovich (2004), 2004 45031 (ON CA), 73 O.R. (3d) 481, [2004] O.J. No. 4880 (C.A.). It is incumbent upon a trial judge to give the jury a general warning as to the dangers associated with such evidence, and in addition -- where the circumstances call for it -- to caution the jury as to the specific frailties of the evidence in the case at hand, thus relating the need to be aware of the general dangers to the facts of the case (paras. 77-83).

[109] Here, the trial judge gave the jury the standard general instructions concerning the frailties of eyewitness testimony. In addition, he specifically directed the jury that they "may find there were weaknesses in the evidence of the Crown as it relates to the issue of identity" (the central issue in the case). He pointed out that during cross- examination "discrepancies were highlighted about not only the identification of witnesses but often about the process used to identify certain witnesses". In this connection he reminded the jury about the evidence concerning "possible suggestions made by police officers, possible assistance from other witnesses, the possibility that there might have been collaboration between witnesses, family members, and so on". He dealt specifically with the complaints of the accused about the impugned photo line-up procedures used by the police in relation to Apaid's and Aschley's identification of the appellants Sarrazin and Jean, and with the late identification of Mr. Cetoute. At the conclusion of his charge respecting eyewitness identification, the trial judge said:

However, in a criminal case we cannot afford to be casual about identification of one person by another person. I urge you to consider carefully what I have said to you about the evidence of eyewitnesses because you cannot return a verdict of guilty based on eyewitness evidence alone unless you are satisfied beyond a reasonable doubt that the eyewitnesses correctly identified the accused as the persons who committed the offence.

[110] At one point in his instructions, when he was dealing with the accuseds' argument that Apaid Noel had been led to the identification of Mr. Sarrazin and Mr. Jean during his examination of the photo line-ups, the trial judge remarked:

Now, not to say that there was anything improper about the police officers' conduct in the sense -- you recall the difficulties they were under when they were in fact going through that process, but, nevertheless, this is something for you to consider, how much weight you give to that sort of identification.

(Emphasis added)

[111] The appellants argue that the trial judge misleadingly conveyed to the jury that the police conduct was "proper", in making this comment, thus excusing the police conduct and undermining [page521] the defence position regarding the overall unreliability of the identification of Mr. Sarrazin and Mr. Jean. I do not accept this argument. There was no objection on this basis at trial. The judge's remarks would not have been taken for anything more than they were, namely a casual aside. In any event -- whatever tendency to undermine the defence position they may have had -- any problem the comment may have created was cured by the trial judge's general caution on eyewitness identification coupled with his specific review of the weaknesses in the evidence in the context of the positions taken by the defence.

[112] The appellants raised certain other particular complaints about the charge on eyewitness identification. They argued that the trial judge failed to warn the jury about the potential for misidentification of the accused (i.e., the fact that Mr. Sarrazin and Mr. Jean were admittedly present at the club on the night in question could have led to their being mistaken as the perpetrators of the crime), that the trial judge "softened" his warning on the dangers of eyewitness testimony by downplaying defence counsel's reference to wrongful conviction cases such as Morin and Marshall, and that he failed to caution the jury as to the lack of probative value of the in-dock identification of the appellants.

[113] I would not give effect to these latter arguments, either. The potential for misidentification would have been clear to the jury and, in addition -- as Crown counsel pointed out -- if the trial judge had chosen to deal with this subject specifically he would have been required, in the interests of a fair and balanced charge, to remind the jury that Apaid and Aschley had both independently identified Mr. Sarrazin and Mr. Jean, something not necessarily in the appellant's favour. The trial judge did not downplay the seriousness or danger of wrongful convictions based on eyewitness testimony; he simply, and properly, cautioned the jury that they must decide the case that was before them. Finally, I do not see this as a situation where a warning about in-dock identification was required, as the appellants had previously been identified and this was not a classic case of in-dock identification where the person was being identified in court for the first time as the perpetrator of the crime.

[114] Mr. Cetoute mounted his own attack on the photo line-up procedures, and emphasized the discrepancies in the evidence concerning the alleged scar over his right eye (Apaid said he had one, but none was visible), the delay between the shooting and his identification by Aschley from the later photo line-up, and the motive and opportunity that Aschley had to inform himself about Mr. Cetoute. As I have indicated, I am satisfied that the trial judge adequately addressed the photo line-up procedures in his [page522] charge. He also dealt adequately, in my opinion, with the other issues raised separately by Mr. Cetoute.

[115] In the end, then, I am satisfied that the trial judge's charge with respect to eyewitness identification was proper, and adequately directed the jury's attention to the relevant legal principles and the specific facts of this case that needed to be considered by the members of the jury in reaching their verdicts.

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

The "Miller" error and the misdirection concerning the absence of evidence

[117] In his instructions to the jury regarding their fact finding role and its place in arriving at a verdict the trial judge said (amongst other things):

The facts consist in what you choose to believe in the evidence. What you do not choose to accept must not be taken into consideration for the purposes of your decision or your verdict. From the facts which you do accept, you can draw conclusions and inferences relating to other facts, and you can base yourself on such inferences to determine whether or not the accused is guilty. It is your memory of the facts which is important.

(Emphasis added)

[118] The Crown concedes that, taken in isolation, this passage constitutes what counsel have referred to as a "Miller" error. In R. v. Miller (1991), 1991 2704 (ON CA), 5 O.R. (3d) 678, [1991] O.J. No. 2010, 68 C.C.C. (3d) 517 (C.A.), at p. 700 O.R., p. 541 C.C.C., this court stated that a trial judge misdirects a jury when he or she instructs them "to proceed by separate stages, which [has] the effect of eliminating from their consideration evidence which was neither accepted nor rejected, upon which they entertained a reasonable doubt, and to consider only the residual evidence arriving at their verdict". Miller was a pre- Lifchus case, but in Lifchus Cory J. specifically included in the suggested language for a charge on the concept of reasonable doubt that such a doubt is "logically derived from the evidence or lack of evidence" (para. 39).

[119] Mr. Finley submits, however, that such an error can be cured and that the trial judge did so in other passages of his charge where he made it clear to the jury that if they were unable to resolve any issues of credibility, any reasonable doubt must inure to the benefit of the accused. In addition, the jury received two Lifchus instructions and several reminders about the overall onus on the Crown and the fact that they were to consider the whole of the evidence before arriving at their verdict. Finally, he reminds us that, again, none of the appellants raised a "Miller" objection to the charge at trial. [page523]

[120] Counsel for the appellants submit, on the other hand, that the absence of evidence can be significant and that a jury is entitled to take into account this absence, which can raise a reasonable doubt. The effect of the trial judge's instruction was to tell the jury that they must not consider the absence of evidence when considering their verdicts. Here, identity of the perpetrators was the key issue, but there was no forensic evidence linking the appellants to the crime, and none of the independent witnesses provided identification evidence that supported the guilt of the accused. They therefore argue that the absence-of-evidence notion could have played a significant role at this trial.

[121] I find this admitted error on the part of the trial judge troubling, particularly when coupled with a later statement in the charge regarding the Crown's obligation to call witnesses. After giving the standard instructions to the effect that the Crown is not obliged to call every witness who may be able to say something about the questions in issue, or to present all documents or pieces of evidence that have been mentioned in the testimony of witnesses, he said: "The Crown's case is closed. You would have perhaps preferred more complete evidence on certain points, but it's up to you to base your verdict on the evidence that has been presented." On the whole, the jury was arguably left with the impression that they were not entitled to consider the absence of evidence as a factor that might give rise to a reasonable doubt.

[122] This was a significant error (see Lifchus, para. 46), and one that cannot be cured by the proviso. Together with the error in admitting the statements of the deceased, Apaid Noel, on a substantive basis, it requires the direction of a new trial.

D. Disposition

[123] For the foregoing reasons, therefore, I would allow the appeal and direct a new trial.

[124] Given that disposition, it is unnecessary to deal with the sentence appeals presented by the appellants Sarrazin and Jean.

Appeal allowed.

Notes

[^1]: "The court" may consist of a justice of the peace, a provincial court judge, [or] a judge of the Nunavut Court of Justice before whom the accused is to be tried, depending on the circumstances. I have used the term "the court" for purposes of brevity.

[^2]: I use the term "trier or triers" to replace "justice of the peace, or provincial court judge, judge or judge and jury".

[^3]: See the decision of this court, in R. v. Beaulieu, [1995] O.J. No. 3093 (C.A.), as well as that of the Nova Scotia Court of Appeal in R. v. Schneider, 2004 NSCA 99, [2004] N.S.J. No. 314, 188 C.C.C. (3d) 137 (C.A.). See also, R. v. Edwards, supra, and R. v. Mills, 1993 4558 (NS SC), [1993] N.S.J. No. 316, 124 N.S.R. (2d) 317 (S.C.) (where Boudreau J. held that s. 530.1 did not apply to bilingual proceedings, but that s. 530.1-like protections were nonetheless available on fair trial principles).

[^4]: Lamer C.J.C. and Binnie J. dissented, not in the result, but on the grounds that it was not necessary - given the statutory nature of the provisions in question - to rework the court's interpretive approach to constitutional language rights.

[^5]: See MacDonald v. Montreal (City), 1986 65 (SCC), [1986] 1 S.C.R. 460, [1986] S.C.J. No. 28; Société des Acadiens du Nouveau-Brunswick Inc. v. Assn. of Parents for Fairness in Education, Grand Falls District 50 Branch, 1986 66 (SCC), [1986] 1 S.C.R. 549, [1986] S.C.J. No. 26; and Bilodeau v. Manitoba (Attorney General), 1986 64 (SCC), [1986] 1 S.C.R. 449, [1986] S.C.J. No. 27.

[^6]: As Deschênes J. noted in Gavin, at para. 26"If there is a decisive moment in the course of a trial, where the message must be given without an intermediary between the solicitor and the ultimate judge of the facts and of guilt or innocence of the individual, it has to be at this stage of the trial."

[^7]: Sarrazin factum, para. 61.