CITATION: R. v. Mariani, 2007 ONCA 329
DATE: 20070503
DOCKET: C41581
COURT OF APPEAL FOR ONTARIO
BLAIR, LANG and MACFARLAND JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Richard Litkowski and Catherine Glaister, for the appellant
Respondent
- and -
MEIR MARIANI
Susan Ficek and Andrew Cappell, for the respondent
Appellant
Heard: March 6, 2007
On appeal from a conviction for manslaughter by Justice David McCombs of the Superior Court of Justice, sitting with a jury, dated July 23, 2003.
R.A. BLAIR J.A.:
BACKGROUND AND ISSUES
[1] During the evening of November 14, 1999, Matti Baranovski was tragically beaten to death by a group of hostile teenagers while he and some friends were innocently passing the time sitting on a park bench in North York. He was a fifteen-year-old high school student at the time.
[2] Matti and his friends were in the wrong place at the wrong time. The hostile aggressors – part of a group known as “the Antibes group” (named after a local address) – had arrived at the park looking to confront a rival group of teenagers, known as “the Russians”, who had apparently offended the Antibes group by threatening one of their members two days before during a drug altercation. When it turned out that “the Russians” were not in the park, most of the Antibes group left, but a small number decided that since they were there, and did not want to go home empty-handed, they might as well rob the Baranovski group that was lounging around the bench in the park.
[3] The appellant, Meir Mariani, and his co-accused, Lee Cochrane and Daniel Weiz, were amongst the members of the Antibes group who approached Matti and his friends. There is evidence that the appellant was seen talking to another boy, Mike Vesta – who is reported to have suggested the robbery – and that it was the appellant who said that he did not want to go home “empty-handed”.
[4] The substance of what happened that evening is not in dispute. Someone in the Antibes group demanded cigarettes and money (and drugs, if they had them) from Matti and his friends. One friend handed over a wallet. Matti resisted. As a result he was pushed to the ground by someone and kicked by that someone and/or others. One kick had the sad and unusual consequence of rotating and lifting Matti’s head simultaneously, causing his vertebral artery to rupture and rendering him unconscious within seconds. There was no possibility of saving him. But for that kick, his injuries were not life-threatening. He died, nonetheless.
[5] The primary issue at trial was the identity of the perpetrators. Who was the teenager who demanded the cigarettes and money (known as the “cigarette demander”)? Who was the pusher or tripper? Who were the kickers?
[6] Meir Mariani, Lee Cochrane, and Daniel Weiz were charged with second degree murder. The evidence against them came primarily from two sources – the group of teenage friends who were in the park with Matti (and who were universally considered to be honest and credible, but who were unable to be clear about precisely what occurred that evening; none of them could identify the attackers), and a group of disreputable witnesses who were part of the hostile Antibes group of teenagers (and who had a clear motive to fabricate their stories in order to protect themselves and/or their friends from responsibility). It was the theory of the Crown that the appellant was the cigarette demander and the pusher, and that all three co-accused were amongst the kickers, but that even if they were not amongst the kickers they were guilty as parties to manslaughter.
[7] After a six-month trial before McCombs J. and a jury, Mr. Mariani and Mr. Cochrane were acquitted of murder, but convicted of manslaughter. Mr. Weiz was acquitted altogether.
[8] Mr. Mariani appeals his conviction for manslaughter. He challenges the adequacy of the trial judge’s charge to the jury on a number of grounds relating to the identity and intent of the perpetrators, and argues as well that the trial judge erred in permitting a Crown witness to be cross-examined on his prior inconsistent statements pursuant to s. 9 (2) of the Canada Evidence Act, R.S.C. 1985, c. C-5. Specifically, the appellant submits that the trial judge erred:
a) in the manner in which he instructed the jury on the issue of eyewitness identification by Matti’s friends;
b) in failing to give a Vetrovec warning in relation to one of the witnesses connected to the Antibes group (but not present on the night in question), Natalie Kotin;
c) in permitting the Crown to cross-examine another witness from the Antibes group (who was present on the night in question) pursuant to s. 9 (2) of the Canada Evidence Act;
d) in the manner in which he instructed the jury on party liability to manslaughter for the appellant;
e) in the manner in which he instructed the jury on what was known as “the plan to blame Daniel Weiz”; and
f) in failing to give a specific warning in his charge about the evidence relating to what was known as “the plan to fight the Russians”.
[9] For the reasons that follow, I would not give effect to any of these grounds of attack. Accordingly, the appeal must be dismissed.
ANALYSIS
The Instruction on Eyewitness Identification
[10] The trial judge gave the standard instruction on the acknowledged frailties of eyewitness identification in relation to the evidence of Matti’s friends. The appellant does not argue he should not have done so. While Ms. Glaister quibbled with some of the language used by the trial judge, the main thrust of her disagreement on this point was about what the trial judge did not say. She submitted that he erred by warning the jury only about the dangers of identification evidence from honest, but mistaken, witnesses without also instructing the jury on how that same evidence might point away from the appellant in a positive way, thereby raising a reasonable doubt about his identity.
[11] The evidentiary basis for this argument evolves primarily around the various descriptions that Matti’s friends gave of the cigarette demander and the pusher. Yavi Lipschitz – a particularly disreputable witness from amongst the Antibes group – testified that he saw the appellant push Matti to the ground. However, two of Matti’s friends described the cigarette demander and the pusher as wearing a black leather jacket and having gelled hair. The appellant was not wearing a black leather jacket that night and did not have his hair gelled back. Mike Nesta – the person said to have originally suggested that they should rob the Barnovski group since “the Russians” were not in the park – was wearing a black leather jacket and had gelled-back hair. Thus, it was the defence theory that Mike Nesta, not the appellant, was the pusher.
[12] The trial judge declined to give the additional instruction requested by defence counsel in that portion of his charge dealing specifically with the frailties of eyewitness testimony. He rejected the submission that his charge in this regard amounted to an invitation to ignore the eyewitness evidence where it supported the defence. He did not err in doing so, in the circumstances of this case, in my opinion, because in other portions of his charge he clearly highlighted the defence position (based upon the black leather jacket and gelled-hair evidence) that it was Mike Nesta, not the appellant, who was the pusher.
[13] The trial judge was alert to the point made by this Court in R. v. Wristen (1999), 1999 3824 (ON CA), 141 C.C.C. (3d) 1 (Ont. C.A.), that different considerations may apply to eyewitness identification evidence supporting the Crown’s case and eyewitness identification tending to exculpate the accused. This is because, as Justices Laskin and Rosenberg noted in that case, at p. 23:
The need for special care concerning eyewitness identification evidence arises because of the danger of a wrongful conviction. That danger does not exist where the eyewitness evidence tends to exculpate the accused.
[14] Here, however, the Crown was relying on the eyewitness testimony of Matti’s friends as pointing towards the appellant’s guilt, even though the Crown conceded that none of them could identify him directly as a perpetrator. It was therefore necessary for the trial judge to charge the jury with respect to the frailties of eyewitness identification evidence in relation to the Crown’s case. As noted, Ms. Glaister does not strenuously argue to the contrary. The trial judge was very careful, in this portion of his charge, to particularize it to the Crown’s case. For instance, he told the jury: “You must be very cautious about relying on eyewitness testimony to find any of the accused persons guilty,” and “There is a special need for caution in dealing with these observations of characteristics that may be consistent with the accused persons” (my emphasis).
[15] In response to counsel’s objection, the trial judge stated:
The purpose of my caution in this case was to underscore for the jury that although the witnesses could not specifically identify the accused persons, their description of the events and the size of the various assailants may also be suspect. I did so to benefit the defence, not to bolster the Crown’s case. Having reviewed my comments on this subject in light of Mr. Schreck’s submissions, I conclude that it is clear that the instructions would bring home to the jury that care should be taken lest they give the evidence greater weight than is appropriate in support of the Crown’s case. I therefore decline to recharge the jury on this point.
[16] As this Court has previously stated, it is not an error in law for a trial judge to instruct a jury to approach certain kinds of evidence favouring the defence with care – including inherently frail eyewitness testimony – and to instruct the jury on the reasons why caution is needed, provided the judge does not go further and give, in effect, what constitutes a Vetrovec warning that it is dangerous to act on that evidence alone: R. v. Wristen, supra, at 22-23. See also R. v. Jeffrey (1989), 35 O.A.C. 321 (C.A.) at 326-327. At pp. 22-23 in Wristen, Justices Laskin and Rosenberg said:
Rather, the instruction must be considered in the context of the charge. If the appellate court is satisfied that when the charge is considered as a whole, an especially cautious instruction did not unfairly undermine the defence position, the appeal may be dismissed. [Emphasis added].
[17] In my view, that is the case here. It was not necessary for the trial judge to add the instruction requested by the defence to the eyewitness identification portion of his charge, because it was clear to the jury from the balance of the charge, read as a whole, that the evidence concerning the black leather jacket and the gelled hair pointed away from the appellant and may have created a reasonable doubt about his identity as the cigarette demander and pusher. As the trial judge told the jury:
Mr. Fishbayn submits to you that on the evidence you should conclude that Mike Nesta is the person who witnesses identify as wearing a black leather jacket with his hair gelled back. This is consistent with Mr. Baranovski’s friends’ descriptions of the person who pushed Mr. Baranovski and ultimately kicked him. Mr. Fishbayn submits that Mike Nesta, not Mr. Mariani, is the person who pushed Mr. Baranovski to the ground.
[18] Given that clear instruction, together with the trial judge’s correct W.(D.) charge[^1] – to which no objection was taken – I am satisfied that the charge did not undermine the defence position in this regard.
[19] Ms. Glaister goes further, however. She submits that the trial judge was required to give an instruction in accordance with Chartier v. Quebec (A.G.) (1979), 1979 17 (SCC), 48 C.C.C. (2d) 34 (S.C.C.), to the effect that the descriptions of the assailants given by Matti’s friends exculpated the appellant. I do not accept this submission.
[20] It is true that some of Matti Baranovski’s friends gave a description of the cigarette demander – in terms of what he was wearing and his style of hair – that did not describe the appellant. However, none of them purported to identify the appellant as the cigarette demander. Moreover, there was other evidence supporting the appellant’s identity as the pusher – the evidence of Yavi Lipschitz that he saw the appellant push Matti, and the testimony of Kevin Clift that the appellant admitted “tripping the kid”, for example. This was not an identification case, then, that rested solely on the observations of eyewitnesses who purported to identify the accused but whose descriptions were clearly dissimilar to that of the accused in a situation where there was no other supporting evidence. As Rosenberg J.A. noted in R. v. Boucher (2000), 2000 3270 (ON CA), 146 C.C.C. (3d) 52 at 58 (Ont. C.A.), “in the absence of some other inculpatory evidence, a resemblance is no evidence.” [Emphasis added.] And as Weiler and Gillese JJ.A. observed, in R. v. Dimitrov (2003), 2003 50104 (ON CA), 181 C.C.C. (3d) 554 at 565 (Ont. C.A.), “[t]he rule in Chartier applies to cases in which there is a clear dissimilarity in the witness’s identification coupled with a lack of supporting evidence.”
[21] On that basis, the requirement for a Chartier instruction was simply not triggered in the circumstances of this case.
[22] I am not persuaded that the appeal should be allowed on this ground.
No Vetrovec Instruction with Respect to Natalie Kotin
[23] The appellant submitted further that the trial judge erred in failing to warn the jury about the danger of accepting the testimony of the witness, Natalie Kotin, without some corroborating evidence, in accordance with the principle laid down by the Supreme Court of Canada in R v. Vetrovec (1982), 1982 20 (SCC), 67 C.C.C. (2d) 1. I do not agree.
[24] The decision whether to provide a Vetrovec warning with respect to a particular witness and, if so, in what form, is a matter within the discretion of the trial judge. No category of witness is subject to such a warning as a matter of course. The judge’s decision in this regard is entitled to considerable deference on appellate review.
[25] Here, the trial judge gave a Vetrovec warning in relation to many of the Crown’s witnesses from the Antibes group, who were young people of a thoroughly disreputable, untrustworthy and unsavoury character. No quarrel is taken by the appellant with any of these warnings. In spite of defence requests both pre-charge and post-charge, however, Natalie Kotin was not the subject of such a warning.
[26] On behalf of the appellant, Mr. Litkowski submits that Ms. Kotin bore all of the indicia of a witness requiring a Vetrovec warning. In support of this position, he emphasizes a number of features of Ms. Kotin’s testimony. First, her evidence was important to the Crown as it incriminated the appellant in at least two respects (her testimony that the appellant had confessed to her about participating in the assault, and her testimony about his involvement in the plan to blame Dan Weiz). Secondly, he highlights the following as classic indicia of a disreputable witness:
• She was very close friends with another disreputable Crown witness, Yavi Lipshitz – who is the only witness to identify the appellant as one of the kickers – and may have colluded with him in creating her story;
• She admitted that she was prepared to lie for Mr. Lipshitz (although she adamantly maintained that she would not do so if under oath or if others would be hurt by the lie);
• Her close connection with Mr. Lipshitz gave her an association with the crime, thus enabling her to plant information into the mouths of the appellant and his co-accused, Lee Cochrane;
• She lied to the police and admitted that some of her testimony at the preliminary hearing had not been true;
• There were significant inconsistencies between her statements to the police and her testimony in the legal proceedings; and
• She was an admitted drug user and dealer at the time of the events in question (although at trial she stated that she had been clean for some considerable time).
[27] Ms. Kotin did not have a criminal record. She was not present in the park when the event took place. While she initially lied to the police when she first spoke to them and told them she knew nothing, she was unfortunately no different than many scared teenagers in similar circumstances, and she cooperated thereafter. She had no motive to implicate others falsely in order to protect herself. It is true that she is a very close friend of Yavi Lipshitz, but the trial judge warned the jury on several occasions of that fact and of the resulting risk of collusion between her and Mr. Lipshitz.
[28] After careful consideration, the trial judge concluded, in the exercise of his discretion, that Ms. Kotin was not the type of disreputable unsavoury witness who should attract a Vetrovec caution. He heard the witnesses at trial and he declined to characterize her testimony at the preliminary inquiry as dishonest – notwithstanding certain inconsistencies with her testimony at trial. This was the trial judge’s call to make, and he was entitled, in the circumstances, to view the attacks on Ms. Kotin’s evidence as credibility challenges that did not rise to the level of an unsavoury Vetrovec witness. In my opinion, there is no basis for interfering with his judgment that she did not fall into the category of witness calling for such a warning.
The Section 9(2) Application with respect to Walter Clift
[29] Next, the appellant contends that the trial judge erred in permitting the Crown to cross-examine Walter Clift on his prior statement, pursuant to subsection 9(2) of the Canada Evidence Act. Again, I do not agree.
[30] Walter Clift is the older brother of Kevin Clift. Both testified, and both were part of the Antibes group present in the park at the time of the events in question. Walter Clift changed his story almost every time he spoke to anyone. As the trial judge wryly noted during submissions on the s. 9(2) motion, he doubted that Mr. Clift, let alone anyone else, knew what Mr. Clift was going to say from one minute to the next.
[31] When first questioned by the police, on November 24, 1999, Walter Clift denied he was at the park the night Matti Baranovski was killed. He said he was with his apartment superintendent, and he attempted to persuade the superintendent to support his false alibi. Later, on December 14, 1999, after he discovered the apartment superintendent had refused to confirm the false alibi, Mr. Clift admitted he was in the park. He attended with the police at the police station where he was interviewed – “aggressively”, the appellant says – and gave a lengthy 219-page statement under oath and on videotape. During the first 130 pages of that statement, he claimed he had not seen what happened to Matti. Then, after being confronted with information that other witnesses had seen him watching the beating, he told the police in the rest of the statement that the appellant had confessed he robbed Matti, that he had seen the appellant rob and trip Matti, and that he had seen the appellant and his co-accused kick Matti. He performed a physical demonstration on the videotape of the appellant tripping Matti.
[32] At the preliminary hearing, Walter Clift did not testify in accordance with that statement. Instead, he maintained that, although he saw some people approaching the bench where Matti and his friends were sitting, he could not recall who they were, and although he saw five or six people kicking Matti, he could not say who they were either. In short, he refused to adopt the salient parts of his prior statement. His explanation for this at the preliminary hearing was that he could not remember much of what he said to the police because he had been under the influence of drugs at the time, and because of the pressure from the police, he told them he had seen what happened whereas he was only relating what he had heard from others had happened.
[33] At trial, when it became clear that Walter Clift was not going to testify in accordance with his December 14 statement, the Crown applied to have the videotaped statement admitted for the truth of its contents and to be permitted to conduct a s. 9(2) cross-examination of Mr. Clift with respect to his prior inconsistent statements. The trial judge refused the former request but granted the latter.
[34] On this issue the defence argued that it would be contrary to the interests of the administration of justice to permit the cross-examination. In their submission, there was “absolutely no chance” that Mr. Clift would adopt any portions of the statement if cross-examined at trial. Moreover, the prejudicial effect of permitting the Crown, in effect, to portray the entire scenario of what it said happened – including the appellant’s purported confession to Clift and his re-enactment of the tripping scenario – by asking the witness to adopt his statement on a question by question basis, far outweighed the benefit of any remote chance that he might actually adopt significant portions of the statement.
[35] The appellant relied upon the decision of this Court in R. v. Soobrian (1994), 1994 8739 (ON CA), 96 C.C.C. (3d) 208, and that of the British Columbia Court of Appeal in R. v. Fraser (1990), 1990 983 (BC CA), 55 C.C.C. (3d) 551, in support of this submission.
[36] In Soobrian, the Crown called a witness knowing that the witness would likely testify as he had at the preliminary hearing (in a fashion that favoured the defence) but contrary to an initial statement that he had given to the police (which was helpful to the Crown). The case involved an alleged multi-party sexual assault. The witness at first told the police he had not seen any consensual sexual activity. Later he told the police, and testified, that he had seen a variety of consensual sexual activities involving the complainant, her former boyfriend, and the co-accused, Beaudry, but that Soobrian did not have sex with the complainant.
[37] The Crown called the witness planning to impeach his credibility through the use of the prior statement and then, through general cross-examination, to show that the witness had lied in collaboration with his friends, the co-accused, thereby undermining their testimony – should they choose to testify – as well. The trial judge permitted the cross-examination under s. 9(2). On appeal, this Court held that the trial judge had little choice but to allow the cross-examination, given the Crown’s strategy in leading the evidence and the likelihood of leaving the jury with a false impression of the witness’s credibility without it, but that the trial judge erred in not providing a stronger charge on the use that the jury could make of such evidence. The trial judge should have instructed the jury that, in the absence of evidence of collusion between the witness and the accused, there was no basis on which they could use the witness’ evidence or the fact that he was a liar to support an inference that the accused were liars too.
[38] Fraser was somewhat different. However, the procedure followed by the Crown in that case was in some ways analogous to the procedure followed here. And therein lies Ms. Glaister’s complaint. In Fraser the accused was convicted of several offences arising out of a shooting incident at the home of her estranged husband. The Crown called a witness – the accused’s companion, who the Crown theorized was the actual shooter – knowing that he would claim to have no recollection of the events. In fact, however, the witness had previously given a statement to the police which incriminated the accused in relation to the offences with which she was charged. The procedure followed by Crown counsel was to have the witness read the entire prior statement, small portions at a time, and then ask the witness whether he recalled the statement and whether it was true. The witness consistently took the position that he could not recall the statement.
[39] Through this tactic, the Crown effectively got a version of the events before the jury that the British Columbia Court of Appeal held the jury would not likely be able to erase from its mind, in spite of the trial judge’s charge that the statement had not been adopted by the witness and could therefore only be used to assess the witness’ credibility. The Court acknowledged that there was good reason to permit the cross-examination, because “[u]ntil it is completed, one cannot know whether the witness who has made an inconsistent statement will yield and admit the truth of the statement” (supra, at 557-558). However, the Court held that, in the circumstances, the prejudice of the procedure that had been followed far outweighed the probative value of the evidence obtained – which, in the result, was nothing – and therefore that the evidence must be excluded. Two excerpts from the decision of Seaton J.A., at 558 and 559, summarize the Court’s view:
By this method of cross-examination all that was gained, and one gets the feeling all that was sought, was to have Mr. Barnes read the statement to the jury. The effect was to minimize the probative value of the examination and maximize the prejudice. The result was devastating to the defence.
I conclude that even the sophisticated modern jury could not put aside this detailed and direct eye-witness account when it considered the scattered bits of circumstantial evidence. The statement of [the witness] ties the evidence together so completely that the guilty verdict is inescapable.
[40] Here, the appellant submits the effect of permitting the Crown to cross-examine Mr. Clift on his December 14 statement was the same – particularly given the portion of the videotaped statement in which he demonstrated what he said was the appellant’s action in tripping Matti Baranovski. The Crown initially adopted a tactic similar to that in Fraser, although it did not ask Mr. Clift to read the portions of the statement himself, as had been the case in Fraser. The Crown read out extracts from the December 14 statement, then asked Mr. Clift if he recalled being asked the questions and giving the answers, and if they were true. Walter Clift consistently repeated that he did not know if his answers to the police were true because he had just been repeating what others had told him. The Crown would then read out a further series of extracts from the statement, and the same exercise would be repeated. At one point the defence objected, submitting that it was clear the witness was not going to adopt his prior statement and that the questioning was prejudicial and of no evidentiary value. The trial judge immediately directed the Crown to adopt a more concise procedure of asking “rolled-up” questions instead of asking several questions on the same issue and to stick to questions on material inconsistencies which were unlikely to involve hearsay. Appellant’s counsel submits this was not enough.
[41] The experienced trial judge in this case decided to permit the s. 9(2) cross-examination. He concluded that the principles of Soobrian did not apply because the Crown had not called Walter Clift solely for the purpose of discrediting him. Moreover, in keeping with the observation in Fraser, he adopted the view that it could not be said at that stage in the proceedings that the cross-examination would be useless. He attempted to control the situation by ruling that the Crown could cross-examine on prior inconsistent statements on material issues given in the December 14 statement and at the preliminary inquiry, and by stating that he would resolve disputes over the evidence being led on an issue-by-issue basis. As indicated above, that is exactly what he did.
[42] What’s more, the trial judge here gave a very strong and clear mid-trial instruction to the jury on the use they could make of Walter Clift’s testimony, immediately after that testimony – something that was missing in both Soobrian and Fraser. He told the jury that prior inconsistent statements are not evidence unless they are adopted at trial by the witness; that they had to be careful to remember that “agreeing that he said these things on earlier occasions is not the same as agreeing that those statements were the truth”; and that Mr. Clift did not adopt many of the statements.
[43] In addition, and importantly, the trial judge provided specific examples of statements that Mr. Clift had acknowledged making but did not adopt, and told the jury that as a matter of law there was no evidence on these points from Mr. Clift. These examples covered the potentially most damaging aspects of the statement that were read in. In this respect he told the jury:
I am going to provide you with some specific examples from Walter Clift’s evidence given thus far where he did not adopt statements that he acknowledged having made on prior occasions. He did not agree that he saw Meir Mariani, Lee Cochrane or Daniel Weiz kick anyone. This means that in law there is no evidence from this witness that he saw any of the three accused persons kick Mr. Baranovski.
He also did not agree that he heard Mr. Mariani admit to kicking Mr. Baranovski. Again, this means that there is no evidence from Walter Clift that Mr. Mariani admitted kicking Mr. Baranovski.
Walter Clift also did not agree that Meir Mariani had admitted to him that he “did it”. This means that there is no evidence from Walter Clift that Mr. Mariani told him that he did it.
As well, Walter Clift did not agree that he heard Meir Mariani admit to robbing or tripping Mr. Baranovski. Again, this means that there is no evidence from this witness that Meir Mariani said to him that he either robbed or tripped Mr. Baranovski.
Also, Walter Clift did not agree that he saw five or six people kick Mr. Baranovski. As well, he did not agree that he saw three to four kicks. As a result, there is no evidence from this witness as to the number of people who were kicking or the number of kicks that were administered.
Once again, you must bear in mind that what the witness said on a prior occasion is not evidence in this case unless he has adopted it as true in his evidence before you.
On the basis of the answers given by Walter Clift, there is no evidence from him that he saw any one of the three accused persons kick, nor that he heard Meir Mariani make any statement that he either kicked him or that he did it or that he robbed or tripped Mr. Baranovski. Further, there is no evidence from him as to the number of people kicking or the number of kicks administered. [Underlining added.]
[44] In his charge to the jury, the trial judge once again instructed the jury that prior statements only become evidence if the witness accepts them as being true, and that they could not use the earlier statements – including that of Walter Clift – as evidence of what actually happened unless they were satisfied that the witness accepted it as true while in the witness box. The trial judge omitted to repeat his specific mid-trial instruction with respect to Walter Clift in his charge to the jury – as he had said he would do – but he returned to it in the re-charge. He repeated the instruction about not using the statement for the truth of its contents unless it had been adopted by the witness, and then specifically went on to indicate that, as Walter Clift had not done so, there was no evidence from him about the matters recited in the previous paragraph.
[45] In my view, this case is distinguishable from Soobrian in the sense that the strategies of the Crown were not the same. In any event, this Court held in Soobrian that the cross-examination pursuant to s. 9(2) was permissible. The problem in that case was in the lack of a strong direction in the jury charge to balance the jury’s consideration of the credibility question regarding the impugned witness. Here, as noted above, the trial judge twice gave a very strong and clear instruction on what use the jury could make of Walter Clift’s prior statements and – of at least equal significance – on what evidence the statements could not constitute. In short, he did exactly what the Court said the trial judge in Soobrian should have done: he told the jurors there was no basis upon which they could “draw an adverse inference to the defence” (Soobrian, supra, at 219) with respect to that evidence.
[46] Fraser is distinguishable as well, for a number of reasons already referred to, namely (i) the very clear and strong mid-trial instruction given by the trial judge in this case, (ii) the restrictions the trial judge placed on the scope of the Crown cross-examination, (iii) the trial judge’s prompt interjection upon the defence’s objection, and – although perhaps less significantly – (iv) the absence in this case of the Crown tactic of having the witness read the statement himself. In addition, Mr. Clift did, in fact, adopt some of his prior statement, at least the part putting the appellant amongst the Antibes group going to the park that evening. I am satisfied that the effect of the strong mid-trial instruction and the instructions to the jury on the re-charge – unlike in Fraser – was sufficient to cure any potential prejudice to the appellant arising from the s. 9(2) cross-examination.
[47] Accordingly, I would not give effect to this ground of appeal.
Instruction on Party Liability for Manslaughter
[48] Next, the appellant submits that the trial judge erred in the manner in which he instructed the jury on party liability for manslaughter, particularly in regard to what counsel referred to as the “push” scenario.
[49] As I apprehend Mr. Litkowski’s argument in this respect, it is essentially twofold. First, he submits that the trial judge was required to – but did not – instruct the jurors that to find the appellant guilty of being a party to manslaughter they had to be satisfied the appellant knew (had subjective foresight) when he pushed Matti Baranovski to the ground that the other perpetrators would come in and start kicking Matti after the initial push or trip.[^2] Secondly, he submits the trial judge failed to link the evidence that was significant to the theory of the defence to the principles of law he had enunciated with respect to the party-to-manslaughter offence: see R. v. Jacquard (1997), 1997 374 (SCC), 113 C.C.C. (3d) 1 at 10-12, 17-20 (S.C.C.); R. v. MacKinnon (1999), 1999 1723 (ON CA), 132 C.C.C. (3d) 545 at 553-58 (Ont. C.A.).
[50] Mr. Litkowski says the trial judge got it right in his discussion with counsel during the objection to his charge, but failed to convey the correct message to the jury. During the post-charge discussion the trial judge said:
I want to be as frank with you as I can. I came to the conclusion that as a matter of law, if the tripper should have foreseen the kickers coming, objectively that wouldn’t be enough. The tripper had to subjectively foresee that the kickers were going to come in. If the tripper subjectively foresaw that and then acted by tripping with the intention of aiding and abetting […] the […] kickers, […] and also with the objective foresight that injurious bodily harm would ensue, then that would support the conviction for manslaughter.
[51] In my view, however, the trial judge did convey the message to the jury that he indicated was appropriate in his post-charge discussion with counsel, albeit not in the concise three-sentence summary that the appellant favours.
[52] He began this portion of his charge by telling the jury that a verdict of manslaughter could be reached in one of two ways: (a) if a defendant kicked Matti but did not have the requisite intention for murder, or (b) if a defendant did not kick Matti but was proven to have aided or abetted the kickers. “The other route to manslaughter applies,” he repeated, “if you are not sure if a defendant kicked but are satisfied beyond a reasonable doubt that he was a party to the kicking by aiding or abetting the kickers.”
[53] In the ensuing part of the charge on this point, the trial judge essentially instructed the jurors they must be satisfied beyond a reasonable doubt on four elements in order to convict one or more of the accused of being a party to the offence of manslaughter. He did so – properly, in my view – by dealing first with aiding and abetting (i.e., the “party” issue, which encompassed the first three elements) and then turning to the objective element of manslaughter (the fourth element).
[54] In relation to aiding and abetting, the trial judge told the jurors they must be satisfied (i) that the person alleged to have been a party was present at the scene of the assault or was close to the victim when he was being kicked, (ii) that the presence or conduct had the effect of aiding or encouraging the perpetrators to commit the offence, and (iii) that the person alleged to have been a party must have intended to aid or encourage the assault. In the context of this latter subjective mental element for aiding and abetting – intent – the trial judge told the jury (amongst other ways) that:
an accused person could aid or encourage the assault by knocking the victim to the ground while knowing that [the victim] is likely then to be assaulted [Emphasis added.]
[55] Finally – turning to the manslaughter aspect of the offence of being a party to manslaughter – the trial judge instructed the jurors that they must be satisfied on an objective standard that a reasonable person would realize the assault would lead to serious bodily harm (by which he said he meant bodily harm that was neither trifling nor transient). The trial judge repeated these instructions during his charge, and did so again in response to a post-charge question from the jury. At one point he succinctly summarized the four elements by reminding the jurors they must be satisfied beyond a reasonable doubt as to presence, effect, intent to aid or abet, and that a reasonable person would foresee the likelihood of injurious bodily harm.
[56] I see no error in this charge. The jurors could have been left in no doubt that they must be satisfied as to a subjective element of intent in relation to aiding and abetting and that one way in which that intent could be established – as the trial judge said – was by the pusher “knocking the victim to the ground while knowing that he [was] likely to then be assaulted”. In my opinion, it was not necessary for the trial judge to go further and to tell the jurors they must be satisfied the appellant knew Matti Baranovski was likely to be kicked, as Mr. Litkowski contends. All the appellant needed to know was that the victim was likely to be assaulted in some fashion. There is no need to foresee the exact nature of the assault.
[57] Mr. Litkowski places particular emphasis on the following passage from the trial judge’s charge:
So let me summarize this instruction one more time. If you conclude that your are sure that the person was a party to the assault, and if you conclude that a reasonable person seeing a group of people kicking a person repeatedly in the head while he is lying motionless on the ground would know that he was likely to receive more than minor injuries, then the Crown has proved that person guilty of manslaughter. It does not matter whether he expected the person to die or not. [Emphasis added.]
[58] He argues that this comment – given even more force by the word “summarize”, because the jury would think it represented the real essentials of the charge – removed the subjective element from the jury’s contemplation and left them with the impression that they need not consider whether the appellant had the requisite knowledge that the others would likely come in and kick Matti Baranovski if he pushed the Matti to the ground. In my opinion, however, this argument misconceives the role of this particular passage in the instructions.
[59] In charging the jury on party liability to manslaughter, the trial judge had to deal with both a subjective and an objective mental element. The subjective element relates to the “party” aspect of the charge (i.e., the aiding and abetting aspect), whereas the objective element pertains to the manslaughter aspect. The trial judge made this distinction. First, he dealt with aiding and abetting and the three elements it was necessary for the jury to address in that connection (dealing with the subjective element of intention to aid or abet the kickers as the third element). At the conclusion of that segment of his charge, he summarized that issue. He then dealt with the manslaughter aspect of party liability to manslaughter, including the objective element of foreseeability of serious bodily injury, but not necessarily death. At the conclusion of that segment of the charge, he summarized that issue. The appellant complains about this latter summary. But the impugned passage quite properly dealt with objective foreseeability because it was dealing with manslaughter, and I am satisfied the jury would not have been confused into believing that the trial judge was giving them a summary of the entire charge on party liability to manslaughter at this point.
[60] Mr. Litkowski further submits that the trial judge nonetheless failed to relate the evidence to the legal principles in question and to the defence position – particularly by failing to tie in the kicking aspects of the case to the general legal principles regarding party liability for manslaughter. Again, I do not agree.
[61] In dealing with the positions of the appellant and the Crown in his instructions, the trial judge told the jury:
It is Mr. Fishbayn’s position that even if you find Mr. Mariani was the person that pushed Mr. Baranovski to the ground, he is not guilty of manslaughter. Mr. Fishbayn says that to find that Mr. Mariani was guilty of manslaughter, you would have to be satisfied that Mr. Mariani knew that the others would move in and kick Mr. Baranovski as a result of the push and that he ought to have known that bodily harm would result.
Mr. Fishbayn relies on the following evidence to show that Mr. Mariani did not know that the kicking would result: First, there was no discussion beforehand among the people who approached the table about using violence; second, Mr. Lipschitz testified that Mr. Mariani looked surprised when the first kick happened. Mr. Lipschitz described the kicking as spontaneous.
The Crown submits that based on the same evidence, you can infer that if a person pushed or tripped Mr. Baranovski to the ground in the circumstances of this case, he would have known that others would move in to kick Mr. Baranovski and ought to have known that Mr. Baranovski would suffer injury.
[62] Moreover, the trial judge made it clear that mere presence at the scene was not enough to establish liability (this was later confirmed in response to a question from the jury), nor was the act of simply pushing or tripping Matti and knocking him to the ground. The jurors were well aware that the entire notion of party liability to manslaughter was grounded in the “kicking” scenario. It only arose in circumstances where they were not satisfied the appellant was one of the kickers but found that others were. The trial judge repeated on several occasions that the third requirement was whether or not the person alleged to be a party intended to aid or abet the kickers. The jury could accordingly have been under no misapprehension about the nature of the “assault” that was the subject matter of the charge in this case and how the kicking aspect of that assault related to the appellant’s defence and the legal principles involved.
[63] There was a reason why the trial judge crafted this portion of the charge in the way that he did, without making specific reference to the appellant. He bent over backwards throughout the trial, and in his charge, to be fair to the accused. In particular, he was concerned not to single out the appellant unfairly in the portion of his charge respecting party liability to manslaughter by placing undue emphasis on the appellant as the possible pusher and tripper. In his post-charge discussions with counsel, immediately following the passage cited above, he explained his reasons for framing the charge on this point in the fashion that he did:
When I was trying to craft the charge, it ended up I was dealing with parties in terms of the people who were near or close to Mr. Baranovski and how liability could attach in those circumstances, and I found myself with a separate paragraph dealing with the issue of tripping. And it bothered me because as I read through it, it seemed to me it wasn’t a fair balance, because I ended up sort of taking Mr. Mariani and treating him differently.
That’s why I worded this portion of my instruction the way I did. I tried not to overly focus on Mr. Mariani’s conduct. It seemed to me that the defence – it would amount to basically the jury might end up with the impression that, you know, I’m saying, look, there’s two ways to get to manslaughter, one is if he kicked and if you have a reasonable doubt on the intent for murder, and the other is if they are aiders and abettors.
Now, aiders and abettors, if they’re surrounding the person with the intent of aiding and abetting, plus the objective foresight for murder, that’s manslaughter. Now, on top of all that, there’s the situation with respect to Mr. Mariani. If he tripped him and foresaw that the kickers were coming, and so on. I felt that it was going to place an undue spotlight on Mr. Mariani, that why I changed it.
[64] A trial judge’s charge must be read as a whole in terms of its fairness and not parsed excessively by placing undue emphasis on individual portions. Nor is it the function of an appellate court to insist upon what it might consider to be other suitable wording, where the charge as a whole identifies the legal issues and adequately relates the evidence to those issues and to the positions of the Crown and the defence. As this Court said in R. v. Archer (2005), 2005 36444 (ON CA), 202 C.C.C. (3d) 60, at 78-79:
A charge to the jury should of course be fair to both the Crown and the defence. The fairness of a jury instruction is best measured by examining the charge as a whole. The general tenor of the instruction and the overall approach taken by the trial judge in his or her charge will usually provide a more accurate insight into its fairness than will a microscopic parsing of isolated passages.
Appellate review of the adequacy and fairness of a jury instruction does not look to the style or format used by the trial judge, but to whether the charge properly instructed the jury as to the relevant law, whether it fairly and accurately outlined the position of the parties, and whether it alerted the jury to the evidence relevant to the position of the parties: R v. Cooper (1993), 1993 147 (SCC), 78 C.C.C. (3d) 289 (S.C.C.) at 301; R v. MacKinnon (1999), 1999 1723 (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.) at 555.
[65] The charge in this case admirably performed those functions. The trial judge had his reasons based on fairness, as he expressed, for not singling out the appellant and he crafted the style and format of his charge in relation to party liability to manslaughter with this in mind. The trial judge was immersed in the dynamics of this long and difficult trial. We were not.
[66] In my view his charge adequately instructed the jury on the complicated notion of party liability to manslaughter.
The Plan to Blame Daniel Weiz
[67] Two more issues remain to be considered. The first involves the plan to blame Daniel Weiz.
[68] The source of this evidence was Natalie Kotin. Ms. Kotin testified that she was present during a conversation in which the appellant and Lee Cochrane discussed the idea of going to the police and blaming Daniel Weiz and a bunch of his friends for the killing.[^3] She conceded, however, that it was just a discussion and not a definite plan, and that she could not recall which of the appellant or Mr. Cochrane actually made the statement, or who else may have been present during the discussion or whether she, herself, was present for the whole discussion.
[69] In fashioning his charge on this evidence, the trial judge had to cope with the fact that the evidence had different significance for different accused. The Crown sought to use the evidence of the plan to blame Daniel Weiz as evidence of consciousness of guilt on the part of the appellant and Lee Cochrane (they each resisted the use of the evidence for that purpose). Mr. Wiez sought to rely on it, however, as evidence that could raise a reasonable doubt about his guilt. In addition, since the source of the evidence was Ms. Kotin, the trial judge had to deal with the frailties in her evidence – discussed in the earlier portion of these reasons dealing with the Vetrovec issue.
[70] He effectively accomplished this task and committed no error in this portion of his charge, in my view.
[71] During the pre-charge submissions the trial judge ruled that the evidence of the plan to blame Daniel Weiz was capable of providing evidence of consciousness of guilt. He began this portion of his charge by reminding the jury that Natalie Kotin and Yavi Lipschitz were good friends and that there was a danger they may have colluded about their evidence and that Ms. Kotin was not being truthful about what she claimed the appellant or Mr. Cochrane said about the plan to blame Daniel Weiz. He pointed out that Ms. Kotin could not remember whether it was the appellant or Mr. Cochrane who made the statement, although she did testify that whoever made the remark did so in the presence of the other. The trial judge then told the jury:
So here is where it gets a little bit tricky, ladies and gentlemen, so I ask you to bear down and bear with me while I try to explain it. If you decide the statement was made either by Mr. Mariani or Mr. Cochrane, then you will have to decide whether you think it is safe to conclude that it was adopted by the other person. Was it said within earshot of the other person? Was it said in circumstances where you expect the other person to disavow himself of it? If you think it is unsafe to conclude that it was adopted by the other person, then the evidence has no value at all against Mr. Mariani or Mr. Cochrane. Why? Because Ms. Kotin is unable to tell us which of Mr. Mariani or Mr. Cochrane made the statement. If it was not adopted by the other, then you do not know who said it and it is of no value as evidence against Mr. Mariani or Mr. Cochrane.
On the other hand, if you decide that the statement was made by either Mr. Mariani or Mr. Cochrane and adopted by the other, then it is some evidence capable of supporting an inference that Mr. Mariani and Mr. Cochrane knew that they were guilty of a crime in relation to Mr. Baranovski’s death and were trying to find a way out of it by putting the blame on somebody else.
[72] The trial judge repeated the substance of these instructions at least once more before turning to other items in his charge. As he did so, he reiterated his warning about the frailties of Ms. Kotin’s evidence. In addition, he pointed out that, even if the jurors decided the appellant or Mr. Cochrane had adopted the statement of the other about the plan, they should nonetheless approach this evidence with caution because it may have been equally consistent with the statements of two scared teenagers who did not participate in the assault but who were present in the park and were afraid they might be accused in the death. Finally, he told the jury that even if they concluded the evidence about the plan to blame Daniel Weiz was not evidence against either the appellant or Mr. Cochrane, it was still evidence of the existence of a plan to blame Mr. Weiz and was therefore capable of contributing to a reasonable doubt about Mr. Weiz’s guilt.
[73] Mr. Litkowski attacks this portion of the charge on the basis that it did not adequately assist the jury in understanding the inherent frailties of Ms. Kotin’s evidence on this issue, and that it did not adequately assist the jury in understanding how to apply the legal principle of “adoption” to the facts as they found them.
[74] I do not agree.
[75] The issue of the frailties in Ms. Kotin’s testimony relates somewhat to the earlier discussion respecting the Vetrovec issue. For these purposes, however, the salient features of these frailties were her friendship with, and the possibility of collusion with, Yavi Lipschitz, which may have led her to fabricate evidence pointing away from him. The trial judge reminded the jurors of this more than once, and he reminded them as well that Ms. Kotin could not remember who it was – as between the appellant and Mr. Cochrane – who made the statement about the plan. The jury would have understood as well, from his summary of counsels’ submissions and the positions of the parties, that the plan had never been implemented and that Ms. Kotin’s memory was weak with respect to who was present at the time of the discussion and who made the statements. The charge, read as a whole, left the jury in no doubt about the need for them to be alert to the difficulties with Ms. Kotin’s evidence.
[76] Nor do I find any error in the trial judge’s charge with respect to the need for the jury to find that the appellant or Mr. Cochrane had “adopted” the statement of the other about the plan to blame Daniel Weiz. No philosophical discussion about the meaning of the word “adoption” is required in such circumstances. The jury was told to weigh whether they were satisfied that the comment had been made within earshot and was instructed to consider whether the statement (assuming it was found to have been made by one of them) was made “in circumstances where you expect the other person to disavow himself of it” before finding that it had been adopted. This was a proper instruction. Although silence alone is not sufficient to create an inference of adoption, as noted by Martin J.A., in R. v. Baron and Wertman (1976), 1976 775 (ON CA), 31 C.C.C. (2d) 525 at 539-540 (Ont. C.A.):
The silence of a party will render statements made in his presence evidence against him of their truth if the circumstances are such that he could reasonably have been expected to have replied to them. Silence in such circumstances permits an inference of assent. [Citations omitted.]
[77] I would not give effect to this ground of appeal.
The Plan to Fight “the Russians”
[78] Finally, the appellant submits that the trial judge erred in failing to give a limiting “propensity” instruction regarding “the plan to fight the Russians”. He declined the request to do so.
[79] It is common ground that the appellant and other persons in the Antibes group went to the park on the evening in question hoping to confront “the Russians” and to engage them in a fight. They wished to retaliate for an earlier slight when someone from “the Russians” had pulled a knife on another member of the Antibes group during a quarrel respecting some drugs.
[80] The appellant concedes that this evidence was admissible as part of the narrative, but submits that it should have been the subject of a limiting instruction from the trial judge to the effect that the jury could not use it as general evidence of bad character or of a propensity for violence on the part of the members of the Antibes group – particularly the appellant: see R. v. Lucas (1962), 1962 625 (SCC), [1963] 1 C.C.C. 1 (S.C.C.); R. v. D. (L.E.) (1989), 1989 74 (SCC), 50 C.C.C. (3d) 142 (S.C.C.); R. v. B. (F.F.) (1993), 1993 167 (SCC), 79 C.C.C. (3d) 112 (S.C.C.): R. v. B. (C.) (2003), 2003 32894 (ON CA), 171 C.C.C. (3d) 159 (Ont. C.A.).
[81] In the appellant’s submission the plan to fight the Russians and the attack on Matti Baranovski and his friends are two separate and distinct events. What the Antibes group decided to do with respect to the Russians was factually unrelated to what they did after that. The jury might therefore have used the evidence of the former to conclude that the appellant was predisposed to engage in assaultive behaviour and therefore that it was more likely that he did so in relation to Matti Baranovski.
[82] Again, I do not agree. The trial judge was correct in concluding that a limiting instruction concerning prohibited propensity reasoning was not appropriate in the circumstances of this case.
[83] The evidence about the plan to fight the Russians was not propensity evidence as that concept is generally understood. It was not highly prejudicial evidence of past conduct tending to demonstrate that the accused was a person of bad character with a general propensity to commit crimes, or crimes of a nature similar to the one in question, and therefore was a person more likely to have committed that crime in question. Indeed, it was not evidence of past conduct at all. Instead, it was evidence of the beginning of a continuous chain of events that started with the intention to get into a fight with the Russians (foiled because the Russians were nowhere to be found) and ended with the intention to rob and assault Matti Baranovski and his friends (tragically successful because they happened to be in the wrong place at the wrong time).
[84] This case is distinguishable from R. v. O’Connor (2002), 2002 3540 (ON CA), 170 C.C.C. (3d) 365 (Ont. C.A.), upon which the appellant relies. In O’Connor the accused was charged with second degree murder. The victim had won some money playing poker and the money was missing after the killing. The victim and the accused had been seen at a charity casino before the killing. At trial, the Crown sought to introduce evidence that the accused had asked one of his friends about a week before the killing a question to the following effect: “If you were me would you blow somebody’s head off?” The comment was made in relation to the accused’s girlfriend’s ex-boyfriend, not the murder victim. This Court held that the statement should not have been admitted, but if admitted, should have been the subject of a direction that the evidence not be used to show propensity or bad character.
[85] Here, however, the situation is different. In O’Connor the impugned evidence related to an event that was clearly separate from the murder with which the accused was charged. It was of little probative value in the murder case itself and was held to be inadmissible. The evidence of the plan to fight the Russians was conceded to be admissible as part of the narrative and was very likely admissible to show the state of mind of the appellant and his co-accused as well. Moreover, as indicated above, it was directly relevant to the circumstances surrounding the attack on Matti Baranovski since, as the Crown submitted, it explained how the Antibes group came to be in the park that evening, and “how the crosshairs shifted to Matti and his friends when the Antibes group did not find their intended targets”.[^4] The Crown never sought to rely on the plan to fight the Russians as propensity evidence or evidence of bad character.
[86] In my view there was no risk, in the circumstances of this case, that the jury would use the evidence of the plan to fight the Russians for such a purpose. I would therefore not give effect to this ground of appeal.
DISPOSITION
[87] For all of the foregoing reasons I would accordingly dismiss the appeal. In closing I would like to thank all counsel on behalf of the panel for their very helpful and able submissions on what is a difficult, and unfortunate, case.
“R.A. Blair J.A.”
“I agree S.E. Lang J.A.”
“I agree J. MacFarland J.A.”
RELEASED: May 3, 2007
[^1]: R. v. W. (D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.).
[^2]: This argument is based on the premise that there was some evidence upon which the jury might find the appellant was the person who pushed or tripped Matti Baranovski, and that there was therefore some basis upon which, if properly instructed, the jury could find the appellant guilty of manslaughter – on the basis that he was a party to the manslaughter – even if they were not satisfied that he was one of the kickers.
[^3]: The trial judge observed that Daniel Weiz may have been an easy target because it was thought that he was about to return to Israel and would not be coming back. Indeed, Mr. Weiz did return to Israel but was subsequently extradited from Israel for purposes of standing trial on these charges. The jury was instructed that they were not entitled to draw any inferences from the fact that Mr. Weiz was extradited.
[^4]: Factum of the Crown, para. 121.