COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mallory, 2007 ONCA 46

DATE: 20070126

DOCKET: C34059 and C34060

SHARPE, SIMMONS and LANG JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

David Finley, John McInnes, Christine Tier and Eliott Behar for the respondent

Respondent

• and -

RICHARD MALLORY and ROBERT STEWART

Richard Litkowski, Catherine Glaister and Delmar Doucette for the appellant Mallory

Robert Stewart appearing in person

Appellants

Ian R. Smith, Louis P. Strezos and Joseph Di Luca, as Amicus Curiae

Heard: November 27 to December 1,

2006

On appeal from the convictions entered by Justice David L. McWilliam of the Superior Court of Justice, sitting with a jury, dated February 1, 2000.

INDEX

PARAGRAPHS

Overview

1

Facts

8

Issues

29

Analysis

32

1. The adequacy of the Vetrovec caution

32

2. The admissibility of narrative evidence relating to the police investigation

71

3. The admissibility of Sauvé’s manslaughter conviction

94

4. The limitation imposed by the trial judge on the cross-examination of Gaudreault relating to the newspaper articles

106

5. The admissibility of certain statements made by Mallory upon his arrest

113

6. The admissibility of reply evidence regarding Stewart’s alleged “no guns” policy

124

7. The admissibility of reply evidence regarding the circumstances of Mallory’s arrest

147

8. A ruling permitting cross-examination of Mallory about evidence he gave at his bail hearing

157

9. A ruling editing transcripts of statements made by Stewart to Smallwood, a jailhouse informant, to exclude Stewart’s exculpatory statements

186

10. A ruling regarding the scope of Stewart’s cross-examination

212

11. The admissibility of “oath-helping” evidence relating to Winn, a jailhouse informant

272

12. Reasonable apprehension of bias on the part of the trial judge

301

13. The propriety of the Crown’s opening and closing addresses

330

14. Fresh evidence and other issues

346

Conclusion

357

BY THE COURT:

OVERVIEW

[1] Richard Mallory and Robert Stewart appeal their convictions on February 1, 2000 by a court composed of McWilliam J. and a jury. Mallory was convicted of two counts of second degree murder and Stewart was convicted of two counts of first degree murder.

[2] The appellants were initially charged together with James Sauvé and Richard Trudel. In the summer of 1995, after the trial involving all four accused had commenced, the charges against the appellants were severed. Sauvé and Trudel were each convicted of two counts of first degree murder on May 20, 1996. The appellants’ trial commenced shortly thereafter. The same judge presided at both trials. Sauvé and Trudel appealed their convictions and this court allowed their appeals and ordered a new trial: see R. v. Sauvé and Trudel (2004), 2004 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.), leave to appeal refused [2004] S.C.C.A. No. 246. Some of the grounds raised in that appeal are also raised here.

[3] Stewart decided to represent himself on this appeal and the court appointed amicus curiae to make submissions with regard to the legal issues arising on his appeal. Mallory was represented by counsel (not the same as his trial counsel).

[4] The appellants’ trial lasted sixteen months. The trial was hard fought, marked by lengthy examinations, cross-examinations, and even lengthy re-examinations of the witnesses and an unfortunate level of acrimony between counsel.

[5] We provide here a brief factual summary that is intended as a general backdrop. We will make further reference to the facts as is necessary to explain our reasons on the many grounds of appeal.

[6] For the following reasons, we allow the appeal and order a new trial. In our view, the trial judge failed to provide the jury with an adequate caution with regard to the disreputable witnesses called by the Crown. There is no meaningful distinction between this case and R. v. Sauvé and Trudel, supra, where this court allowed the appeal on this ground. In addition, we have concluded that there were other legal errors meriting appellate intervention, including the improper admission of Sauvé’s conviction for manslaughter, the improper admission of hearsay evidence of statements from Mallory’s girlfriend, the improper editing of Stewart’s statement to a jailhouse informer to exclude exculpatory statements, and an erroneous ruling declining to impose limits on the Crown’s right to cross-examine Stewart concerning alleged out-of-court statements to unsavoury individuals.

[7] While we are allowing this appeal on a number of grounds, we want to acknowledge that this was a long and complex trial involving a number of discrete and difficult issues. We have attempted to approach this case bearing in mind the number of challenges faced by the experienced and well-respected trial judge, challenges made more difficult by the level of animosity between counsel.

FACTS

[8] It is common ground that Stewart was a high-level drug dealer in the Ottawa area and Mallory was his enforcer. Trudel was a drug dealer associated with Stewart and Sauvé was his enforcer. The two victims were Michel Giroux, a low-level drug dealer, and Manon Bourdeau, his pregnant wife. The victims were killed in their home in Cumberland, near Ottawa, by someone using a shotgun.

[9] The Crown’s theory was that Giroux owed money to Stewart and that Stewart ordered the killings to set an example for other drug dealers who owed him money. The Crown’s position was that Denis Gaudreault drove the four men – the appellants, together with Sauvé and Trudel – to Giroux and Bourdeau’s home. Stewart remained in the car with Gaudreault. Sauvé, Trudel, and Mallory went inside to kill the victims. Sauvé was said to be the triggerman.

[10] There was no forensic evidence linking the appellants to the crime scene. The appellants disputed any connection between the Stewart and Trudel drug ring and Giroux and Bourdeau. The Crown’s case essentially rested on the testimony of three witnesses: Denis Gaudreault (also the Crown’s key witness at the Sauvé and Trudel trial), Michael Winn, and John Smallwood. As in R. v. Sauvé and Trudel, supra, there was other evidence supporting the Crown’s case, but much of it was subject to its own significant frailties.

[11] Gaudreault testified that he supplied weapons at Stewart’s request, drove the four men to the road near the victims’ house, waited in the car with Stewart while the other three went into the house to kill the victims, and then drove all four back to Stewart’s house. Michael Winn, who had met the appellants in jail, claimed that they made inculpatory statements to him about their involvement in the killings. John Smallwood, another jailhouse informant, recorded conversations with Stewart in which Stewart made a statement, parts of which were arguably inculpatory while other parts were exculpatory. The trial judge admitted the allegedly inculpatory portions of the statement and excluded the exculpatory portions.

[12] Gaudreault’s testimony was central to the Crown’s case and, as explained below, the appellants strongly attack the credibility and reliability of his evidence. Gaudreault’s evidence provided a link between Stewart and the victims, a motive for the murders, and his own account of the crime as an accomplice. He testified that he had seen Giroux with Trudel and Stewart on several occasions and that in December 1989 and January 1990 Stewart was very agitated and concerned about money, his debts, and the debts owed to him by others.

[13] Gaudreault testified that in late 1989 and early 1990 he owed a substantial amount of money to Stewart as a result of his dealing in and consuming of drugs. Gaudreault testified that in November and December 1989, as his debts with Stewart were mounting, Stewart and Stewart’s associate, Michael Vanasse, told him they were tired of people owing them money and that an example would soon be made. Shortly after Christmas they told Gaudreault that he would be reading about such an example in the newspaper. Another of Stewart’s drug dealers, Jamie Declare, testified that in mid-December Stewart complained about a couple that owed him money and were resistant to paying it back. Declare also testified that Stewart told him that Vanasse wanted Gaudreault killed.

[14] Gaudreault testified that on January 9, 1990, he overheard Stewart yelling into the telephone, “if you think you’re going to get away with this, you and your old man, you got something coming”. After the telephone call, Stewart told Vanasse that it was “that fucking bitch from Cumberland”. The Crown theorized that Stewart was referring to Bourdeau. Stewart said he was going to have Mallory deal with the problem and a meeting was set up for later that afternoon. Gaudreault attended this meeting along with Trudel, Vanasse, and the appellants, but was not privy to any planning that may have occurred.

[15] Gaudreault testified that Stewart and Vanasse visited him on the morning of January 16, 1990. They wanted money from him and complained about dealers like Gaudreault who were not settling their debts. Stewart said, “pretty soon they were going to make an example and [Gaudreault] could read about it.” After Stewart and Vanasse departed, Gaudreault and Declare smoked crack all afternoon until the evening when they ran out of drugs. Gaudreault then returned home.

[16] Once Gaudreault arrived home he received a call from Stewart, who asked for a ride and for Gaudreault to bring the “tools”, his term for firearms and ammunition, that he stored for Stewart in the basement of his home. About 15-20 minutes later, Trudel, Sauvé, and the appellants arrived at Gaudreault’s home. Gaudreault was told he would drive a white Cadillac. Gaudreault brought up a bag of firearms from the basement, including a sawed-off shotgun, which on the Crown’s theory was the murder weapon and a .223 rifle which the Crown claimed was taken by Mallory.

[17] There was evidence adduced at trial linking Sauvé, Trudel, and the appellants with a white Cadillac: Sauvé owned a white Cadillac, Trudel had been seen driving the vehicle, and Stewart and Mallory’s fingerprints were found in that car. According to Gaudreault, Stewart directed him to drive the white Cadillac to the home of the deceased in Cumberland where he dropped off Sauvé, Trudel, and Mallory. Gaudreault testified that he and Stewart drove off but returned a few minutes later to pick up the other three. On the way back to Stewart’s house, Stewart asked how it went and someone said there was “no problem” and that a television had been left on. Mallory put the weapons in a bag and Gaudreault said that he heard noises, like metal hitting glass, suggesting that Sauvé was throwing spent shotgun shells out the window.

[18] When they reached Stewart’s house, according to Gaudreault, Trudel told Stewart, “No problem. He got it twice and the bitch got done in the back”. This statement corresponded with the cause of death – Giroux had been shot twice and Bourdeau had been shot once in the back. Stewart told Gaudreault he would reduce his debt by $2,000 and asked him to pay Sauvé and Trudel $10,000 out of money Gaudreault owed Stewart. Gaudreault testified that Stewart then had his wife, Linda Beland, drive Gaudreault home. Beland testified for the Crown but could not recall whether she had driven Gaudreault home.

[19] After he arrived home, Gaudreault cleaned and reloaded the guns. He noticed that there were three shells missing from the shotgun. In earlier statements to the police he contradicted himself about the number and colour of the missing shells. After putting the guns away, Gaudreault went to Declare’s house and spoke with him. Gaudreault relayed the incident to Declare who concluded that Gaudreault went on a hit. Declare confirmed that one night around 11 p.m. he had a similar conversation with Gaudreault, although there were some discrepancies between his recollection and Gaudreault’s testimony. In the following days, Gaudreault made the requested payments to Sauvé and Trudel.

[20] On January 22, 1990, a few days after the killings, Stewart and Vanasse visited Gaudreault’s house. Gaudreault testified that Stewart produced a newspaper article about the Cumberland killings and said, “That’s what happens to assholes when they don’t pay up” and that he “didn’t know the bitch was pregnant”. Several people who, according to Gaudreault, witnessed this event testified that it never happened.

[21] On January 31, 1990, Gaudreault and the members of his household departed from Ottawa. At the time Gaudreault still owed Stewart $13,000 and also took with him a large quantity of Stewart’s hashish. Before leaving Ottawa, Gaudreault told his sister, Sylvie Gravelle, that Stewart was involved in the murders of Paulo Trudel (Trudel’s brother) and Denis Roy. When Sylvie Gravelle asked about the Cumberland killings, Gaudreault said that the four murders were all connected. It was agreed at trial, however, that both the Trudel and Roy deaths were suicides, not murders. Soon after Gaudreault left Ottawa, the Crown alleged that Stewart began making threatening telephone calls to Sylvie Gravelle and to Rhonda Nelson, Gaudreault’s girlfriend, about the money and drugs Gaudreault owed him. Because of Stewart’s threats, Sylvie Gravelle sought police protection, pressed Gaudreault for information about the Cumberland killings, and urged him to go to the police.

[22] Gaudreault met with police officers in February and March 1990, and gave them some information about the Cumberland murders. He initially did not tell the police about his role in driving the car nor did he implicate Sauvé. Over time, and once Gaudreault was given assurances about witness protection and related payments of money, he gradually disclosed his purported involvement and that of Sauvé, Trudel, and the appellants.

[23] At trial, Gaudreault was cross-examined at length and his credibility was strongly attacked. His cross-examination revealed that he had lied to the police, fabricated evidence, and lied at the preliminary inquiry. He had a lengthy criminal record and had continued to commit criminal offences after he went to the police and entered the Witness Protection Programme. Further, in January 1990, Gaudreault was using large amounts of drugs and had been using cocaine on the day of the killings. His account of events on the night of the murders evolved significantly after he first spoke to the police. He did not name Sauvé as a participant until the lead investigator, Detective Heather Lamarche, indicated that she had reason to believe Sauvé was the shooter. The appellants contended that Gaudreault had obtained details of the crime from newspaper accounts, including some incorrect facts that found their way into the information he provided to the police, but Gaudreault denied reading the newspaper accounts and the Crown contended that Gaudreault had given them some details not found in the press reports. The appellants also attacked Gaudreault’s credibility on the basis that he had been paid substantial sums of money by the police during the course of the investigation and shortly before the trial.

[24] Two additional witnesses who testified at trial were central to the Crown’s theory. Winn, who was a drug dealer, testified that the appellants confessed to him in jail that they had been involved in the murders. Smallwood, who was serving time for fraud, wore a recording device in jail that captured conversations between him and Stewart mid-way through the trial. The Crown contended that certain statements made by Stewart to Smallwood amounted to a confession of his role in the murders. The appellants contended that these statements were intended to be sarcastic. The trial judge refused to leave the jury with other parts of Stewart’s statement to Smallwood in which Stewart professed his innocence.

[25] The defence theory was that someone other than the appellants was responsible for the crime. The appellants argued that they did not know the victims, did not sell them drugs, and that the victims did not owe them any money.

[26] The appellants argued that because a pregnant woman was murdered, the police were particularly motivated to solve the crime quickly. Their investigation, however, was fruitless until they met Gaudreault. Gaudreault became essential to the police investigation and they encouraged and rewarded him for his information. The appellants contended that the police did not properly evaluate the authenticity of Gaudreault’s story despite his career as a criminal, a liar, and the inconsistencies in his story. The police investigation then went about filling the holes in Gaudreault’s narrative and failed to investigate other potential suspects. The attack on the integrity of the police investigation provoked the Crown to lead a substantial body of otherwise inadmissible evidence about the narrative of how the investigation unfolded. One key item of evidence led in this regard was that Sauvé had been convicted of manslaughter and was on parole for this offence when these murders were committed.

[27] The appellants argued that Gaudreault, Winn, and Smallwood were unsavoury characters whose stories should not be believed. One of the principal issues on this appeal, as in R. v. Sauvé and Trudel, supra, is the adequacy of the trial judge’s Vetrovec warning regarding these key witnesses.

[28] Mallory testified at trial but Stewart did not. Mallory testified that he did not know the victims and knew nothing about how they were killed. He could not remember where he was on the night of January 16, 1990, as he was arrested almost a year later in December 1990. Mallory denied the truth of Gaudreault’s testimony with one exception. Mallory acknowledged that after Gaudreault left Ottawa, he and Stewart went to Sylvie Gravelle’s home and threatened her because they were looking for Gaudreault who owed Stewart money and drugs.

ISSUES

[29] Counsel for Mallory and amicus curiae for Stewart advanced a number of grounds of appeal with respect to:

1. The adequacy of the Vetrovec caution;

2. The admissibility of narrative evidence relating to the police investigation;

3. The admissibility of Sauvé’s manslaughter conviction;

4. The limitation imposed by the trial judge on the cross-examination of Gaudreault relating to the newspaper articles;

5. The admissibility of certain statements made by Mallory upon his arrest;

6. The admissibility of reply evidence regarding Stewart’s alleged “no guns” policy;

7. The admissibility of reply evidence regarding the circumstances of Mallory’s arrest;

8. A ruling permitting cross-examination of Mallory about evidence he gave at his bail hearing;

9. A ruling editing transcripts of statements made by Stewart to Smallwood, a jailhouse informant, to exclude Stewart’s exculpatory statements;

10. A ruling regarding the scope of Stewart’s cross-examination;

11. The admissibility of “oath-helping” evidence relating to Winn, a jailhouse informant;

12. Reasonable apprehension of bias on the part of the trial judge; and

13. The propriety of the Crown’s opening and closing addresses.

[30] Stewart added a number of additional grounds of appeal directed at obtaining an acquittal. These included the alleged inadequate assistance of counsel at trial, an allegation linked to his assertion that a number of lawyers conspired with the police and the trial judge to frame him for these crimes. He also sought to adduce as fresh evidence Linda Beland’s post-trial version of what occurred at her home on the night of the murders. The fresh evidence application is addressed along with these other issues as a fourteenth ground of appeal.

[31] For the following reasons we allow the appeal and order a new trial.

ANALYSIS

1. The adequacy of the Vetrovec caution

[32] The appellants challenge the adequacy of the trial judge’s Vetrovec caution regarding the evidence of Gaudreault, Winn, and Smallwood. They rely on this court’s decision in R. v. Sauvé and Trudel, supra, holding that the Vetrovec caution was inadequate. The appellants submit that the facts and circumstances relating to the three unsavoury witnesses in this case and the correlative Vetrovec caution was almost exactly the same as in R. v. Sauvé and Trudel, and that accordingly, R. v. Sauvé and Trudel must apply.

[33] We accept the appellants’ submission that there is no meaningful basis for distinguishing this case from R. v. Sauvé and Trudel, supra, on this issue.

[34] In R. v. Sauvé and Trudel, supra, this court found two fundamental flaws in the Vetrovec caution given by the same trial judge regarding the evidence of Gaudreault, Jack Trudel, and Scott Emmerson. The substance of Gaudreault’s evidence in the Sauvé and Trudel trial essentially mirrored his evidence at this trial. Jack Trudel is the brother of Richard Trudel, one of the accused in the related case. Jack Trudel and Emmerson testified about statements allegedly made by the accused in that case implicating those accused in the murders.

[35] This court held in R. v. Sauvé and Trudel, supra, that because of the importance of the three unsavoury witnesses and the frailties in their evidence, a Vetrovec caution was mandatory. While recognizing that the content of a Vetrovec caution is discretionary, this court concluded, at para. 89, that this was “one of those few cases where the trial judge’s exercise of discretion was unreasonable” and that the trial judge erred in law by: first, failing to explain the reasons for the need for special scrutiny, and second, failing to give a sufficiently strong warning about the danger of acting on the unconfirmed evidence of the unsavoury witnesses.

[36] At paras. 77 to 80 of its judgment, this court identified three specific reasons calling for special scrutiny of the unsavoury witnesses’ evidence that were not explained to the jury.

[37] First, Emmerson fell within the category of a jailhouse informer (at para. 78):

Informers, especially jailhouse informers, have means to obtain information other than from the accused. The prosecution will often take the position that this evidence must have come from the accused since the informer had no other means of obtaining it. Informers are resourceful and well capable of obtaining information that they later plant into the mouth of the accused.

[38] Second, (at para. 78): “it was shown that Gaudreault had lied under oath and had actually manufactured evidence in order to bolster his credibility” and that the trial judge had to ensure that the jury understood that Gaudreault and the other two witnesses “were quite capable of lying and manipulating the truth to an astonishing degree, but also present as confident and honest before the jury”.

[39] Finally, (at para. 80): “Gaudreault presented a special problem because his close association with the murders would enable him to provide details of the crime and falsely implicate the accused in order to cover up his own involvement” and that “it was important that the jury understand that such witnesses can have particular motives to lie”.

[40] This court characterized the strength of caution that was given, at para. 89, as “simply [instructing] the jury that it may be prudent, where they considered it advisable, to look for supporting evidence.” This court concluded that such a warning was not sufficient. Rather, the case “demanded the strongest possible warning”, namely, “a direction that it was ‘dangerous’ to act on the unconfirmed evidence of the three principal witnesses.”

[41] The appellants submit that as in the Sauvé and Trudel trial, the Crown’s case was built around Gaudreault’s evidence. Further, they contend that Gaudreault’s evidence at this trial suffered from all of the same frailties: e.g. use of drugs; general difficulties with memory; flashbacks, paranoia, blackouts and hallucinations; admitted lies to the police; perjury at the preliminary hearing; deals with the police and suggestions that he was testifying for money; an extensive criminal history as well as ongoing criminal activity; holding back information from the police to use as bargaining ploys; fabrication of evidence to bolster his credibility; threats to kill others over drug debts; an outstanding debt to Stewart and theft of Stewart’s drugs; inconsistent statements; and a concern that that he might be charged with the murders depending on what he told the police.

[42] Just as in the Sauvé and Trudel trial, the Crown relied on the evidence of two unsavoury informers with extensive criminal records. As in the Sauvé and Trudel trial, the two informers testified about statements allegedly made by the appellants implicating them in the murders. However, unlike in that trial, all of the statements were allegedly made in jail, placing both Winn and Smallwood in the category of jailhouse informants.

[43] Finally, the appellants submit that the trial judge’s Vetrovec caution in this case is essentially identical to the caution he gave in the Sauvé and Trudel trial.

[44] The Crown attempts to distinguish R. v. Sauvé and Trudel, supra, both on the facts and in terms of the cautions that were given. Relying on R. v. Zebedee, 2006 22099 (ON CA), [2006] O.J. No. 2628 (C.A.), the Crown submits that the Vetrovec caution was adequate.

[45] The Crown relies on three main factual differences to distinguish this case from R. v. Sauvé and Trudel, supra.

[46] First, unlike in R. v. Sauvé and Trudel, supra, here one of the appellants testified. The Crown contends that Mallory’s evidence regarding Stewart’s drug business and Gaudreault’s role in that business provides some support for Gaudreault as a truth-teller and therefore diminishes, at least to some extent, the level of caution required concerning Gaudreault’s evidence.

[47] Second, unlike in R. v. Sauvé and Trudel, supra, the appellants did not challenge Gaudreault’s evidence on the basis that he was an accomplice and potential perpetrator. Rather, the appellants’ position at trial was simply that Gaudreault was a liar. The Crown submits that an explanation of Gaudreault’s status as an accomplice was not only unnecessary, but undesirable in that it may have afforded an element of credibility to his evidence that the appellants did not wish him to have.

[48] Third, the Crown submits that Winn and Smallwood do not fall into the same extreme category of Vetrovec witnesses as do Emmerson and Jack Trudel and that their evidence did not demand the same level of caution. The Crown points out that when Winn came forward in 1993, he was on the reformation track and had no criminal convictions since 1989. Further, at the time of trial he was working as a landscaper. Moreover, even though he committed a further offence in 1998 a fact that was pointed out to the jury. The Crown submits that his crime-free interval places him in a different category than Emmerson and Jack Trudel.

[49] As for Smallwood, the Crown relies on the fact that his conversations with Stewart were recorded and that Stewart’s allegedly inculpatory statement was overheard by another inmate. The Crown submits that these factors significantly diminish the level of caution required in relation to Smallwood’s evidence.

[50] In addition to these factual distinctions, the Crown submits that there are two important differences between the Vetrovec cautions that were given in this case and the caution that was given in R. v. Sauvé and Trudel, supra.

[51] The first difference is that, unlike R. v. Sauvé and Trudel, supra, in this case, the trial judge gave a mid-trial instruction immediately following the evidence of both Winn and Smallwood. The essence of the cautionary aspect of these instructions was as follows:

• these two witnesses fall into the category of in-custody informants, sometimes referred to as jailhouse informants or rats;

• where a witness has a lengthy criminal record, has received benefits of either reduced sentences or monetary rewards or other benefits to help the police then the jury should scrutinize his or her evidence very carefully; and

• legal experience tells us that miscarriages of justice can occur when the evidence of such witnesses is not carefully examined.

[52] Although the trial judge did not repeat his mid-trial instructions in the oral portion of his jury charge, he did reproduce the mid-trial instruction relating to Winn in a typed portion of his charge that was given to the jury.

[53] The Crown submits that these instructions had the effect not only of singling out these two witnesses for special attention, but also of signalling to the jury the level of caution that was required in relation to their evidence.

[54] The second difference in the instructions relied on by the Crown is the addition of two sentences to the Vetrovec caution that was given near the beginning of the trial judge’s jury charge. Before reproducing the actual Vetrovec caution, we will first set out a paragraph that introduced it:

Credibility is important in this case. There are witnesses whose criminal records are quite extensive, and whose records do not include all their criminal activity. Some witnesses on both sides have admitted to lying under oath whether or not a charge of perjury can be successfully laid. Obviously at least three of those witnesses are important to the Crown’s case. They are Denis Gaudreault, Michael Winn and John Smallwood. In Winn’s case he may have had a period of sustained remission since 1989, with one hitch in 1998. Gaudreault, too, may be tentatively turning over a new leaf, but his case may be more problematic than Mr. Winn’s. But he has something he “didn’t have before”, he is working. Smallwood gave his own reasons for coming forward to testify.

[55] The Vetrovec caution given in this case is set out below, and the added sentences are emphasized:

Nevertheless, where witnesses have such unsavoury backgrounds, as those particular named witnesses, experience teaches us that sometimes justice is perverted by their conduct as witnesses. Sometimes they make the blameless seem blameworthy. Consequently it is prudent to examine their evidence carefully, and to look at the evidence of other witnesses or exhibits to see if they support the evidence of witnesses like Gaudreault, Winn and Smallwood. It will be for you to determine how much supporting evidence you would require to make any particular part of their evidence acceptable. There may well be parts of their evidence which you find acceptable as given and not needing any supporting evidence because of the way it was given or the common sense supporting such an inference.

Of course, you must remember that simply because a person is of unsavoury character does not mean that his or her evidence must be rejected out of hand without it being adequately considered. You should not turn the unsavoury character caution from me into, as I have said before at the trial, an axiom of disbelief. It is not unusual for witnesses of unsavoury character to be called as witnesses when the facts of the case require an examination of an illegal business. Who are the employees of an illegal business likely to be? They are often likely to have long criminal records and have had other brushes with law enforcement. As with any witness, the jury must dig into each witness’ evidence, and consider it adequately. As part of that consideration it may be prudent for you, where you consider it advisable, to look for evidence which tends to support the evidence of those three particular witnesses. The Crown and the defence have referred you to the particular parts of the evidence that they think are supportive and non-supportive respectively. The ultimate decision is for you to make. Remember that as jurors you may choose to accept all, part or none of what any witness says, whether that witness be unsavoury or not. The criteria on which you base these decisions lie entirely in your hands. You are the judges of the facts. [Emphasis added.]

[56] The Crown submits that the added sentences had two important effects. First, they would have reminded the jury of the evidence at trial concerning the unsavoury character of these witnesses and therefore of why caution was required in relation to their evidence. Second, they would have signalled to the jury the necessary level of caution, i.e. the degree of caution necessary to avoid a perversion of justice.

[57] We have concluded that there is no meaningful basis for distinguishing this case from R. v. Sauvé and Trudel, supra, on the issue of the adequacy of the Vetrovec caution and that this court’s reasoning in the related case therefore applies. We reach this conclusion for four reasons.

[58] First, while it may have been open to the jury to find that Mallory’s evidence provided some support for Gaudreault’s credibility, the Crown does not contest that Mallory’s evidence related to peripheral matters. In our view, having regard to Gaudreault’s central role in the case and the significant frailties associated with his evidence, Mallory’s evidence did not diminish the level of caution that was necessary in relation to Gaudreault’s evidence.

[59] As in R. v. Sauvé and Trudel, supra, Gaudreault’s evidence provided virtually the entire factual underpinning for the Crown’s case. The problems associated with his evidence went beyond having a significant criminal record and being an accomplice to the crime. As this court noted in the related case, Gaudreault had lied under oath and fabricated evidence. Just as in the related case, it was therefore essential that the jury understand that Gaudreault was “quite capable of lying and manipulating the truth to an astonishing degree, but also present as confident and honest before the jury.”

[60] In our view, Mallory’s evidence neither diminished the level of caution necessary in relation to Gaudreault’s evidence nor obviated the need to explain the reasons for the need for scrutiny.

[61] Second, the fact that the appellants in this case did not challenge Gaudreault’s evidence on the basis that he was an accomplice does not change the fact that based on his own evidence and the Crown’s theory he was an accomplice. In our view, it was Gaudreault’s status as an accomplice, rather than the defence position at trial, that created the need for caution in relation to his evidence.

[62] Since the defence position at trial could not change the requirement for caution, in our view, it did not diminish the trial judge’s obligation to explain the reasons why an accomplice’s evidence calls for special scrutiny. As this court explained in R. v. Sauvé and Trudel, supra, at para. 80, “it was important that the jury understand that such witnesses can have particular motives to lie.”

[63] Such an explanation would no doubt have included a statement that, according to the Crown, Gaudreault was an accomplice. In these circumstances, we see no risk to the defence position at trial from giving the necessary caution.

[64] Third, we agree that the level of caution required in relation to Smallwood’s evidence should have been attenuated by the fact that his conversations with Stewart were recorded. In our view, however, the ameliorative effect of such a recording was diminished by the fact that the jury did not hear allegedly exculpatory portions of the conversation and by Smallwood’s denial of the suggestion that Stewart also made exculpatory statements, an issue raised as a separate ground of appeal and dealt with below.

[65] In any event, even if the level of caution required in relation to Smallwood’s evidence was not as high as that required in relation to Emmerson and Jack Trudel, we reject the Crown’s submission that Winn’s evidence did not require the same level of caution as those two witnesses. Assuming that Winn was actually on a reformation track, the fact remained that he was a long-time police informant, that he fell into the category of a jailhouse informer, and that he received significant payments from the Witness Protection Programme as the result of coming forward with his evidence. The evidence of such a witness demands a high level of caution: see R. v. Sauvé and Trudel, supra, at para. 76, referring to The Commission on Proceedings Involving Guy Paul Morin: Report (Toronto: Ontario Ministry of the Attorney General, 1998), and Thomas Sophonow Inquiry Report (Winnipeg: Manitoba Justice, 2001).

[66] As this court explained in R. v. Sauvé and Trudel, supra, at para. 81, in relation to all three unsavoury witnesses:

[T]he need for this special care and for informing the jury of the reasons for the special care rests on the concern that the lay members of the jury simply do not have the necessary experience to adequately assess the credibility of these types of witnesses.

[67] Fourth, while the mid-trial instructions and the two sentences that were added to the trial judge’s jury charge are no doubt of some benefit, they do not address the two fundamental problems identified in R. v. Sauvé and Trudel, supra. In particular, they do not explain why an informer’s testimony requires special caution nor do they specify problems in Gaudreault’s evidence identified by this court in R. v. Sauvé and Trudel.

[68] Further, since at their core the additional comments remain an instruction “simply … that it may be prudent, where [the jury] considered it advisable, to look for supporting evidence”, they do not provide a sufficiently strong warning about the danger of acting on the unconfirmed evidence of the unsavoury witnesses.

[69] In our view, as in R. v. Sauvé and Trudel, supra, at para. 210, even though these witnesses were cross-examined about the numerous frailties in their evidence over many days (Gaudreault for over approximately 15 days, Smallwood 5 days, and Winn 3 days) and the jury heard various submissions as to why they should not be believed, given their central role in the case and the frailties in their evidence, something was missing, namely:

…a clear and explicit direction from the trial judge that as a matter of law it was dangerous to act on their evidence and an expression from the trial judge, not defence counsel as to why it was dangerous in this particular case.

[70] In our view, the Vetrovec caution given in this case suffered from the same legal errors as the caution given in R. v. Sauvé and Trudel, supra. Accordingly, we would give effect to this ground of appeal.

2. The admissibility of narrative evidence relating to the police investigation

[71] The appellants submit that the trial judge erred by admitting a considerable volume of evidence led by the Crown in relation to the police investigation. In order to deal with this submission, it is necessary to consider how the issue of the integrity of the police investigation unfolded over the course of the trial.

[72] The appellants brought various pre-trial motions. One of the most significant was the abuse of process motion, an omnibus attack on the prosecution that, among other things, attacked the integrity of the police investigation. The trial judge dismissed this motion: see R. v. Mallory, [2000] O.J. No. 954 (S.C.J.). The investigation had also been attacked in R. v. Sauvé and Trudel, supra.

[73] In the Crown’s opening, the Crown anticipated an attack on the integrity of the investigation by the defence. The Crown described how the investigation “belonged” to Detectives Lamarche and Riddell, but that more officers were added in 1993. The Crown introduced Lamarche, mentioned that she would testify after Gaudreault, and explained her role in the Crown’s case.

[74] Defence counsel applied for a mistrial immediately after the Crown’s opening address, largely on the basis that the Crown had inappropriately and unfairly characterized the appellants’ position, but asked for an adjournment and an opportunity to argue the motion with a full transcript of the Crown’s opening. The trial judge refused to delay the trial while the transcript of the Crown’s opening address was being prepared and ruled that defence counsel could renew the motion when the transcript became available, but gave that the defence the option of making an opening address to the jury.

[75] Counsel for Stewart elected to open to the jury. She responded to the Crown’s characterization of the defence position by arguing that Lamarche was relatively inexperienced yet very motivated to solve this high profile crime. Counsel for Mallory elected not to present an opening argument. The application for a mistrial was later renewed when the transcript became available but was dismissed by the trial judge.

[76] Lamarche, the lead investigator, was called by the Crown immediately after Gaudreault testified. During Lamarche’s examination-in-chief, cross-examination, and re-examination, there were many objections, submissions, and rulings as to the extent to which the parties were entitled to probe the police investigation. The Crown sought to bolster the investigation and managed to adduce a considerable body of highly prejudicial hearsay evidence. The defence sought to undermine the investigation and thereby provided the Crown with some justification for leading this contentious body of evidence. What follows is but a brief summary of how this unfolded.

[77] When Lamarche took the stand, there had been no defence application to lead evidence of “other suspects” nor had there been any application, voir dire, or ruling with respect to the parameters of Lamarche’s evidence as to the course of the investigation. Crown counsel proceeded to lead evidence, much of it hearsay, over the objection of the defence, to establish the integrity of the investigation, to elucidate Lamarche’s state of mind as the investigation progressed, and to corroborate Gaudreault’s testimony. The Crown argued that Stewart’s counsel had attacked Lamarche in her opening address and that Lamarche was entitled to defend herself.

[78] Mallory’s counsel sought to distance his client from any attack on the integrity of the investigation and submitted that none of Lamarche’s testimony was admissible against his client. Counsel for Mallory conducted a brief cross-examination of Lamarche that did not focus on her state of mind.

[79] Counsel for Stewart asked Lamarche many questions about the investigation during a lengthy cross-examination. Counsel for Stewart then asked for permission to cross-examine Lamarche about other suspects and the alleged failure to explore other potential leads on the theory that the police blindly relied on Gaudreault and ignored other potential suspects. The Crown vigorously objected to questions focusing on other potential suspects. The trial judge held that defence counsel could pursue this issue if it went to the “state of mind of Detective Lamarche at that stage of the investigation, and the steps she was taking in the investigation against the backdrop of all the information she was receiving about the case at that time”.

[80] In an unusually lengthy re-examination that extended over several days, the Crown was permitted to lead a significant body of “investigative hearsay” evidence to explain the conduct of the investigation in response to the “other suspects” theory advanced by Stewart. Much of this evidence was highly prejudicial to the appellants. It included Sauvé’s previous manslaughter conviction, evidence that Sauvé and Trudel had “spoken” (confessed) to various individuals not called by the Crown, and otherwise inadmissible evidence that police intelligence dating from June 1990 suggested that the Vanasse organization was responsible for a number of murders in the Ottawa area.

[81] Following re-examination, counsel for the appellants asked for permission to re-cross-examine Lamarche but the trial judge refused to allow them the opportunity. The trial judge also dismissed a mistrial application after the completion of Lamarche’s evidence.

[82] The trial judge provided limiting instructions about the admissibility and limited use of hearsay evidence during Lamarche’s evidence in-chief, in cross-examination, and in re-examination. In his charge to the jury, the trial judge repeated his instruction as to the limited use of hearsay evidence. However, some of the hearsay evidence led through Lamarche found its way into the trial judge’s summary of the evidence without any accompanying instruction as to its permitted use.

[83] The manner in which the issue of hearsay evidence led in relation to the investigation was managed in this case was problematic from a number of perspectives. No doubt, the defence strategy invited much of this evidence. However, there was some highly prejudicial evidence, admitted under the guise of a response to the attack on the investigation, which should have been kept from the jury.

[84] As we have concluded that the convictions must be set aside and a new trial ordered on the basis of numerous other grounds of appeal, we do not consider it necessary to consider that body of evidence in detail. We propose to offer a number of observations on the issue of investigative hearsay and to deal with one particularly problematic piece of evidence, namely, the evidence of Sauvé’s manslaughter conviction that is raised as a separate issue, below.

[85] Unfortunately, the parties and the trial judge did not have the benefit of this court’s judgment in R. v. Dhillon (2002), 2002 41540 (ON CA), 166 C.C.C. (3d) 262 (Ont. C.A.), which considered the issue of investigative hearsay. At para. 51 of their reasons, Laskin and Goudge JJ.A. offered the following “general observations about investigative hearsay evidence led to address a defence contention of an inadequate police investigation”:

(a) The risks of an accused advancing this kind of defence are all too apparent.

(b) If an accused intends to claim that a police investigation was inadequate, it may well be safest for the trial judge to conduct a full voir dire before ruling. In a voir dire, the trial judge can more precisely balance the probative value and prejudicial effect of the proposed evidence and need not rely on counsel’s broad representations about the evidence. Moreover, the accused’s decision about whether to pursue this line of questioning can then be made with fuller information about its potential impact.

(c) If the defence seeks to cast doubt on the adequacy of the investigation of other possible suspects, in principle we see no reason why the Crown is necessarily precluded from leading evidence about the police investigation of the accused, provided that evidence is relevant to the adequacy of the investigation. With limited resources, police decisions about investigating other suspects may well depend on their knowledge of the accused and his activities.

(d) If evidence of the police investigation is admissible and is pursued, its limited use must be made clear to the jury. See R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 147 C.C.C. (3d) 449 at para. 184. In the course of instructing the jury on the permissible uses of this evidence, the trial judge would be wise to highlight specifically those parts of the investigation that would otherwise be inadmissible as either hearsay or police opinion.

[86] This case demonstrates the wisdom of these general guidelines.

[87] First, the decision by an accused to attack the integrity of the investigation is a permitted but risky strategy. The risk is that the accused will make relevant and admissible evidence that the Crown could not ordinarily lead. In this case, a considerable volume of what would otherwise have been inadmissible hearsay relating to the decisions made by the investigative team and the progress of the investigation became admissible because of the defence strategy. The problem escalated when, during Lamarche’s cross-examination, the defence introduced the “other suspects” issue over the Crown’s objection. The trial judge made a ruling permitting the appellants to cross-examine Lamarche on that issue and that ruling was not challenged on this appeal. Accordingly, like the court in R. v. Dhillon, supra, at para. 46, we conclude that this is not the proper case to decide “when, if ever, the defence should be permitted to introduce investigative hearsay evidence to support an allegation that the police investigation of other leads was inadequate” and we should not be taken as endorsing the trial judge’s ruling in this case. We observe, however, that by raising the “other suspects” issue, the defence invited a response that included damaging hearsay evidence, much of it led in reply, as to what the police did and why they did it.

[88] Second, the history of this case demonstrates the wisdom of confronting the issue as early as possible in the trial, whether following a voir dire or otherwise, to obtain a clear ruling to define the parameters and limits on this type of evidence and to ensure that the evidence will be led in an orderly manner that is fair to both sides.

[89] The problem began when the Crown introduced the issue in its opening and then in direct examination of Lamarche in an attempt to bolster Gaudreault as a witness. The issue of the integrity of the investigation was one for the defence to raise, not for the Crown to anticipate. Unless and until the defence introduced the issue, the Crown should have avoided it. A defence attack on the investigation may well have appeared inevitable, but in our view the Crown should have left the issue alone and done nothing that could be seen as forcing the defence’s hand. We deal below with other problematic aspects of the Crown’s opening which have at their core the same common element: rather than present an outline of the case it intended to lead, the Crown used the opening to argue the case.

[90] We certainly do not say that the unsatisfactory manner in which this issue unfolded was entirely attributable to the Crown. The defence attacked the investigation and that attack invited a response. The defence’s introduction of the “other suspects” issue mid-way through Lamarche’s cross-examination had a cascading impact resulting in Lamarche testifying over several days in re-examination. This produced the unfortunate result of the Crown leading a highly contentious body of damaging hearsay evidence in circumstances offering the defence little or no chance to challenge it. Clearly, it would have been preferable had the entire issue been confronted at the outset to enable the trial judge to fashion a ruling that would permit the fair and orderly presentation of any proper evidence relating to the integrity of the investigation.

[91] Third, there are limits to the evidence the Crown can lead in response to a defence attack on the integrity of the investigation. The Crown’s evidence must be relevant to the attack: see R. v. Dhillon, supra, and the discussion of the Sauvé manslaughter conviction, below. The trial judge must precisely balance the probative value and prejudicial effect of the proposed evidence. In our view, the evidence led through Lamarche of information received from unnamed confidential informants the Crown did not call implying that Sauvé and Trudel had confessed to the crime was obviously suspect on that score.

[92] Fourth, as stated in R. v. Dhillon, supra, a careful instruction to the jury as to the limited permissible use of the hearsay evidence is required. As we have already indicated, the trial judge did provide a general limiting instruction, but unfortunately, when it came to summarizing the evidence, he included some elements of the investigative hearsay evidence. It would be asking too much to expect the jury to apply the general instruction, especially as the trial judge himself appears to have overlooked the hearsay quality of this evidence.

[93] We conclude our analysis of the investigative hearsay by considering the wrongful admission of Sauvé’s manslaughter conviction, raised as the next discrete ground of appeal.

3. The admissibility of Sauvé’s manslaughter conviction

[94] One of the most damaging aspects of the “investigative hearsay” the Crown led on the re-examination of Lamarche was evidence that Sauvé had a prior conviction for manslaughter. Lamarche testified that Sauvé had brutally killed a cab driver with a gun, had been charged with murder but convicted of manslaughter, and that he was on parole for that offence at the time of the Giroux and Bourdeau murders.

[95] A central feature of the defence was that Gaudreault had used information obtained from other sources to fabricate his evidence. Gaudreault did not name Sauvé as a participant until Lamarche told him in a telephone conversation in May 1990 that she had information from the RCMP that an informant had identified Sauvé as the shooter and had also warned Gaudreault that as a witness in the case he was at risk. Gaudreault immediately added Sauvé to the list of those he said were involved in the murders.

[96] Counsel for Stewart challenged Lamarche on cross-examination as to why she had risked tainting Gaudreault’s evidence by giving him Sauvé’s name as a likely participant. Counsel for Stewart sought to use the fact that Gaudreault only identified Sauvé as a participant after Lamarche had told him she suspected that Sauvé was involved as further indication that Gaudreault’s story was based on information he had gleaned from other sources. Counsel did not impugn the basis for Lamarche’s belief that Sauvé was a participant but attacked her methodology in revealing her suspicion to Gaudreault and thereby providing him with a further detail he could use to bolster his story.

[97] The trial judge ruled that the Crown should be permitted to lead evidence in re-examination of Sauvé’s manslaughter conviction on the basis that the evidence was “probative of Detective Lamarche’s state of mind, and why she told Gaudreault of his need to be careful as a witness in these proceedings, and why she thought the RCMP informant would name Sauvé as the shooter.” The trial judge recognized the potential prejudice of the jury improperly using the conviction as propensity reasoning as to Sauvé’s involvement and then finding the appellants guilty by association. He ruled, however, that “the introduction of Sauvé’s record … by Detective Lamarche is more probative for her investigative state of mind at the time of the important phone call of May 9, 1990 than it is prejudicial to these accused” and that a limiting instruction could alleviate any prejudice.

[98] In our view, the trial judge erred in permitting the Crown to lead the evidence of Sauvé’s manslaughter conviction. This evidence was not relevant to or probative of the issue the defence had raised on cross-examination as to the investigative method used by Lamarche in relation to Gaudreault. That attack did not put in issue the reasonableness of Lamarche’s belief that Sauvé was involved in the murders. As this court held in R. v. Dhillon, supra, the Crown is entitled to lead evidence as to the investigation of the accused, but only where the evidence is relevant to and probative of the adequacy of the investigation. The reasonableness of Lamarche’s belief that Sauvé was the shooter had nothing to do with the point upon which the investigation was attacked, namely, that she had tainted the reliability of Gaudreault’s story by feeding him an important fact that he did not come up with on his own.

[99] The trial judge gave a mid-trial limiting instruction that the evidence led on Lamarche’s re-examination was not led for the truth of its contents but only as evidence of her state of mind which the jury could consider when assessing whether her conduct of the investigation was reasonable. The trial judge, however, did not warn the jury against using the conviction as evidence of propensity nor did he provide any instruction in relation to the Sauvé conviction in his final instructions to the jury.

[100] The risk that evidence of the conviction might have been improperly used by the jury was significantly enhanced by the Crown’s closing address. The Crown argued that Sauvé “was brought along on that day to do the killing because [he] had the particular skill set that the job required.” She told the jury that the car used on the night of the murders “could be traced back to the parolee James Sauvé”; she referred to Sauvé’s “prior experience” and stated “the ideal place to go with James Sauvé is to an execution.” Sauvé was labelled a “mad dog”, “a wacko and a dangerous guy, a killer in fact”. We can only read these comments in the Crown’s closing address as referring to Sauvé’s record as a convicted killer and as inviting the jury to engage in impermissible propensity reasoning. In our view, the trial judge erred by failing to provide any corrective or limiting instruction.

[101] The Crown submits that there is no categorical exclusion of propensity evidence and cites the permitted use of such evidence to support certain defences. The Crown argues that as the propensity evidence relates to Sauvé, not the appellants, it was properly admitted. We disagree for the following reasons.

[102] First, the trial judge did not make a finding that the evidence was admissible on that basis and indeed seems to have assumed that it could not be used for that purpose. Moreover, the Crown did not advance this argument when seeking to have this evidence admitted at trial.

[103] Second, we agree with the appellants that Gaudreault’s evidence and the Crown’s theory had an “all or nothing” quality and that there was a serious risk that the jury could use the evidence of Sauvé’s propensity for homicidal violence as support for Gaudreault’s evidence and thereby implicate the appellants. Sauvé’s manslaughter conviction was also admitted by the trial judge in R. v. Sauvé and Trudel, supra. This court found that the trial judge had erred in that case by admitting evidence of Sauvé’s conviction. While the evidence was tendered on a different basis in that case, this court’s assessment that it was “extremely prejudicial” is apposite here given the Crown’s theory. If the Crown could not use this evidence directly against Sauvé to show he did the killing, we fail to see how the Crown should be able to use the same evidence to convict the appellants by indirectly implicating Sauvé. On the Crown’s theory, this was a common enterprise with a common purpose and the Crown’s case for Mallory and Stewart was proved essentially by the same evidence. The evidence could not be used against Sauvé and Trudel and it should not have been used against the appellants.

[104] We conclude that the trial judge erred by permitting the Crown to lead evidence of Sauvé’s manslaughter conviction. Even if, contrary to our analysis, that evidence was admissible for the limited purpose of assessing Lamarche’s state of mind when conducting the investigation, the trial judge failed to give the jury an adequate instruction to that effect. Such an instruction was required, especially after Crown counsel transparently invited the jury to engage in propensity reasoning in her closing address.

[105] Accordingly, we would give effect to this ground of appeal.

4. The limitation imposed by the trial judge on the cross-examination of Gaudreault relating to the newspaper articles

[106] The appellants submit that the trial judge erred by limiting the cross-examination of Gaudreault on the newspaper articles that the appellants contend served as the source for his story to the police and for his testimony at trial.

[107] The trial judge ruled that counsel for Stewart could ask Gaudreault whether he had based his information upon newspaper accounts and, if he answered affirmatively, show him the articles allegedly used as the source. However, if Gaudreault denied reading any articles and denied that they were his source, the trial judge ruled that counsel was not entitled to confront Gaudreault with a series of articles that he said he had never seen.

[108] Gaudreault denied basing his story on newspaper articles and flatly denied that he had read any articles concerning the case other than the one he claimed Stewart had brandished when he came to Gaudreault’s house shortly after the murders. At trial, he was shown one article and denied having read it or any others. As a result of the trial judge’s ruling and Gaudreault’s denial, counsel for Stewart was precluded from her intended course of confronting Gaudreault with all the various accounts of the case that appeared in the press and that the defence asserted had supplied Gaudreault with his information.

[109] Later in the trial, the defence adduced the articles in evidence and, on the basis of the contents of those articles, the defence submitted to the jury that the articles contained almost all of the information Gaudreault needed to concoct his story.

[110] It certainly would have been possible – and perhaps even preferable – to have afforded counsel a bit more latitude given the importance of this issue to the defence. Although Gaudreault denied reading the articles, there was something to be said for allowing the defence to confront him with more than just one of the articles to test his story and to allow the jury to assess his response to the defence’s contention. However, the articles in question were later admitted in evidence and the defence was able to compare Gaudreault’s story with the articles and to make the argument that he had used them as his source. We are not persuaded that the appellants suffered any material prejudice as a result of the trial judge’s ruling.

[111] A trial judge does have discretion to curtail a prolonged and repetitive cross-examination that will only produce a string of repeated denials: see R. v. Proverbs (1983), 1983 3547 (ON CA), 9 C.C.C. (3d) 249 at 262 (Ont. C.A.); R. v. McIntosh (1999), 1999 1403 (ON CA), 141 C.C.C. (3d) 97 at paras. 80-84 (Ont. C.A.); R. v. Dunn (1993), 1993 8547 (ON CA), 82 C.C.C. (3d) 1 (Ont. C.A.). In our view, while it would have been preferable to have given defence counsel more latitude, the trial judge did not exceed the limits of his discretion by limiting what was bound to be a repetitive and unproductive cross-examination on newspaper articles Gaudreault insisted he had never seen.

[112] Accordingly, we would not give effect to this ground of appeal.

5. The admissibility of certain statements made by Mallory upon his arrest

[113] Mallory was arrested for the two murders at a residence in Ottawa on December 21, 1990 by Ottawa Police Officers Ian Davidson and Karl Erfle. Davidson had once worked a beat in the same area where Mallory was employed as a bouncer and the two men recognized each other immediately. After Davidson cautioned Mallory and advised him of his s. 10(b) Charter rights, Mallory indicated he did not wish to contact counsel at that time but would do so at the police station if Davidson would tell him how he could reach a lawyer.

[114] En route to the police station, Davidson began a conversation with Mallory about Mallory’s interest in arm wrestling. Davidson then asked Mallory if he knew what the arrest was all about. Mallory replied that he had read about the murder of a man and woman in the newspaper, and that he had never heard of “these people.” Davidson asked if Mallory had seen the names of the other people arrested. Mallory replied that he had, but added that he did not know any of them. After a pause, he said he just saw his name in the newspaper.

[115] Within minutes of his arrival at the police station, Mallory was taken to a private room and given an opportunity to contact counsel. Once he had spoken to a lawyer, Mallory was taken to an interview room where he again advised Davidson that he had read about the reason for his arrest and seen a picture of the man and the woman who were killed in the newspaper.

[116] Mallory’s statements made en route to the police station were significant because of his claim that he did not know the other individuals who had been arrested in connection with the murders. In a ruling concerning the admissibility of these statements, the trial judge found that at the time of Mallory’s arrest, Davidson knew very little about the case beyond the existence of a Canada-wide warrant and that his questions “were in the vein of ‘what’s this all about.’” The trial judge described Mallory and Davidson as “acquaintances of some years standing” and said he was “unable to characterize Sgt. Davidson’s quasi-bantering conversation with Mr. Mallory as a ‘wilful and deliberate’ or ‘open and flagrant disregard’ of his constitutional rights”.

[117] Nevertheless, given that Mallory had expressed a desire to contact counsel, the trial judge held that Davidson violated Mallory’s s. 10(b) Charter rights by failing to hold off in questioning him during the 12 minutes it took to transport him to the police station. The trial judge noted that a call to counsel could not have been made in privacy at the residence and “wait[ing] 12 minutes until the privacy of an interview room … was available was the way to allow Mr. Mallory to ‘retain and instruct counsel without delay.’” The trial judge also said: “[I]t is apparent that Sgt. Davidson felt he had the right to continue to question an accused once he had given the right to counsel and the right to silence.”

[118] The trial judge went on to find that Mallory’s statements should not be excluded under s. 24(2) of the Charter. In doing so, he classified the evidence of the statements as non-conscriptive and said he was unable to see how its admission would affect the fairness of the trial. He said there was no air of trickery on the part of the officers, that Mallory had a choice to remain silent but chose to speak, and that the interference with Mallory’s constitutional rights was minimal. The trial judge concluded that “refusal to admit this evidence would bring the administration of justice into greater disrepute than its admission, particularly since the officers’ actions were completely non-compulsive.”

[119] The appellants submit that the trial judge erred in law in his analysis of this issue in two respects and that several of his findings of fact are flawed as a result.

[120] First, the appellants submit that in holding that Mallory chose to speak to the police at a time when he had not had the opportunity of consulting with counsel, the trial judge misconstrued Mallory’s conduct as amounting to a waiver of the right to silence. This, in turn, led the trial judge to misunderstand the scope of the Charter violation.

[121] Second, the appellants say that the trial judge erred in finding that Mallory’s post-arrest statements were non-conscriptive. While acknowledging that in the light of R. v. Elias; R. v. Orbanski (2005), 2005 SCC 37, 196 C.C.C. (3d) 481 (S.C.C.) and R. v. Grant (2006), 2006 18347 (ON CA), 209 C.C.C. (3d) 250 (Ont. C.A.), a finding that the statements were conscriptive would not lead automatically to their exclusion, the appellants submit that the trial judge’s erroneous finding tainted much of his s. 24(2) Charter analysis.

[122] On appeal, the Crown concedes that Mallory’s s. 10(b) Charter rights were violated, that the trial judge erred in holding that Mallory’s statements were non-conscriptive, and that the trial judge’s conclusion on this issue attracts no deference as a result. However, the Crown argues that the trial judge’s findings indicating that the s. 10(b) Charter breach was of a minor and technical nature remain important and that, based on those findings, his conclusion that the statements should be admitted is correct. In the alternative, the Crown argues that the admission of this evidence occasioned no substantial wrong or miscarriage of justice.

[123] We agree with the submissions of both parties that based on the record before him, the trial judge was correct in holding that Mallory’s s. 10(b) Charter rights were violated but that he erred in finding that Mallory’s statements were non-conscriptive. In particular, since Mallory’s statements were the product of questions from a police officer rather than being spontaneous, it is clear that they amounted to conscriptive evidence. However, as we have decided that it is necessary that we order a new trial based on our conclusions on other grounds of appeal, in our view, the issue of a fresh s. 24(2) Charter analysis is best left to be assessed based on the record at the new trial.

6. The admissibility of reply evidence regarding Stewart’s alleged “no guns” policy

[124] During Mallory’s cross-examination, the trial judge reversed a prior ruling in which he had edited a Crown surveillance videotape by deleting those portions in which Stewart talked about his six-year-old son firing machine guns and purchasing gun magazines. Based on the revised ruling, the Crown cross-examined Mallory on the contents of the videotape and a surveillance audiotape containing similar material.

[125] After Mallory completed his evidence, the trial judge permitted the Crown to recall Detective Inspector Glenn Miller to give reply evidence in three areas: i) to authenticate the content of the surveillance videotape and audiotape; ii) to indicate that Stewart did not limit the information about his guns that he shared with Miller while Miller was operating undercover as a drug purchaser on “a need-to-know basis”; and iii) to provide opinion evidence concerning the likelihood that a drug organization such as Stewart’s would have a “no guns” policy.

[126] The appellants submit that the trial judge erred in reversing his prior ruling and in permitting Miller’s reply evidence. We do not accept these submissions.

[127] As part of its case, the Crown called Miller to testify concerning his experiences in infiltrating the Stewart drug organization between July and December 1990. In addition to giving evidence of his observations, Miller was qualified to give expert evidence concerning importing and trafficking hashish and cocaine and concerning the security measures and operations of a drug organization carrying on these activities. In his evidence, Miller referred to conversations he had with Stewart about security and the use of guns within the drug organization.

[128] For example, Miller testified that Stewart spoke about the practice of having packers (armed guards) accompany couriers delivering larger quantities of drugs. In addition, Miller referred to a specific conversation in which Gaudreault and Stewart discussed a .223 gun Stewart had, the capacity of the bullets from that gun to penetrate a vest, alterations to the gun permitting it to operate as a machine gun and the fact that someone had a number of guns in a well. Finally, Miller said that Stewart spoke of having an explosive device and about an occasion on which he picked up 65 sticks of dynamite.

[129] In addition to Miller’s evidence, as part of its case, the Crown tendered wiretap evidence and surreptitiously-obtained audiotape and videotape evidence relating to the Stewart drug organization. Following Miller’s evidence, the trial judge made a ruling editing a videotape of a meeting held on October 16, 1990 between Miller, Stewart and Gaudreault. Conversation at the meeting included discussions about the use of guns. The trial judge excluded Stewart’s references to his six-year-old son firing machine guns and purchasing gun magazines, holding that such evidence was more prejudicial than probative.

[130] As a result of the trial judge’s ruling, the Crown did not tender as part of its case the October 16, 1990 videotape or an audiotape of a December 6, 1990 meeting that included similar discussions.

[131] During Mallory’s cross-examination, the Crown asked the trial judge to make a finding that Mallory put his character in issue by giving evidence to the effect that, with Stewart, his role as a debt collector did not extend to breaking limbs and that it never involved weapons. The trial judge held that Mallory had not put his character in issue through this evidence. In the course of his ruling, he characterized Mallory’s evidence as saying that “guns were not a policy option available to Mr. Mallory.”

[132] Later in Mallory’s cross-examination, the Crown asked the trial judge to revisit his ruling editing the videotape of the October 16, 1990 meeting based on what the Crown described as a “changed landscape”, namely that it was misleading for Mallory to be testifying that guns were “not Stewart’s way”. In making this request, the Crown relied on an extract of Mallory’s examination-in-chief, in which Mallory said Stewart would never let him have a gun because “that wasn’t his way”. The Crown characterized this evidence as describing a “no guns” policy within the organization.

[133] However, the Crown also relied more generally on the fact that Mallory essentially disavowed hearing Stewart speak about guns, claiming that he received information about the organization on “a need-to-know basis.” While some such testimony had arisen in examination-in-chief (e.g. Mallory testified in-chief that the only gun he remembered hearing about was a .223, but that at the time he did not know what a .223 was), the Crown also relied on Mallory’s cross-examination.

[134] For example, in cross-examination, Mallory claimed that, other than “hearing about a .223 or something”, he never heard Stewart brag about any weapons. In contrast to Declare’s evidence, he said he had never heard Stewart refer to guns as toys and he agreed with a suggestion that that was because Stewart did not have any guns.

[135] When Miller’s evidence of what he heard about Stewart’s .223 was put to Mallory, he agreed that Stewart told him he had a .223 and explained that since he had never heard of a car called a .223, it had to be a gun. However, he denied Stewart ever told him that bullets from the gun could penetrate a police vest, that the gun had been altered to be a machine gun, that he [Stewart] had grenades, or that he had about 65 sticks of dynamite. As a general response to his knowledge of these matters, he said: “A need-to-know basis. Why would he mention it to me. I never had a gun”.

[136] In responding to the Crown’s submissions, counsel for both Mallory and Stewart submitted that Mallory’s evidence did not extend to asserting there was a “no guns” policy within the organization. According to them, Mallory was saying no more than that Stewart would not let him have a gun.

[137] Defence counsel also relied on the fact that the October 16, 1990 surveillance videotape included a statement by Stewart that while he wanted Mallory to slap people around he did not want him using a gun because “[t]he day Rick walks in with a gun is the day somebody’s gonna kill him.” Based on this evidence, defence counsel asserted there was nothing inconsistent between the videotape and Mallory’s evidence at trial.

[138] In colloquy, the trial judge stated that his understanding of the Crown’s position was not that there was a contradiction between Stewart’s statement on the video that Mallory should not use a gun and Mallory’s evidence at trial, but rather “that the policy, no matter when enunciated, was always nonsense, never was valid … and [was] totally unrelated to reality, no matter what they told Miller”.

[139] Further, in reasons for reversing his prior ruling relating to the surveillance tape, the trial judge said:

Both the lack of guns in Mr. Stewart’s hands or in the hands of surrogates, and the “no guns policy” for Mr. Mallory have emerged as centrepieces of the defences, in effect of both men. The primary reason for now allowing the evidence of Mr. Stewart’s trips to the firing range with his son is to show his interest in guns and the interest and pride he took in his son’s accomplishments at an early age…The evidence merely tends to try to establish that Mr. Mallory’s “no guns policy” as dictated by Mr. Stewart does not emanate from a “hands-off guns” policy adhered to by Mr. Stewart.

[140] As noted, following completion of Mallory’s evidence, the trial judge permitted the Crown to recall Miller to give reply evidence in the three areas we have identified. In doing so, the trial judge expressed an expectation that the re-examination would be focussed and the evidence given in short compass. The reply evidence that was led in-chief spans approximately seven pages of transcript.

[141] The appellants submit that the basis for the trial judge’s decision to reverse his prior ruling concerning the surveillance tapes and to admit Miller’s reply evidence was his conclusion that Mallory testified that Stewart’s drug organization had a “no guns” policy. They say that, contrary to this conclusion, the essence of Mallory’s testimony was that Stewart did not allow him to carry a gun. Moreover, the appellants submit that the position of the Crown that without the benefit of the surveillance tapes and the reply evidence the jury might be left with the impression that the drug organization operated weapons free was unrealistic and untenable. The appellants claim that the prejudice in allowing the further gun evidence far outweighed its probative value. Moreover, they claim that the trial judge’s decision to permit the reply evidence violated the collateral evidence rule and improperly allowed the Crown to split its case.

[142] We do not accept the appellants’ submissions. In our view, in addition to Mallory’s statement in-chief “that wasn’t [Stewart’s] way”, the important features of Mallory’s evidence that led to the trial judge’s rulings permitting cross-examination on the surveillance tape and the reply evidence were Mallory’s disavowal of any knowledge of Stewart’s involvement with guns and his claim that he received information on “a need- to-know” basis. While Mallory may not have testified directly that there was a “no guns” policy within the Stewart drug organization, on the whole of the record before him, it was open to the trial judge to interpret Mallory’s testimony as amounting to evidence that the Stewart drug organization had a “no guns” policy.

[143] In our view, the appellants have not demonstrated any error in the trial judge’s conclusion that “the lack of guns in Mr. Stewart’s hands … and the ‘no guns policy’ for Mr. Mallory ha[d] emerged as centrepieces of the [defence]”. [Emphasis added.] In these circumstances, it was open to the trial judge to reverse his prior ruling relating to cross-examination on the surveillance tape.

[144] Further, while the Crown should have anticipated the possibility that Mallory would testify that Stewart would not permit him to use a gun based on Stewart’s comment to that effect on the surveillance tape, this reference did not raise the possibility that Mallory would make the statement “that wasn’t [Stewart’s] way”, disavow knowledge of Stewart’s involvement with guns, or say that he received information on a “need-to-know” basis. In our view, the trial judge might well have concluded that Miller’s original evidence was sufficient to respond to these claims and we consider that this would have been a preferable result. Nevertheless, given the trial judge’s finding that Mallory’s evidence concerning a “no guns” policy “had emerged as a centrepiece of the defence”, in all of the circumstances, we are not persuaded that the trial judge erred in holding that Mallory’s evidence opened the door to a more direct response through focussed and limited reply evidence.

[145] Neither party made extensive submissions concerning the reply evidence led to authenticate the surveillance videotape and audiotape. It appears that, save for a portion of one of the tapes, the defence offered to admit their authenticity but that issue was never resolved and, in any event, the defence conceded that the Crown was not obliged to accept their admission. In the circumstances, we consider it unnecessary that we formally determine whether this portion of the reply evidence was proper. We would, however, observe that since the audiotape and videotape were played during cross-examination, it was unnecessary that they be replayed in reply.

[146] We would not give effect to this ground of appeal.

7. The admissibility of reply evidence regarding the circumstances of Mallory’s arrest

[147] Counsel for Mallory submits that the trial judge erred by permitting the Crown to lead reply evidence that, contrary to Mallory’s assertion that he was preparing to surrender himself once he learned that he was wanted by the police, he was in fact evading the police at the time of his arrest. Mallory takes particular exception to Davidson’s hearsay evidence given in reply that Mallory had admitted to his girlfriend that he had a role in the murders.

[148] We agree with the submission that on a fair reading of the evidence Mallory had effectively admitted in cross-examination that at the moment of his arrest, he was evading the police “to put his affairs in order”. On the other hand, Mallory did insist that he intended to turn himself in eventually. Arguably, this claim opened the door to reply evidence to show that Mallory never intended to surrender. However, as the Crown led evidence in its own case of the very arrangements Mallory described in his evidence, it is difficult to see how this could be proper reply.

[149] In any event, even if the Crown was entitled to lead reply evidence relating to the circumstances of the arrest, we fail to see any basis for the admission of hearsay evidence to the effect that Mallory had admitted a role in the murders to his girlfriend.

[150] In our view, the trial judge was seriously led astray by the Crown’s insistence that Davidson be permitted to testify that, immediately before the arrest, Donna Delaney told him that she thought Mallory’s only role “was driving the car.” While there was some suggestion that Delaney got that information from a newspaper, there is no doubt that the Crown’s position was that Mallory had told her that he was only the driver.

[151] In cross-examination, Mallory was asked: “… you told Donna Delaney, your girlfriend, that all you did was drive the car, didn’t you?” Mallory denied that he had said anything like that to Donna Delaney. The Crown did not call Donna Delaney to prove this admission as part of its case. The matter should have ended with Mallory’s denial. Simply put, the Crown had not called Donna Delaney, and after Mallory’s denial, the Crown had no admissible evidence of any admission that Mallory had made to her.

[152] We find it difficult to avoid the conclusion that Davidson’s reply evidence was led by the Crown essentially for the purpose of putting gravely prejudicial hearsay evidence before the jury by suggesting that Mallory had admitted involvement with the commission of the murders. The Crown argued that Davidson’s evidence regarding what Delaney said should be admitted as “part of the narrative” of the arrest. The trial judge accepted that submission and ruled that the “words are relevant to a non-hearsay use for the words spoken, what was really happening at the time and what the accused’s real purpose might have been, and Delaney’s role in meeting police at the door of the townhouse, if any.”

[153] In our respectful view, this reasoning is flawed. To use Delaney’s hearsay statement as evidence of “what the accused’s real purpose might have been” is to use it precisely for the forbidden purpose of inferring that the accused had admitted involvement in the crime. The real purpose of leading this evidence was revealed by the Crown’s submission to the trial judge that evidence of what Delaney said to Davidson could support the inference “that Mr. Mallory had a conversation with her in which he admitted a role in this incident.”

[154] The trial judge gave the jury a mid-trial instruction about the use it could make of the Delaney hearsay evidence. He instructed the jury that it could not use it as evidence that Mallory had told Delaney that he was driving the car, that the only evidence on that issue was Mallory’s denial of any admission to Delaney, and that Mallory did not hear Delaney relay an alleged admission to Davidson. The trial judge told the jury that the Delaney hearsay evidence could be used “as to what was happening at the time of the arrest, how the arrest was effected … in the total context of what was happening over the three days when the police were trying to get in touch with Mallory … But it cannot be used to say Mr. Mallory must have told her that he was driving the car”.

[155] While this direction went some way to repair the damage, in the end, we are of the view that this evidence was gravely prejudicial inadmissible hearsay evidence that the jury should never have heard. The Delaney hearsay evidence shed no light on the circumstances of the arrest other than to show that Mallory had admitted to having had some involvement in the crime, and we are not persuaded that the harm done to Mallory was sufficiently relieved by the limiting instruction.

[156] Accordingly, we would give effect to this ground of appeal.

8. A ruling permitting cross-examination of Mallory about evidence he gave at his bail hearing

[157] Mallory gave evidence at trial that contradicted the evidence he gave at his bail hearing, both about his activities as an enforcer and about his relationship with Stewart.

[158] At trial, over the objection of his counsel, the Crown cross-examined Mallory on those contradictions. In that cross-examination, Mallory admitted to lying at his bail hearing. The Crown used these admissions to attack Mallory’s overall credibility.

[159] Mallory argues that s. 518(1)(b) of the Criminal Code prohibited the Crown from cross-examining him “respecting the offence” at his bail hearing and that cross-examination on the answers he gave should therefore have been prohibited at trial. Section 518(1)(b) provides that at a bail hearing:

[T]he accused shall not be examined by the justice or any other person except counsel for the accused respecting the offence with which the accused is charged, and no inquiry shall be made of the accused respecting the offence by way of cross-examination unless the accused has testified respecting that offence … [Emphasis added.]

[160] Accordingly, the first issue is whether the Crown examined Mallory at his bail hearing “respecting the offence”. If so, the second issue is whether Mallory opened the door to such questioning by giving evidence respecting the offence in his examination-in-chief.

[161] At the bail hearing, the Crown opposed Mallory’s release on two grounds. First, the Crown was concerned that Mallory, who it alleged worked as Stewart’s enforcer, would intimidate and interfere with witnesses on the murder charges. Second, the Crown was concerned about Mallory’s potential to re-offend.

[162] In support of its position, the Crown called a police officer who testified that it was the police theory that Mallory was involved in the murders on Stewart’s instructions. That officer testified that he had information that Mallory worked for Stewart as his enforcer and about various incidents of witness intimidation in which Mallory was involved. The officer testified specifically about threats to Gaudreault’s sister, brother-in-law, spouse, and to the individual who found the victims’ bodies, all of whom were potential witnesses regarding the murders. In addition, the officer testified about information that Mallory enforced debts unrelated to the murders by intimidating debtors, including, for example, an occasion when Mallory attended in Toronto to collect a $20,000 debt from a man named Ivan Integra.

[163] At his bail hearing, in-chief, Mallory professed his innocence of the murders. He stated that, if released, he would find a place to live with the assistance of Stewart and Stewart’s father. He said he would support himself on welfare, but he anticipated that he would quickly obtain employment because “I’m well known among the hotels because I was a bouncer for quite a few years.” This exchange was followed by questions put to him by his counsel with these responses:

Q. I take it, Mr. Mallory, you’re aware of the concerns the Crown has were you to be released?

A. Yes, I do.

Q. And that one of the concerns would be that you would interfere with witnesses, intimidate witnesses.

A. Well, I don’t think there’s any fear of that actually. Witnesses, as far as I’m concerned, intimidate them-selves because I am not guilty of this charge and me, I would rather have them up here testifying against me like they are because I know they are lying.

Q. Okay. And what about the other concern is that you might commit other offences?

A. Well, I don’t think so anymore. My criminal record speaks for itself. I’ve done some pretty bad things and I think it’s time to live my life and get it going, you know. I’m 50 years old, I figure I’ve still got another 30 years anyway.

Q. And what about there’s some indication that you were working for or under the control somehow of Mr. Stewart, and the obvious concern of the Crown is that you’re going to be out there trying to help Mr. Stewart. How do you respond to that?

A. I have nobody to help out there but myself, I got things I got to do for myself, like I got to get my life back together. This charge here is like a wake-up call, you know. I’ve read about this in books where people are on trial for something they did not do and, you know, every other charge I’ve done I pled guilty to, I’ve done it, I’ve admitted to it, and me I feel like this is a wake-up call, I never believed this could happen to me.

Q. Okay. And you’re also aware that Mr. Doug Stewart is prepared to sign as a surety for you?

A. Yes I am.

Q. Okay. And do you know Mr. Stewart?

A. I’ve known Mr. Stewart for as long as I’ve known Rob.

[164] In cross-examination, the Crown began by asking Mallory whether the admissions obtained by the police from his co-accused were all lies. On the basis of s. 518(1)(b), the defence objected. The Crown responded that Mallory had “opened the door” by professing his innocence. The bail judge ruled that Mallory’s profession of innocence was no more than an affirmation of his not guilty plea and that it did not permit the Crown to question him respecting the offence.

[165] The Crown then asked Mallory if he was involved in collecting drug debts for Stewart. The defence again objected. The Crown gave his assurance that he would stay away from asking about the murders, but sought to cross-examine Mallory about earlier acts of intimidation in the course of his employment for Stewart. The bail judge permitted this line of questioning.

[166] While Mallory acknowledged his role as an enforcer for Stewart, he minimized the extent of his involvement by saying he had only done a few collections for minimal amounts of debt, which were incurred for reasons to which he was not privy. On other questions, such as those about the Toronto trip involving Integra, he testified that his memory was impaired by the large amount of cocaine he took at the time.

[167] At trial, Mallory openly acknowledged his role as an enforcer for Stewart and that as an enforcer he threatened and intimidated people to collect drug debts for large amounts of money. He also remembered the Toronto enforcement trip.

[168] Mallory’s trial counsel objected to the Crown cross-examining Mallory about his contradictory evidence, based on s. 518(1)(b). The trial judge ruled:

I am not satisfied that the section was violated by the court in the bail hearing. The influence question was somewhat linked to what his job was in relation to Stewart before any of these events happened and it seems to me that is all relevant to that issue.

[169] When the trial judge allowed the Crown to continue with this line of questioning, Mallory acknowledged he had lied repeatedly during his bail evidence, but minimized it as “a little white lie” told in the hopes of securing his interim release. He attributed some of his lack of truthfulness to “a mistake … a failed recollection”. The Crown then read in large portions of the bail transcript.

[170] In her address to the jury, the trial Crown emphasized, because Mallory “committed perjury” at the bail hearing, that his trial testimony should not be believed:

To be clear, the Crown’s position is that Mr. Mallory didn’t take the stand just to lie for Stewart, just to protect his boss or just to put his boss back on the street. He lied in order to get away with murder himself. He committed perjury on two different occasions but for a similar purpose at his bail hearings – to get himself out of jail, he said so, he admitted that. He wasn’t testifying at somebody else’s bail hearings, he wasn’t trying to—he wasn’t perjuring himself in order to get Stewart out of jail at his bail hearings, he didn’t lie to protect Stewart then, his perjuries were totally self-serving at his bail hearings, and those earlier perjuries were committed, as he told you, so that he could buy himself temporary freedom of release before trial. Five years in custody awaiting trial he felt were too much and it was clear that he felt entitled almost to lie to get out or to try to get out at his bail hearings … If five years of waiting for trial were enough reason to lie, well the desire to stop at this point must be double the reason.

[171] Before this court, Mallory did not seek to revisit the ruling of the bail judge, but argued that the evidence from the bail hearing should have been excluded from the trial as a violation of s. 518(1)(b). Mallory did not pursue an argument based on s. 13 of the Charter because that issue has been determined by the Supreme Court of Canada in R. v. Henry (2005), 2005 SCC 76, 202 C.C.C. (3d) 449 (S.C.C.). Although Mallory’s counsel relied upon s. 7 of the Charter, it was its position that s. 518(1)(b) provides greater protection to an accused than would s. 7. Accordingly, the success of the argument depends on whether s. 518(1)(b) was transgressed.

[172] In essence, Mallory’s counsel argued that evidence about Mallory’s work for Stewart as an enforcer, the amount of money he collected, and his trip to Toronto were all central to the Crown’s theory that he was a drug enforcer for Stewart and participated in the murders in that capacity. It follows, Mallory’s counsel submits, that questions about his enforcement activities fall squarely within the scope of questions “respecting the offence” and that the trial judge erred in his decision to permit the cross-examination.

[173] The Crown submits that s. 518(1)(b) was not violated because Mallory was not questioned with respect to the offence for which he was charged, only about his history of intimidating debtors and witnesses. The Crown further argues to the extent the bail Crown did question Mallory about his relationship with Stewart and his enforcement activities, that evidence was first elicited by his own counsel.

[174] Where an accused testifies at his bail hearing, he generally may be questioned with respect to the issues as defined by s. 515(10) of the Criminal Code. In this case, the Crown placed specific reliance on the secondary grounds set out in s. 515(10)(b), that Mallory’s detention was “necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice”.

[175] Even if inquiries are relevant under s. 515(10), s. 518(1)(b) prohibits questions of the accused “respecting the offence”. The purpose of the prohibition is to provide the accused with protection against self-incrimination. Where the prohibition is transgressed, the resulting testimony cannot be used to cross-examine the accused at trial: see Re Deom et al. and The Queen (1981), 1981 383 (BC SC), 64 C.C.C. (2d) 222 (B.C.S.C.); R. v. Paonessa and Paquette (1982), 1982 66 (ON CA), 66 C.C.C. (2d) 300 (Ont. C.A.), aff’d (1983), 1983 3477 (SCC), 3 C.C.C. (3d) 384 (S.C.C.).

[176] In Re Deom, supra, the bail judge questioned the fifty-three accused about the offences with which they were charged, asking essentially whether they were present and involved. Similarly, in R. v. Paonessa and Paquette, supra, the accused, who was charged with arson at a billiard hall, was questioned by his own counsel about whether he was present at the billiard hall at the time of the incident and whether he brought a container of gasoline to the site. In both cases, the accuseds’ admissions, which had a direct bearing on their guilt for the offences charged, were held to be impermissible and inadmissible at trial. The factual circumstances of these cases are not found here.

[177] Here, the bail judge was alive to the issue and ruled specifically that “cross-examination of the accused ought not to be allowed as it relates to the offence itself”. Thereafter, the Crown restricted its questions at the bail hearing to Mallory’s enforcement activities that were unrelated to the murders.

[178] In our view, Mallory raised the issue of his pre-charge employment in examination-in-chief, thereby opening the door to the questions in his cross-examination. When considered in context, his answers to the questions asked by his counsel were to the effect that, if released, he anticipated employment in his previous law abiding occupation as a bouncer.

[179] Moreover, Mallory’s own counsel questioned Mallory about his potential to intimidate witnesses. In response, Mallory said that “there should be no fear of that actually” because “witnesses intimidate themselves”. Implicit in this response is a denial of any role as an intimidator.

[180] In addition, Mallory denied any likelihood that if released he would commit further offences when he said he intended to leave behind his criminal ways. By these responses, Mallory left himself open to cross-examination both about his livelihood and his history as an enforcer, provided the questions did not extend to questions about the murders. We believe they did not for four reasons.

[181] First, the questions related solely to Mallory’s earlier enforcement work for Stewart and he was not asked about any enforcement activities even remotely related to the murders.

[182] Second, the questions, which were relevant to the Crown’s s. 515(10) concern that Mallory’s release would provide him with the opportunity to intimidate potential witnesses, were not posed for any oblique or impermissible purpose. They had no self-incrimination component to them and nor was any incriminating evidence relevant to the murders elicited, even incidentally.

[183] Third, the Crown retreated from any questions about Mallory’s intimidation of persons relevant to the murders, such as the Gravelles, and specifically restricted his questions to Mallory’s unrelated enforcement activities, such as against Integra.

[184] Fourth, there was an important difference between Mallory’s professed role as an enforcer and the charges of murder. They were not one and the same. This is evident from Mallory’s own evidence at trial where he readily acknowledged his enforcer role but denied that he resorted to routine physical violence or to the use of guns. This portrayal of his role as a gentle enforcer is in sharp contrast to the charges at issue of the deliberate shooting and killing of two people.

[185] For these reasons, we conclude that the trial judge did not err in allowing the trial Crown to cross-examine Mallory about his bail testimony on the issue of his credibility. Accordingly, we would not give effect to this ground of appeal.

9. A ruling editing transcripts of statements made by Stewart to Smallwood, a jailhouse informant, to exclude Stewart’s exculpatory statements

[186] John Smallwood testified that in taped conversations, Stewart admitted to knowledge of the victims and to the murders. These admissions, if believed, were damning. However, the defence challenged the reliability of the admissions and argued that Stewart’s utterances did not amount to an admission that he knew the victims and that the alleged admission of the murders was nothing more than a sarcastic comment by Stewart, as evidenced by his repeated denials of guilt elsewhere on the tape. The trial judge admitted portions of the statements that were inculpatory but excluded other portions that were exculpatory.

[187] Smallwood, who had a lengthy record for fraud-related crimes and was awaiting extradition to the United States, was incarcerated on the same range as Stewart during Stewart’s trial. After he befriended Stewart, Smallwood approached the correctional authorities offering information concerning the murders. The authorities wired Smallwood with a device that would record for seven and a half hours.

[188] The resulting recording was of very poor quality. Much of it was inaudible. Since the Crown and defence were unable to agree on its contents, each produced their own transcript. The trial judge edited out irrelevancies with the consent of counsel, including irrelevant conversations with other inmates. In the end, only two segments of the tape, totalling about twenty-five minutes, involved discussions between Smallwood, Stewart, and other inmates.

[189] Smallwood testified that he interpreted Stewart’s statements as admissions that Stewart knew the victims and was involved in their murders. He testified that Stewart’s statement, “That’s why I had to execute a quarter gram drug dealer”, was given in the context of a response to newspaper clippings Stewart had shown to Smallwood, including a clipping about a drug dealer wanting to make an example of a “deadbeat”.

[190] The trial judge admitted that statement together with the conversation that immediately followed, where Smallwood responded: “Man oh man oh man oh man. Yeah that’s right, fourteen hundred kilos of cocaine, you had to execute a quarter gram dealer. Just good business,” followed by laughter. A couple of lines later another participant in the conversation says to Stewart: “you’re not being serious with me”.

[191] The defence position was that the alleged admission was no more than a sarcastic retort, by which Stewart meant only that it made no sense for a large-scale drug dealer like himself to become involved in the murder of a small time drug dealer. This position was based in part on an earlier discussion on the edited tape where Stewart said:

But it doesn’t make any sense (inaudible) have to put me in here. Well where the fuck do they want me? Either I’m the largest [drug dealer] in the city or I mean I’m down and selling ¼ grams. Even the narc said, the narc (inaudible) about a week telling them about how big a drug dealer I was (inaudible) in court (inaudible) but these people were not in the same league (inaudible) for the whole week.

The Crown argued that this segment of the recording reflected an admission that Stewart knew the victims.

[192] In other segments of the tape that the trial judge ruled inadmissible, Stewart spoke about his eight and a half years in jail, saying that if “we’d say we did it, we would’ve been out last year, but we’re refusing.” This utterance referred to a possible plea bargain offered by the Crown and rejected by the defence. Later in the recording, again in reference to the offered plea bargain, Stewart says, “I said I didn’t do it, I’m not … and she [Stewart’s lawyer] said good, then we’ll fight it.”

[193] The trial judge also ruled inadmissible segments of the recording where Stewart referred to specific wrongful convictions in the Canadian justice system and referred to his trial as a “runaway” trial. On this inadmissible segment, Stewart also said, “[t]he whole thing is I’m a bad guy (inaudible) they’ll come in and, convict me of the murders (inaudible) and it wasn’t me (inaudible) justice.” Later in the recording, Stewart said, “It’ll be nine years by the time we’re through, but we’re not guilty and we’re gonna have a trial and we’ll be found not guilty. That’s it.” This too was excluded.

[194] All these exculpatory utterances were uttered within minutes, and sometimes within seconds, of the inculpatory utterances that the trial judge ruled to be admissible.

[195] During cross-examination, Smallwood testified that he never heard Stewart deny the murders. In view of this testimony, Mallory’s counsel asked the trial judge to reconsider his earlier ruling and to permit cross-examination of Smallwood on Stewart’s denials of guilt. The trial judge refused on the basis that Smallwood may have understood that Stewart did not “point blank” deny the offence. Although the trial judge refused to revisit his earlier ruling, he allowed the defence to ask Smallwood whether Stewart had ever said “he’s not guilty of the offence”.

[196] In response to that question, Smallwood testified that he had heard Stewart deny any involvement, but he could not recall if he did so during the recording. The defence sought the opportunity to refresh Smallwood’s memory by reference to the recording. The trial judge denied the request. Mallory’s counsel stated that he was unable to continue with the cross-examination in light of that ruling.

[197] The defence called another inmate who was present during the recording, Andrews. Andrews testified that Stewart uttered the words in the recording, but maintained that Stewart was being sarcastic in the “confession”.

[198] On the voir dire to admit the tapes, the Crown took the position that the exculpatory utterances were inadmissible as self-serving or prior consistent statements. Stewart’s counsel did not directly refer to the “whole statement” rule, although she did make reference to the admission of the entire statement. Stewart’s counsel submitted that the requested exculpatory utterances were necessary to provide the context of Stewart’s state of mind at the time he made the inculpatory utterance. She submitted that his utterances of innocence put the inculpatory utterance in context, showing it to be no more than a sarcastic comment.

[199] In his first ruling, the trial judge relied on the general principle that “out of court statements by an accused ‘are receivable in evidence against him but not for him.’” He held that he was unable to conclude that a state of mind exception was available to the defence because there is “nothing in the maintenance of innocence in itself that gives any indication that confession is coming.” The trial judge concluded:

[P]rior talk of innocence does not render confession any less likely, and is not circumstantial evidence showing confession to be less likely. A fortiori, then if a jury cannot consider the talk of innocence for its truth of what possible use is it to tell them that the words were spoken since they are not relevant to state of mind? Confession replaces innocence with a new reality. It is Mr. Stewart who can fill in the transition by saying it happened or it didn’t happen. Mr. Smallwood is the rapporteur of the words. Mr. Stewart is the source of the meaning.

[200] Although defence counsel did not raise the “whole statement” principle before the initial ruling, she did so later when she asked the trial judge to revisit the matter during Smallwood’s cross-examination. At that point, the trial judge ruled that he had considered that principle, but that he did not see a contextual link between the exculpatory and inculpatory statements.

[201] The Crown’s address and the trial judge’s charge gave added emphasis to the inculpatory utterances. The Crown argued before the jury that while Smallwood’s background may have made his evidence “problematic”, the fact that the statements were recorded made the “confession accompanied by an explanation [statements] that you can rely on.” The Crown also argued that the jury could rely on Smallwood’s evidence because he put himself at considerable risk to tape Stewart. In total, the Crown spent fifteen pages of transcript addressing the jury on the issue of Stewart’s “confession”.

[202] In his charge, the trial judge reviewed Stewart’s inculpatory statements. Contrary to the evidence, he noted that Smallwood testified that “Rob Stewart never told him that he had not killed ‘these people’”. On the other hand, counsel for Stewart explained her lack of emphasis on Andrews’s testimony about the sarcastic tone of the “confession” by saying to the trial judge: “I didn’t think anyone would really believe Smallwood.”

[203] In our view, the trial judge erred in approaching the utterances as a series of separate statements rather than as one statement. It is well accepted that if the Crown tenders the statement of an accused, it cannot pick and choose those parts of the statement that it would like the jury to hear; it must take “the good with the bad”, and both the “good” and the “bad” are admitted for their truth, for and against the accused. Moreover, a party wishing to adduce a statement must put in as much of the statement as is necessary to permit a fair understanding of the individual utterances.

[204] The principle and its purpose were reviewed by the Appellate Division of the Supreme Court of Alberta in R. v. Girvin (1916), 1916 669 (AB SCAD), 27 C.C.C. 265 at 271-72 (Alta. S.C.):

When the Crown, or a party wishes to use as evidence a confession or admission, the Crown or the party must ordinarily prove the confession or admission in its entirety, that is, with what is favourable as well as with what is unfavourable to the accused or the opposite party and when there is not this strict obligation or when it is not fulfilled the accused or the opposite party has a right to put in the favourable portion which has been omitted; and the favourable portion is evidence for the accused or the opposite party, equally with the unfavourable portion, at least in this sense, that it must be taken as interpreting the unfavourable part, which cannot be given a meaning as it stood by itself but only as modified by the favourable part.

So that not only is a prisoner entitled as of right to have a statement made by him considered in its entirety and in the absence of evidence of the falsity of any exculpatory portion, to have that exculpatory portion accepted as true; but, as another aspect of the same thing, he is entitled as of right to have such a statement considered in its entirety so that the true meaning of his statement may be made manifest for it is but in accordance with the plain dictates of justice and common sense that his statement, if used against him, shall be used only in the true sense in which he made it.

And not only is he so entitled, but, in order that the true sense of his statement may be ascertained, he is entitled to shew the facts and circumstances surrounding the making of it to the like extent that in the case of a contract he is entitled to shew them in order to assist in its interpretation.

[205] This court spoke about the entire statement rule in R. v. Belanger (1975), 1975 1267 (ON CA), 24 C.C.C. (2d) 10 at 15 (C.A.):

We are all of the view that the prosecution having elicited evidence that the appellants refused to go into the line-up, defence counsel was entitled to introduce before the jury, the whole of the utterance that took place in relation to the refusal of the appellant to go in the line-up. In our view the prosecution, having introduced evidence that the accused refused to go in the line-up, it was not entitled to isolate that refusal from the rest of the utterance, in which the accused expressed their reason for refusing to go into the line-up. In MacRae on Evidence, 7 C.E.D. (Ont. 2nd), at p. 275, the author says:

Where A puts in an admission by B and the admission as put in contains no portion favourable to B, B is nevertheless entitled to put in so much of the remainder of the utterance on the same subject as explains the part put in by A, in order to aid in the construction of the utterance as a whole.

See also R. v. Humphrey (2003), 2003 6855 (ON CA), 172 C.C.C. (3d) 332 (Ont. C.A.); R. v. Lynch (1988), 30 O.A.C. 49 (Ont. C.A.); R. v. Black and Mackie, 1965 241 (ON CA), [1966] 3 C.C.C. 187 (Ont. C.A.); R. v. Smith (1986), 1986 7204 (NS CA), 71 N.S.R. (2d) 229 (N.S. C.A.); R. v. Bihun, 1965 788 (MB CA), [1965] 4 C.C.C. 45 (Man. C.A.).

[206] In determining whether statements qualify for separate treatment, factors to consider include the time gap between the utterances, the nature and form of the respective utterances, and the circumstances under which they were made: see R. v. Cybulski (1974), 1974 1642 (MB CA), 19 C.C.C. (2d) 560 (Man. C.A.).

[207] Unfortunately, this issue became confused at trial by counsel’s focus on whether the exculpatory utterances could be admitted as an exception to the rule against prior consistent or self-serving statements on the part of the accused, which are generally inadmissible because they have no probative value. By parsing the recording into separate utterances, the trial judge was distracted from considering whether the “whole statement” should be admitted.

[208] The Crown acknowledges that the trial judge in this case spoke too generally when he said “prior talk of innocence does not render confession any less likely.” The meaning of an exculpatory utterance proximate to an inculpatory utterance is for the jury to determine in the context of the “whole statement”. Giving the jury an isolated utterance taken out of context deprives the jury of the opportunity to decide the true meaning of the whole statement.

[209] This recording was one statement and not a series of statements. In addition to their temporal proximity, the utterances were all made by Stewart to Smallwood and the other inmates present on the range at the detention centre. Most importantly, the exculpatory statements were part of the same conversation as the inculpatory utterances.

[210] Finally, we note that it is no answer to suggest, as did the trial judge, that Stewart could explain his inculpatory utterance in his own testimony. Such a consideration is irrelevant and may unfairly force an accused to testify.

[211] Accordingly, we would give effect to this ground of appeal. At a new trial, it will be for the trial judge to edit the statement to delete irrelevancies.

10. A ruling regarding the scope of Stewart’s cross-examination

[212] Prior to deciding whether Stewart would testify, his trial counsel sought a ruling regarding the scope of the Crown’s proposed cross-examination. The defence sought to prohibit the Crown from cross-examining Stewart on inculpatory out-of-court utterances he purportedly made to certain unsavoury witnesses, including jailhouse informants, whom the Crown chose not to call in its case. The trial judge rejected this request and declined to impose limits on the Crown’s cross-examination. For the following reasons, we accept the appellants’ submission that the trial judge erred in his ruling.

[213] The argument that arose at trial must be put into context. After a lengthy pre-trial abuse of process motion, the trial judge refused to exclude the evidence of jailhouse informants generally. He also did not accede to the defence request for a voir dire to test the evidence of the particular jailhouse informants in this case for two reasons.

[214] The trial judge ruled that the evidence of jailhouse informants is not presumptively unreliable and that the defence did not demonstrate a sufficient factual and legal basis to establish the need for a voir dire in this case: see R. v. Kutynec (1992), 1992 12755 (ON CA), 70 C.C.C. (3d) 289 at 302 (Ont. C.A.). These rulings are not under appeal.

[215] After these rulings, the Crown called two jailhouse informants. It chose not to call many others, including the informants about whom it proposed to cross-examine Stewart. Although we do not have a list of those informants, the defence counsel’s submissions at trial refer to fifteen such individuals, including George Metrakos, Andrew Hayden, Claude Bard, Jack Trudel, Ricky Nelson, Paul Beland, and Kevin Trudeau, all of whom were unsavoury witnesses and three of whom were also jailhouse informants. In addition, both Jack Trudel and Bard had recanted their statements.

[216] The alleged inculpatory admission Stewart made to Metrakos raised a particular concern because the defence at trial questioned the Crown’s good faith basis for using that admission in Stewart’s cross-examination.

[217] At the trial, the defence relied on R. v. Howard (1989), 1989 99 (SCC), 48 C.C.C. (3d) 38 (S.C.C.), which had not yet been clarified as it later was in R. v. Lyttle (2004), 2004 SCC 5, 180 C.C.C. (3d) 476 (S.C.C.). In R. v. Howard, at 46, Lamer J. said:

It is not open to the examiner or cross-examiner to put as a fact, or even a hypothetical fact, that which is not and will not become part of the case as admissible evidence. On this ground alone, the question should have been denied.

[218] Even though Lamer J. did not refer to authorities or provide analysis, some interpreted this passage as changing the law to prohibit cross-examination on otherwise admissible facts that had not been proven in evidence.

[219] On this basis, Stewart’s trial counsel made three arguments. First, in accordance with R. v. Howard, supra, the Crown should not be permitted to cross-examine Stewart on the alleged admissions because, as the Crown could not call the informants in reply without splitting its case, the admissions were not “admissible”. Second, since the statements came from unsavoury witnesses or jailhouse informants, they should be considered presumptively unreliable. Third, because Stewart would simply deny making each statement, the probative value of his responses would be outweighed by the prejudicial effect of the questions, and any caution by the trial judge would be insufficient to remedy the prejudice.

[220] During the defence argument, the trial judge suggested that the problem would be resolved if the Crown was permitted to call the informants in reply. To this, the defence responded that such reply evidence would be extremely prejudicial and an impermissible splitting of the Crown’s case.

[221] In her argument, Crown counsel took the position that R. v. Howard, supra, prohibited cross-examination only on evidence that was inadmissible. Provided the Crown had the necessary foundation, the Crown was entitled to reserve admissions to informants for the purpose of challenging the accused during cross-examination.

[222] On the issue of prejudice, the Crown argued that even denials of the admissions would be probative because the jury would have the opportunity to draw conclusions from Stewart’s demeanour. Finally, the Crown argued there was no reason to believe that jurors would not comply with the usual instruction cautioning them that suggestions contained in questions asked by counsel must not be used as evidence.

[223] In his brief ruling, the trial judge accepted the Crown argument that cross-examination on unproven but admissible statements was permissible, provided the Crown had a reasonable foundation for the questions. Without consideration of the potentially prejudicial effect of the cross-examination, the trial judge ruled that the Crown was entitled to conduct an unrestricted cross-examination of Stewart on all the purported admissions and the details of their surrounding circumstances.

[224] In light of this ruling, the defence advised the court that Stewart would not testify.

[225] By the time of this appeal, any confusion resulting from R. v. Howard, supra, was resolved by the Supreme Court of Canada’s decision in R. v. Lyttle, supra. After discussing the importance of the right to cross-examine, the Supreme Court in R. v. Lyttle noted, at para. 63, that the “conclusion that Howard mandates or authorizes the requirement of an evidentiary foundation for every factual suggestion put to a witness (expert or not) in cross-examination is misplaced.” The Supreme Court also confirmed, at para. 47, that counsel is entitled to cross-examine a witness “regarding matters that will not be proven independently, provided that counsel has a good faith basis for putting the question”.

[226] Despite the clarification in R. v. Lyttle, supra, the appellants argue that the trial judge should have prohibited the proposed Crown cross-examination for three reasons. First, such a cross-examination was tantamount to the Crown impermissibly splitting its case. Second, the trial Crown did not have a good faith foundation to support the cross-examination. Third, particularly with respect to the Metrakos information, the cumulative effect of repeated suggestions by the Crown that Stewart admitted his involvement in the murders created the innuendo that he must have made at least some of those admissions.

[227] In reply, the Crown urges us to interpret the trial Crown’s submissions as reflecting her good faith foundation for the Metrakos information and, regarding the other issues, argues that the record is insufficient for this court to reach a conclusion.

[228] In our view, although the trial judge was correct in concluding that counsel may cross-examine on matters which will not be proven in evidence, he erred in concluding that the trial Crown had established the requisite foundation to cross-examine Stewart on the Metrakos information. Furthermore, the trial judge erred in failing to weigh the prejudicial effect of the proposed cross-examination against its probative value. In our view, extensive, detailed questions about the circumstances of the alleged admissions, followed by seriatim denials of those admissions, had the potential to be irretrievably prejudicial, notwithstanding any caution to not consider the Crown’s suggestions as evidence. The trial judge ought to have considered whether the proposed line of questioning should be either restricted or prohibited.

[229] On appeal, counsel were able to agree on four overarching principles.

[230] First, voluntary admissions by an accused are generally admissible for their truth as an exception to the hearsay rule.

[231] Second, although a voir dire is required to establish the voluntariness of an admission to the police, or to another person in authority, generally no voir dire is required if the admission is made to a person not in authority, even if that person is an unsavoury witness or a jailhouse informant.

[232] Third, the Crown is entitled to call the evidence it chooses in its case, provided that it does not call any evidence with an “oblique motive”.

[233] Fourth, the Crown is not prohibited from reserving evidence for cross-examination that was not called in-chief, provided the evidence is not otherwise inadmissible, the Crown has a good faith basis in the foundation for its question, the Crown is not splitting its case, and the prejudicial effect of the cross-examination does not outweigh its probative value.

[234] We will deal first with the question of the good faith requirement in relation to the Metrakos evidence, then with the question of the prejudicial effect of the proposed cross-examination, and finally with the argument that the proposed cross-examination amounted to a splitting of the Crown’s case.

[235] The existence of a good faith basis for the proposed cross-examination of Stewart raises the issue of the role of the Crown, which was famously set out in R. v. Boucher (1954), 1954 3 (SCC), 110 C.C.C. 263 at 270 (S.C.C.):

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his [or her] function is a matter of public duty than which in civil life there can be none charged with greater personal respon-sibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. [Emphasis added.]

[236] The issue is whether the Crown considered the Metrakos information to be credible so that it had a good faith foundation for its proposed cross-examination.

[237] Metrakos, who was a jailhouse informant in custody with Stewart, had a substantial criminal record, as well as a lengthy history of using aliases both in Canada and in the United States. In return for $10,000, Metrakos provided a sworn statement to the police claiming that Stewart had admitted his involvement in the murders.

[238] In the hope of recording that admission, the police fitted Metrakos with a body pack. However, in the resulting recordings, Stewart’s only reference to the murders was to protest his innocence.

[239] On the eve of trial, in the light of Justice Kaufman’s The Commission on Proceedings Involving Guy Paul Morin: Report, supra, the appellants asked that the trial be adjourned to allow for a “Kaufman” review of the jailhouse informer witness.

[240] The trial Crown referred to its procedures for screening the evidence of such witnesses and advised that it had convened a meeting to consider the Kaufman-type witnesses in the Mallory and Stewart trial, even though the Kaufman recommendations had only recently been released.

[241] Regarding its internal deliberations about Metrakos, the trial Crown submitted:

When Mr. Kaufman wrote this report it was not the first time it occurred to us that the credibility of witnesses was in issue. We’ve been making these decisions all along. We had eliminated [another witness] at the preliminary hearing and I can say that we had eliminated Mr. Metrakos from our witness list before we put it to anybody’s review. These aren’t new issues. They’re not framed in any new constructs. Kaufman is in essence, in my submission, and I’m speaking only for myself, only a codification of what our job has always been. We take these issues very seriously and we always have.

[242] In our view, given its context, the trial Crown was clearly stating that she had rejected the Metrakos evidence as unreliable for reasons related to the concerns raised by the Kaufman report. We see no other reasonable interpretation for her submission, despite the able argument of the Crown on appeal.

[243] Although the trial Crown referred to Kaufman-like concerns in her submissions on the eve of trial, when faced with the argument that the trial could not proceed until after a Kaufman review had been conducted, she took a different position when she sought to elicit Metrakos’s information from Lamarche during her hearsay re-examination. When the Metrakos name was raised in that context, the trial judge, correctly recalling the earlier discussion, properly queried the Crown’s foundation:

There’s some factual basis about Metrakos that, to be frank, troubles me a little bit. It’s been said in the courtroom that he’s not being called, I mean I have no reason to know but if he’s not being called in part because of the recommendations of the [Kaufman] Committee …

[244] The Crown replied with a definitive and emphatic “no” to that inquiry saying, “It’s a much more localized decision,” unrelated to concerns about credibility and reliability. When queried further, in apparent contradiction to her earlier opinion, the Crown emphatically confirmed that the decision not to call Metrakos was motivated for other reasons and “Kaufman had nothing to do with that decision”.

[245] Since the trial judge accepted this explanation, Lamarche told the jury in re-examination that, in part, she pursued her investigation against Stewart and Mallory because she relied on statements from Metrakos and some of the other informants.

[246] It was with this background that the Crown later proposed to cross-examine Stewart about his alleged admissions to Metrakos. Based on the earlier assurances of the Crown, the trial judge accepted the existence of the requisite foundation and did not make further inquiries.

[247] While the issue in this case is more about Crown conduct than it is about any error on the part of the trial judge, it is helpful to consider the requirement for a good faith foundation in light of the intervening decision of the Supreme Court in R. v. Lyttle, supra. In R. v. Lyttle, at para. 48, the Supreme Court describes how “‘a good faith basis’ is a function of the information available to the cross-examiner, his or her belief in its likely accuracy, and the purpose for which it is used.” This requirement provides an important safeguard to prevent undue prejudice to the accused.

[248] To ensure that this safeguard is present, a trial judge is required to ensure there is a good faith foundation for questions posed in cross-examination. Where the good faith foundation is challenged, to ensure a fair trial, R. v. Lyttle, supra, at paras. 51-52, requires the trial judge to make inquiries and, in appropriate cases, to consider holding a voir dire:

A trial judge must balance the rights of an accused to receive a fair trial with the need to prevent unethical cross-examination. There will thus be instances where a trial judge will want to ensure that “counsel [is] not merely taking a random shot at a reputation imprudently exposed or asking a groundless question to waft an unwarranted innuendo into the jury box”. See Michelson v. United States, 335 U.S. 469 (1948) at p. 481, per Jackson J.

Where a question implies the existence of a disputed factual predicate that is manifestly tenuous or suspect, a trial judge may properly take appropriate steps, by conducting a voir dire or otherwise, to seek and obtain counsel’s assurance that a good faith basis exists for putting the question. If the judge is satisfied in this regard and the question is not otherwise prohibited, counsel should be permitted to put the question to the witness.

[249] While the procedure in R. v. Lyttle, supra, was set out in the context of a defence cross-examination of a Crown witness, the underlying principle would apply with even greater force to the Crown’s cross-examination of an accused.

[250] In this case, neither the Crown nor the defence sought a voir dire to resolve the issue. This was so for two reasons. First, R. v. Lyttle, supra, was decided after the Mallory and Stewart trial. Second, the trial judge had earlier refused a voir dire when the Crown proposed to call the jailhouse informants and the unsavoury witnesses in its case and he accepted the Crown’s good faith basis for calling that evidence.

[251] However, in our view, this issue should have been re-visited at the time of the proposed Stewart cross-examination. We say this because there is an important distinction to be drawn between the Crown calling a jailhouse informant or unsavoury witness during its case, and the Crown proposing to use information from that jailhouse informant or unsavoury witness for the purpose of cross-examining an accused.

[252] Where the Crown intends to call the statement in its case, a voir dire may be unnecessary because the defence will have the opportunity to expose the frailties of the evidence in cross-examination. The defence, however, will not have that opportunity when the Crown intends to use the information only in cross-examination of the accused. Where the Crown’s good faith foundation is challenged on reasonable grounds, and the suggestion put to the accused may be unfairly prejudicial, the proper course is for the Crown or the defence to seek a voir dire.

[253] Even absent a voir dire, however, the authorities are clear that the Crown is not entitled to reject a witness’s evidence in its own case as unreliable and then use that unreliable evidence later to cross-examine the accused. The Crown simply cannot have it both ways. If the Crown does not call a witness because that witness’s statement is viewed as untruthful or unreliable, the Crown cannot later put suggestions to the accused during cross-examination on the basis of that statement: see R. v. Wilson (1983), 1983 229 (BC CA), 5 C.C.C. (3d) 61 (B.C. C.A.); R. v. Dixon (1984), 16 C.C.C. (3d) 43 (B.C. C.A.); R. v. D.(C.) (2001), 2000 5730 (ON CA), 145 C.C.C. (3d) 290 (Ont. C.A.).

[254] The Crown on appeal properly concedes this point in its factum:

The respondent agrees that, as a matter of fundamental fairness, if evidence is too unreliable to be tendered in the Crown’s case, or if the Crown doubts its veracity, it should not be used in cross-examination of an accused, because such evidence would be incapable of providing a good faith basis for suggestions in cross-examination.

[255] Since the trial Crown’s submission on the eve of trial indicated that she did not have a good faith foundation for calling Metrakos as a witness, in the absence of a clear explanation of that earlier submission, her proposed cross-examination on the Metrakos information should have been prohibited. This error, caused by the Crown, was serious because it may have affected Stewart’s decision whether to testify.

[256] We turn to consider the Crown’s proposed use of the statements of the other informants. In doing so, we note that there was also a question about the Crown’s good faith foundation for referring to information from those individuals. Only Hayden’s name passed the Kaufman Committee. There were also issues that cast doubts on the reliability of other informers, particularly Bard, whose evidence had been rejected as unreliable by the same trial judge in the Sauvé and Trudel trial.

[257] Even if satisfied about the Crown’s foundation for the other admissions, the trial judge erred in failing to consider whether their probative value was outweighed by their prejudicial effect. We say this for two reasons.

[258] First, since Stewart’s defence was based on a denial of any involvement in the murders, his repetitious denials of the admissions could have no probative value and would have been potentially prejudicial. Despite warnings from the trial judge and the denials, on the facts of this case, we cannot discount the possibility that the jurors may have been influenced by the innuendo that would naturally arise from the questions posed time and again by the Crown.

[259] Further, the purported admissions and their surrounding circumstances would be introduced, not through the evidence of the disreputable informants, but through the Crown, with no indication of the unsavoury character of the individuals who provided the information. Moreover, Lamarche’s earlier evidence that her investigation relied in part on information from the same individuals created the risk that the jury would view information received from these individuals as apparently credible. In these circumstances, we consider that there was a real risk a limiting instruction would not remedy the prejudicial effect of the evidence.

[260] Second, in light of the denials, it would be irrelevant whether Stewart knew the informant, as would be the circumstances of the admissions, because the only admissible evidence was that the admissions were never made. In short, the Crown’s proposed cross-examination of Stewart about the circumstances surrounding the admissions, and his relationship with the informants, would have no relevance and no probative value.

[261] As the Supreme Court stated in R. v. Lyttle, supra, at para. 45, although the right to cross-examine is vitally important, a trial judge has a broad discretion, and we say an obligation, to “ensure fairness and to see that justice is done – and seen to be done.” In exercising that discretion, a trial judge will restrict cross-examination when the prejudicial effect of the questions posed outweighs their probative value.

[262] We note again that the evidence of unsavoury witnesses, including jailhouse informants, may be called by the Crown in-chief without a voir dire because the accused will have an opportunity in cross-examination to demonstrate the frailties of the evidence. In addition, during and subsequent to that testimony, the trial judge will caution the jury about the inherent dangers of accepting the evidence.

[263] The same safeguards, however, are not present when the Crown saves the admissions for the purposes of cross-examining the accused. The cross-examination becomes problematic in cases such as this one where the Crown proposes to spend a prolonged period cross-examining the accused about a series of admissions to a series of jailhouse informants with particular attention to the details about the circumstances of each admission.

[264] In such a case, the accused would not have the opportunity even to cross-examine the informants to provide the jurors with the necessary tools to weigh the informants’ credibility. In addition, while the Crown will have made the suggestions that the accused repeatedly confessed to the crime, the jurors may not know that the foundation for those suggestions came from jailhouse informants.

[265] In those circumstances, the standard judicial caution about the irrelevance of Crown’s suggestions may be inadequate to offset the potential prejudice to the accused.

[266] It is no answer to the problem to say, as was said in this case, that the Crown could call the informants in reply. This would only create an impermissible splitting of the Crown’s case, which would operate to the grave prejudice of the accused.

[267] In the end, the available record does not disclose a description of the Crown’s proposed line of questioning, or provide a list of the proposed informants and admissions, sufficient to conclude with certainty that the prejudicial effect of this line of questioning would have resulted in unfair prejudice to Stewart. This question must be left to the trial judge presiding at the new trial.

[268] After ascertaining the full scope of the cross-examination proposed by the Crown, the trial judge will be in a position to weigh the relevant factors to determine whether the Crown’s good faith in the reliability of the evidence is justified, and to balance the probative value of the cross-examination against the dangers of cumulative suggestions by the Crown about information provided by unsavoury witnesses and jailhouse informants.

[269] In making a decision whether to limit the proposed cross-examination, the trial judge should consider the scope of the cross-examination proposed by the Crown, the relevance of a prolonged cross-examination about the circumstances surrounding the admissions, any repetitious nature of the cross-examination, the relevance of any recantations, the character of the recipients of the purported admissions as unsavoury witnesses and jailhouse informants, and any other circumstance that would affect the determination of whether the prejudicial effect of the proposed cross-examination is out of proportion to its probative value.

[270] Regarding the argument that the Crown was attempting to split its case, it is common ground that the Crown was not entitled to and did not intend to call the informants in reply. Rather, as the Crown conceded, if Stewart denied the admissions, it would be bound by his answers.

[271] For these reasons, we conclude on the basis of the whole record that the trial Crown failed to provide a good faith foundation for cross-examining Stewart on the Metrakos statement. In addition, the trial judge erred in failing to weigh the prejudicial effect and probative value of the information from the other informants. Accordingly, we would give effect to this ground of appeal.

11. The admissibility of “oath-helping” evidence relating to Winn, a jailhouse informant

[272] Michael Winn, an unsavoury witness and jailhouse informant, was the Crown’s first witness. His evidence was a central component of the Crown’s case. Winn testified that Stewart and Mallory both admitted their involvement in the murders while he was in custody with them in 1991. In addition to many other admissions, Winn testified that Mallory told him, “Sauvé just went nuts and it didn’t have to be like that, he just went crazy.”

[273] This information, if believed, may have led the jury to its conclusion that Stewart was guilty of first degree murder and Mallory of second degree murder.

[274] Given the significance of Winn’s evidence, and his position as a jailhouse informant, his credibility was critical.

[275] The appellants submit that the Crown improperly bolstered Winn’s otherwise suspect evidence in examination-in-chief in three ways. First, the Crown elicited evidence about Winn’s rehabilitation, evidence that the Crown argues was relevant to his status as a jailhouse informant and was, in any event, admissible on the question of whether a Vetrovec warning was necessary.

[276] Second, Winn’s evidence was bolstered because his statements were marked as a lettered exhibit at trial and because the jury was provided with a transcript of his evidence.

[277] Third, the Crown elicited evidence from Winn that, as a result of the information Winn gave the police, other individuals had been convicted of serious crimes and received significant sentences. The appellants also submit that the prejudice occasioned by this evidence was not remedied by the mid-trial caution given to the jury.

[278] While evidence that bolsters credibility is admissible if tendered for some other permissible purpose, such as corroboration of other testimony, the rule against oath-helping prohibits the introduction of evidence for the sole purpose of establishing that a witness is credible before his or her credibility is attacked: see R. v. B.(F.F.) (1993), 1993 167 (SCC), 79 C.C.C. (3d) 112 (S.C.C.); R. v. Burns (1994), 1994 127 (SCC), 89 C.C.C. (3d) 193 (S.C.C.). Evidence is precluded as oath-helping if its purpose is to prove a witness to be truthful, as contrasted with evidence called for the purpose of showing the witness’s statements to be true.

[279] As this court said in R. v. Llorenz (2000), 2000 5745 (ON CA), 145 C.C.C. (3d) 535 at para. 28 (Ont. C.A.):

The line to be drawn when evidence is considered to be oath helping is not always clear. There is a distinction to be made between (1) evidence about credibility (i.e. in my opinion the witness is truthful), which is inadmissible and (2) evidence about a feature of the witness’s behaviour or testimony, which may be admissible even though it will likely have some bearing on the trier of fact’s ultimate determination of the question of credibility: R. v. K.(A.) (1999), 1999 3793 (ON CA), 45 O.R. (3d) 641, 137 C.C.C. (3d) 225 (C.A.), per Charron J.A. at p. 678. [Emphasis added.]

See also R. v. K.(A.) (1999), 1999 3793 (ON CA), 137 C.C.C. (3d) 225 (Ont. C.A.).

[280] Where evidence is admissible for another purpose, but it is also oath-helping, a court should take any appropriate steps necessary to limit the oath-helping nature of the evidence, including cautioning the jury.

[281] Winn had an extensive criminal record by the time he was twenty-five years of age. In addition to the 71 convictions he amassed between 1985 and 1989, Winn admitted that he had committed hundreds of other break and enter offences, two arsons, and had conspired on two occasions to commit murder.

[282] When the Crown examined Winn at this trial in 1998, he began by canvassing Winn’s extensive criminal record. He then elicited evidence from Winn that he had committed no crimes for the preceding nine years, he had overcome his drug addiction, and he had started a landscaping business. To demonstrate his landscaping work, Winn rolled up his sleeves to show the jury his hands, which he described as calloused and dry. In the course of his examination, the Crown asked Winn: “Now what has happened, if anything, sir, to let us, let the jury trust your word on something?” Winn answered the question by referring to his rehabilitation.

[283] Months later, Winn was recalled. He admitted that since he gave his evidence he had pled guilty to one count of possession of a stolen vehicle, for which he received a seventy-day sentence.

[284] Since Winn was a jailhouse informant whose credibility was a central issue, it would have been anticipated that the jury would be told to treat his evidence with great caution and to look for supporting evidence. The evidence about Winn’s rehabilitation was relevant to his credibility as a jailhouse informant.

[285] The evidence about Winn’s rehabilitation was not overemphasized by the Crown and was kept subordinate to the evidence about his unsavoury past and his position as a jailhouse informant. It would have been apparent to the jury that Winn’s professed rehabilitation was one of many relevant factors in their assessment of his reliability as a jailhouse informant.

[286] This was not a case like R. v. Clarke (1981), 1981 ABCA 222, 63 C.C.C. (2d) 224 (Alta. C.A.), where the Crown exceeded permissible limits by eliciting evidence about reformation that was disproportionate to its probative value. Accordingly, the Crown was entitled by way of introductory evidence to ask Winn about his criminal record and the gap in that record.

[287] We agree with the appellants that it was improper for the trial Crown to pose the question to Winn, “what has happened … [to] let the jury trust your word on something?” Fortunately, however, Winn’s response to this question did not exacerbate the problem because he simply said, “I’ve been totally straight and away from crime, I’ve opened my own little business, for the past – since – well, I’ve been crime free since 1989 … I opened a little landscape business and I’m doing quite well.” By that response, Winn only reiterated the earlier information he had given about his reformation. That response ameliorated any minimal prejudice to the appellants caused by the Crown’s question. We are also of the view that any prejudice that arose from Winn exposing his hands, and describing them as calloused by his landscaping work, was inconsequential.

[288] Subject to the need for an adequate Vetrovec caution and our subsequent caveat about the need for an oath-helping caution, we see no error in the trial judge responding to the jury’s question by providing them with the requested transcript of Winn’s testimony.

[289] Nor do we agree with the appellants’ argument that the prejudice from Winn’s evidence was exacerbated by counsel’s agreement to mark his statements as a lettered exhibit. From the transcript, it appears that the statements were marked as a lettered exhibit solely for the convenience of defence counsel, who used them extensively during their cross-examination of Winn.

[290] As a lettered exhibit, the statements did not form part of the evidence and in the circumstances of this case, including the absence of any objection at any time by the defence, there was no prejudice occasioned to the appellants.

[291] We see no basis to conclude that the jury’s question during deliberations seeking a copy of Winn’s videotaped statement arose from the fact that the statements were made a lettered exhibit. In any event, the trial judge refused the jury’s request and instead answered the jury’s alternative request by providing them with a copy of Winn’s transcript.

[292] More problematic, however, was Winn’s evidence that he regularly gave information to the police. In particular, he estimated that he had given Detective George Snider between fifty to one hundred pieces of information. Since Snider was one of the officers involved in the “gun-in-the-lake” incident, in which police officers disposed of a gun Jack Trudel acquired after Sauvé and Trudel were convicted, his credibility was challenged, which also increased concerns about Winn’s credibility.

[293] Winn was unmasked as a police informant in 1991 while he was incarcerated. He was then placed in protective custody. He subsequently became part of the Witness Protection Programme, during the course of which he gave Snider significant additional information. He told the jury that, as a result of this information, the criminal known as the “Flying Bandit” was arrested, convicted, and sentenced to twenty years and that a Mr. Craig was “convicted on a bunch of offences and got I think eight years”.

[294] The defence did not object to these aspects of Winn’s evidence during his examination-in-chief. Instead, Stewart’s counsel cross-examined Winn in an attempt to show that, although he was an informant, he was not a witness against the individuals about whom he had provided information. The objective was to prevent the jury from drawing an inference that Winn’s information had been accepted as credible in other criminal trials by demonstrating that he had not testified at those trials. When this line of questioning was perceived to exacerbate the problem, Stewart’s counsel sought mid-trial Vetrovec and oath-helping instructions to the jury.

[295] The Vetrovec instruction is dealt with separately in these reasons. On the question of oath-helping, the trial judge told the jury:

To make another point just in passing I would also like to point out to you that irrespective of what you find in relation to Mr. Winn’s other informa­tion to the police where he has given information to the police in other situations you should not reason that because for example Mr. Winn may have told the truth in one matter therefore he’s telling the truth in this mat­ter.

Such reasoning is not permitted in the circumstances of this case. You determine his credibility on all of the evidence in this case including what Mr. Winn said and how Mr. Winn said it and in relation to all of the rest of the evidence in the case as well.

[296] Although the trial judge did not revisit the issue of oath-helping in his charge to the jury, the defence raised no objection.

[297] In our view, the Crown should not have been permitted to elicit evidence that information supplied by Winn in other cases had resulted in convictions. These questions were not just intended to inform the jury about Winn’s status as a jailhouse informant, nor could these questions be justified as merely “poorly worded” or an “error in style”, as argued by the Crown on appeal. Rather, the effect of the questions and answers was to suggest that, since Winn’s information was credible, truthful and accepted in other cases, so it must be credible in this case.

[298] Whether a judge or jury in another case accepted Winn’s information as credible was irrelevant to the credibility of his information in this case. It was inadmissible.

[299] The Crown argued that the prejudice resulting from the Crown’s improper questioning was fully ameliorated by the trial judge’s mid-trial caution. In our view, it was not. The jury should have been told explicitly to ignore this evidence. Furthermore, the issue should have been specifically revisited in the charge to the jury.

[300] Accordingly, we would give effect to this ground of appeal.

12. Reasonable apprehension of bias on the part of the trial judge

[301] The appellants submit that the cumulative effect of certain conduct by the trial judge created a reasonable apprehension of bias and that the trial judge erred in failing to recuse himself when asked to do so.

[302] We agree that it would have been preferable had the trial judge not engaged in at least some of the conduct about which the appellants complain. However, on the facts of this case, in our view, the cumulative effect of the impugned conduct does not rise to the level necessary to establish a reasonable apprehension of bias. We accordingly conclude that the trial judge made no error in failing to recuse himself.

[303] The appellants rely on three incidents in support of their position. They submit that, at least when considered cumulatively, the trial judge’s conduct in these incidents gives rise to a reasonable apprehension of bias.

[304] The first two incidents on which the appellants rely concern the trial judge’s conduct in respect of R. v. Sauvé and Trudel, supra. The first incident involved the trial judge’s comments to the jury immediately after they delivered their guilty verdicts. During fairly standard remarks thanking the jury for their service, the trial judge said the following:

Members of the jury, we have heard your verdict and after fifteen months you do not have to listen to anyone with any more words for you or from anyone. You’ve spoken as judges and triers of the facts and you’ve spoken well and clearly. Your verdict is more than a reasonable one based on all of the evidence. You took an oath to well and truly try the case and you have done that. [Emphasis added.]

[305] The appellants’ concern is the highlighted sentence, which they say could only be perceived as expressing approval of the verdict. While the appellants acknowledge that such a comment may not be unusual in the ordinary course, they submit that it was problematic in this case for two reasons: first, because of certain other events that occurred following the Sauvé and Trudel convictions (we will discuss these events, below); and second, because, in addition to conducting the Sauvé and Trudel trial, the same trial judge was assigned to preside over the appellants’ trial relating to the same murders. Viewed in this context, the appellants submit that the trial judge’s approval of the Sauvé and Trudel verdicts creates a reasonable apprehension of bias.

[306] The second incident on which the appellants rely is a reception hosted by the trial judge at his home following the Sauvé and Trudel trial. Crown counsel, court staff, and the jury attended the reception; defence counsel were invited but did not attend. The same prosecution team conducted both cases.

[307] Further, the evidence filed on a subsequent recusal application indicated that some family members of one of the appellants understood the reception at the trial judge’s home was in the nature of a victory party. The appellants submit that, particularly when viewed in the light of these facts, the Sauvé and Trudel post-trial reception gives rise to a reasonable apprehension of bias.

[308] The third incident on which the appellants rely occurred during the course of the appellants’ trial. On September 27, 1997, while pre-trial motions were ongoing, the trial judge and his wife attended a charity event at the Ottawa Congress Centre and sat at a table with Crown counsel, their spouses, and Davidson, one of the police officers involved in this case, and his spouse. The evidence filed on the recusal application arising from this incident established that the trial judge’s seating arrangements had not been made in advance and were a matter of chance.

[309] However, the evidence also established that Davidson spoke to the trial judge privately on behalf of himself and Crown counsel and said they did not wish to compromise the trial judge or the case. He accordingly told the trial judge they would be willing to find alternate seating if the trial judge wished and would understand if the trial judge wanted to leave the table. The trial judge responded that he did not think such steps would be necessary as there were many people from the court all around the table. The evidence also indicated that the trial judge and his wife left the table part way through the event.

[310] The appellants say that the egregious aspect of this incident is the fact that the trial judge continued to sit at the table with Crown counsel and Davidson after it was pointed out to him that there was a concern about compromising the case. They contend that, when viewed in the context of the previous events and the circumstances the appellants were facing, the cumulative effect of these three incidents gives rise to a reasonable apprehension of bias.

[311] The appellants filed their first of two applications requesting that the trial judge recuse himself on November 25, 1996 after they learned that he had been assigned as the trial judge for this trial. They relied on two basic grounds in support of their motion: first, the trial judge would be required to revisit rulings he had made in R. v. Sauvé and Trudel, and second, the trail judge’s expression of agreement with the verdict in R. v. Sauvé and Trudel and the barbeque for the jury and Crown counsel hosted by the trial judge.

[312] The trial judge dismissed the first recusal application in written reasons dated January 14, 1997. The trial judge relied on the fact that he had written the comments he made to the jury before he knew the verdict. In his reasons, he said:

In thanking the jury for their verdict, the court said their verdict was “more than reasonable,” and reminded them of their oath to “well and it truly try the case.” That thank you was written in advance of knowing the jury’s verdict, and the phrase more than reasonable was substituted for the word reasonable simpliciter lest it appear to the jury after 15 months that the court was damning its verdict with faint praise. The court would have used precisely the same expression had the jury acquitted. In my view such information in the hands of a reasonable person would assuage fears of bias. [Emphasis added.]

[313] Concerning the barbeque held at his home, the trial judge noted the evidence indicating a concern that the gathering was a victory party. He said, “A reasonable person could have understood this to be another thank-you”. In addition, he noted that when the invitations were sent, the jury was reminded about the Criminal Code provisions regarding jury deliberations. He said: “It is an odd victory party that forecloses from the victors the possibility of talking about the game.”

[314] Finally, the trial judge noted that in his view, it would have been appropriate for defence counsel to attend. He said:

All counsel were deserving of the court’s thanks as well as the jury and the staff. Everyone’s job was finished. It was that experience which was shared. The result was irrelevant in that context.

[315] The appellants brought a second recusal application on January 5, 1998. The basis for the application was the September 27, 1997 Ottawa Congress Centre event. While acknowledging that there had been no discussion of the trial at the table, the appellants argued that, at least by this point, there had been a continuum of conduct on the part of the trial judge that raised a reasonable apprehension of bias.

[316] The trial judge dismissed the second recusal application in written reasons delivered on January 9, 1998. In his reasons, the trial judge provided additional facts about the gathering at his home; how he came to be at the Ottawa Congress Centre event; the fortuity of the seating arrangements; and the absence of discussion about the case at the table. Ultimately, he said the following:

The Judge (if I may move to the third person) was there because he thought that was his seat and that of his wife. If he had been prudent he would have moved his seat. But such failure to be practical and wise does not constitute a reasonable apprehension of bias in the particular circumstances of this case. The reasonable observer, fully informed, would not go away thinking, to use the words of Lord Denning: “The judge was biased”.

[317] We agree with the appellants that the trial judge’s conduct in holding the Sauvé and Trudel post-trial reception was ill-advised and that it would have been preferable had the trial judge left the table at which he was seated at the outset of the Ottawa Congress Centre event. However, we are not satisfied that the cumulative effect of the conduct about which the appellants complain rises to the level necessary to establish a reasonable apprehension of bias.

[318] The test for assessing a reasonable apprehension of bias claim is whether an informed person, viewing the manner realistically and practically and having thought the matter through, would think that the decision-maker would not decide the matter fairly. The test requires a two-part analysis of objectivity: the person considering the alleged bias must be reasonable and invested with knowledge of all of the relevant circumstances, including judicial traditions of integrity and impartiality, and the apprehension of bias itself must be reasonable based on what is observed: see R. v. S.(R.D.) (1997), 1997 324 (SCC), 118 C.C.C. (3d) 353 (S.C.C.); Committee for Justice and Liberty v. National Energy Board (1976), 1976 2 (SCC), [1978] 1 S.C.R. 369; R. v. Gushman, [1994] O.J. No. 813 (Gen. Div.).

[319] The concept of judicial impartiality requires that the trial judge approach the case with an open mind, meaning that he or she is open to persuasion. As the Supreme Court of Canada said in R. v. S.(R.D.), supra, at para. 35, adopting the words of the Canadian Judicial Council in Commentaries on Judicial Conduct (Cowansville, Qc.: Editions Yvon Blais, 1991) at 12, “True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.” In addition, in R. v. S.(R.D.), at para. 117, the Supreme Court noted:

Courts have rightly recognized that there is a presumption that judges will carry out their oath of office. This is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high. However, despite this high threshold, the presumption can be displaced with “cogent evidence” that demonstrates that something the judge has done gives rise to a reasonable apprehension of bias. [Citations omitted.]

[320] Concerning the trial judge’s remarks to the Sauvé and Trudel jury, in our view, it would be apparent to a reasonable observer that, even if the trial judge’s comments are interpreted as in some sense endorsing that jury’s verdicts, his comments were premised explicitly on the evidence that was presented at that trial. In our view, that fact alone is sufficient to negate the suggestion of a reasonable apprehension of bias in relation to this case. In particular, the fact that the verdicts at the first trial were “more than a reasonable one based on all of the evidence” did not imply that the same verdicts would follow at this trial, at which the evidence was not identical.

[321] In addition, in our opinion, the trial judge’s comments to the Sauvé and Trudel jury went no further than addressing the reasonableness of the verdict. Put another way, the trial judge did nothing more than confirm that the jury could properly reach the verdicts based on all of the evidence. Assessed from the perspective of a fully informed and reasonable observer, in our view, the trial judge’s comments do not imply that he would necessarily have reached the same verdicts as the jury in the Sauvé and Trudel trial. For this reason as well, his comments do not raise a reasonable apprehension of bias in this case.

[322] As for the reception held by the trial judge following the Sauvé and Trudel trial, we note that he did not have the benefit of this court’s decision in R. v. Bjellebo, 2003 26907 (ON CA), [2003] O.J. No. 3946 (C.A.), in which this court stated, at para. 16, “such a practice seems … to be ill-advised.” In that case, the reception was held before the accused was sentenced and the issue of a reasonable apprehension of bias was raised as part of an appeal from the sentence that was eventually imposed.

[323] In its reasons for dismissing the sentence appeal in R. v. Bjellebo, supra, at para. 16, this court noted that the risk inherent in holding a post conviction reception was that “a convicted accused might regard it as an inappropriate celebration of his condemnation.” However, the court went on to note that defence counsel attended without objection, and held that, on the facts of that case, the reception did not give rise to a reasonable apprehension of bias.

[324] The Sauvé and Trudel reception was held following an unusually lengthy trial. While defence counsel did not attend the reception, they were invited. Although hosting such an event is to be avoided in the future, we consider it likely that a fully informed and reasonable observer would view the reception as no more than an act of good will on the part of the trial judge.

[325] As we have said, the trial judge’s comments to the Sauvé and Trudel jury following delivery of the verdicts do not give rise to a reasonable apprehension of bias. Apart from his comments thanking the Sauvé and Trudel jury, there was no suggestion that the trial judge’s conduct of the Sauvé and Trudel trial was other than impartial. Given all of these circumstances, in our view, a fully informed and reasonable observer would not conclude that holding the Sauvé and Trudel post-trial reception created a reasonable apprehension of bias on the part of the trial judge in relation to this case.

[326] Concerning the trial judge’s attendance at the Ottawa Congress Centre event, as the trial judge himself recognized in his ruling, it would have been preferable had he left the table at which he was seated at the outset of the event or at least as soon as the issue of the seating arrangements was brought to his attention by the police officer. That said, we note that this was a public gathering and that the trial judge’s seating was not arranged in advance.

[327] The reality of today’s society is such that judges and lawyers involved in an ongoing case can find themselves in each other’s company through a variety of circumstances. Such circumstances include continuing education programs at which they are speakers, bar association events, as well as ordinary social functions. It would be a clear breach of judicial and professional ethics for a judge and a lawyer to discuss the case in these circumstances. There was no suggestion that such a breach occurred in this instance and, indeed, the appellants conceded as much on the recusal application.

[328] In our view, even when considered cumulatively with the other conduct relied upon by the appellants, on the facts of this case, a fully informed and reasonable observer would not conclude that the trial judge’s attendance at the Ottawa Congress Centre event would give rise to a reasonable apprehension of bias.

[329] Accordingly, we would not give effect to this ground of appeal.

13. The propriety of the Crown’s opening and closing addresses

[330] The appellants submit that the Crown’s opening and closing addresses were improper, inflammatory, and that they rendered the trial unfair. Appellants’ trial counsel objected to both addresses but the trial judge refused to grant a mistrial or provide the jury with a corrective instruction.

[331] The Crown’s opening address was undoubtedly influenced by the protracted pre-trial motions that included an attempt by the appellants to have the charges stayed as an abuse of process. The Crown’s opening statement, delivered over a two-hour period on October 5, 1998, demeaned the defence by using phrases such as:

I’m confident that the glaring spotlight of guilt will be shining on Richard Mallory and Robert Stewart, leaving no shadows of doubt to crawl behind, no dark corners to hide from the scrutiny of the truth.

I, for one, intend to call the defence lawyers “my friend” from time to time and I guess we’ll see if it goes both ways.

Crown counsel told the jury that the defence would invite them

to take the easy way out, to not perform your sworn duty which is to listen, watch, weigh all of the evidence of all of the witnesses, assess it unemotionally, and make a determination as to whether or not any of them merit your finding of honest, credible truthfulness. … Don’t be seduced by the easy way out that the defence will offer to you. Don’t be convinced to look away from the evidence.

[332] The appellants also claim the Crown engaged in pre-emptive argument and rehabilitation of witnesses, especially with respect to Gaudreault, and, as we have already noted, anticipating the defence attack upon the integrity of the investigation.

[333] The morning following the Crown’s opening address, defence counsel for both appellants submitted that the Crown’s opening was improper and announced their intention to move for a mistrial. They proposed that the defence be given an opportunity to obtain a transcript of the Crown’s opening. The trial judge refused to grant an adjournment, but left it to the defence to bring an application for a mistrial once they had the transcripts. Counsel for Stewart elected to open and regrettably sunk to the level of the Crown in the style and content of her remarks. Counsel for Mallory did not make an opening address. Almost three weeks later, with transcripts in hand, defence counsel for the appellants renewed the motion for a mistrial. The trial judge dismissed this motion.

[334] The Crown’s closing address, delivered over a five-day period, from January 10, 2000 to January 14, 2000, included controversial phrases and imagery that demeaned the defence position by suggesting that it was nothing more that an evasion of the truth designed to divert the jury from its sworn duty. Among the many objectionable passages cited by the appellants are the following:

We listened to [defence counsel] make their arguments to you, and as charming and able and articulate and even passionate and skilled as they are, as beguiling an argument can be, neither of them is a magician. Based on the evidence that you’ve heard in this case their clients are guilty and regrettably for counsel there’s nothing they can do about that simple fact. It doesn’t matter how many times they call witnesses liars and evidence lies, they are still not magicians. There is too much evidence that they are asking you to just put aside and ignore. I’ve yet to meet anyone who can convince twelve reasonable people that black is white and white is black, and neither [defence counsel] is that person despite all the other obvious skills that they possess.

When you consider what the defence has ultimately offered you, I would ask you to bear in mind this description of the octopus, I didn’t write it, it’s an old prosecutor’s standby, a prosecutor’s old standby, we’ll go that way, which comes from Victor Hugo and he writes: “The octopus is an animal that doesn’t have a beak to fight with like a bird, and it doesn’t have claws like a lion and no teeth like an alligator. All it has is an ink bag. When the octopus is attacked what it does is it releases a dark fluid into the waters making them dark and murky, enabling the octopus to escape in the darkness.” I would ask you whether there is any similarity between that line of defence and the one you’ve observed in this courtroom. Has the defence shown you any real, valid, legitimate defence based on the evidence or have they simply approached this like the octopus and tried to obscure things by making everything around them dark, trying to escape back into the darkness? Is this not a defence which relies on obfuscation, of skewering the issues, keeping their fingers crossed that maybe you weren’t too insulted by what Mr. Mallory tried to fly by from the witness stand? What was that that Mr. Mallory gave you?

This trial for the Crown is a question of demonstrating to you beyond a reasonable doubt the factual and legal truths behind the charges that are facing the accused. We bear that legal burden throughout this trial and all trials. Let us be clear, however, that that is not what it is about for the defence in this trial or any trial and they’ve already told you that. The trial for the defence is not about demonstrating the truth, it is about raising a reasonable doubt. Raising a reasonable doubt is the sole objective of the defence and it is their only obligation. As they said, they don’t have to demonstrate anything. In order to raise a reasonable doubt they’ve tried to direct your attention from the evident into speculation. When we clear the waters, which the defence have tried to muddy…

There’s another standard prosecutorial analogy for this defence approach that you observed and it goes like this: The defence need your faculties to be limited as though you were twelve blindfolded people trying to figure out what an elephant is using only your sense of touch. One person touching the elephant’s trunk might think it’s a snake, someone else feeling the leg might think “Well this is a tree.” That’s what I’m dealing with. Another person feeling the tail might think it’s a rope. If the defence can prevent you from seeing the whole animal then you may well fail to reach the right result, you may not identify exactly what you’re looking at. They want you to stay blindfolded and focus only on certain details in isolation, out of context, and then at the end of it they’re better able to argue and convince you that perhaps it is a snake or a tree or a rope, but clearly, ladies and gentlemen, given that perspective, they would feel that they’re in a better position to say to you that you must have a doubt as to whether it’s an elephant.

The very suggestion that Denis Gaudreault fabricated his evidence and conscripted Jamie Declare and Jamie’s mom and Rhonda and Garrett Nelson, Gaudreault’s own mother, Sylvie and Richard Gravell, to corroborate him, that suggestion that Gaudreault could do that speaks more loudly of the desperation in the defence position than anything I could have conceived of on my own.

[335] Following the Crown’s submissions, defence counsel objected to the rhetorical excesses in the Crown’s closing. Defence counsel asked for a mistrial, a corrective instruction, or an opportunity to reply (the defence had called evidence and the Crown had the last word before the jury). The trial judge refused to declare a mistrial and declined to allow a right to reply. With respect to providing corrective instructions, the trial judge said he would first have to read the written materials. The trial judge began his charge to the jury and in the end failed to provide any corrective instruction on this issue.

[336] The Crown’s role in the prosecution of criminal offences has long been recognized as quasi-ministerial. Success for the Crown is not measured in wins and losses. We repeat here the words of Rand J. in R. v. Boucher, supra, at 270, “The role of the prosecutor excludes any notion of wining or losing; his function is a matter of public duty … It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.” Moreover, as Kerwin C.J. noted in R. v. Boucher at 265, the Crown’s role is to assist the jury

but he exceeds that duty when he expresses by inflammatory or vindictive language his own personal opinion that the accused is guilty, or when he expresses by inflammatory or vindictive language his own personal opinion that the accused is guilty, or when his remarks tend to leave the jury an impression that the investigation made by the Crown is such that they should find the accused guilty.

[337] More recently, the Supreme Court acknowledged in R. v. Cook (1997), 1997 392 (SCC), 114 C.C.C. (3d) 481 at para. 21 (S.C.C.), rev’g (1996), 1996 7935 (NB CA), 107 C.C.C. (3d) 334 (N.B.C.A.), that while “it is without question that the Crown performs a special function in ensuring that justice is served and cannot adopt a purely adversarial role towards the defence” it is also “well recognized that the adversarial process is an important part of our judicial system and an accepted tool in our search for the truth”. Within the adversarial process the Crown is permitted to act as a strong advocate. Within the bounds set out in R. v. Boucher, supra, “the Crown must be allowed to perform the function with which it has been entrusted”: R. v. Cook, supra, at para. 21.

[338] It is well established that the opening address is not the appropriate forum for argument, invective, or opinion. The Crown should use the opening address to introduce the parties, explain the process, and provide a general overview of the evidence that the Crown anticipates calling in support of its case: see R. v. Griffin, [1993] O.J. No. 2573 at paras. 25-31 (Gen. Div.); R. v. Porter, [1992] O.J. No. 2931 (Gen. Div.); R. v. Sun, [2002] O.J. No. 2166 (S.C.J.); R. v. White, [1997] O.J. No. 5899 (Gen. Div.). Simply put, “the Crown’s opening address should be impartial and fair, a brief outline of the evidence that the Crown intends to call”: R. v. Griffin at para. 31. At the opening of the trial the rules constraining the Crown “should apply with even more vigour” than at the closing when by then the jurors have heard and seen all about the case: R. v. Griffin at para. 23.

[339] With respect to closing addresses, the Crown is afforded greater latitude: see R. v. Baltrusaitis (2002), 2002 36440 (ON CA), 58 O.R. (3d) 161 (C.A.). While Crown counsel must at all times conduct themselves with dignity and fairness, they are entitled to advance their position forcefully when making closing submissions. In R. v. Daly (1992), 57 O.A.C. 70 at 76 (C.A.), this court observed:

A closing address is an exercise in advocacy. It is the culmination of a hard fought adversarial proceeding. Crown counsel, like any other advocate, is entitled to advance his or her position forcefully and effectively. Juries expect that both counsel will present their positions in that manner and no doubt expect and accept a degree of rhetorical passion in that presentation.

[340] The closing address is the proper forum for argument and the Crown is certainly entitled to argue its case forcefully. The Crown should not, however, engage in inflammatory rhetoric, demeaning commentary or sarcasm, or legally impermissible submissions that effectively undermine a requisite degree of fairness: see R. v. Grover (1991), 1991 25 (SCC), 67 C.C.C. (3d) 576 (S.C.C.), rev’g (1990), 1990 11030 (ON CA), 56 C.C.C. (3d) 532 (Ont. C.A.); R. v. Romeo (1991), 1991 113 (SCC), 62 C.C.C. (3d) 1 (S.C.C.), rev’g (1989), 1989 7122 (NB CA), 47 C.C.C. (3d) 113 (N.B. C.A.); R. v. Munroe (1995), 1995 8921 (ON CA), 96 C.C.C. (3d) 431 (Ont. C.A.), aff’d (1995), 1995 84 (SCC), 102 C.C.C. (3d) 383 (S.C.C.).

[341] In a protracted and hard fought trial such as this, one with months of pre-trial proceedings and allegations of abuse of process, it may be difficult for the Crown to resist rhetorical excess. But resist it must, even when provoked by what Crown counsel perceives to be obstructive and truculent behaviour by the defence.

[342] In our view, the opening address of Crown counsel called for corrective action by the trial judge. Crown counsel was not content to follow the orthodox path and open by simply outlining for the benefit of the jury the case she intended to present. Regrettably, Crown counsel demeaned the position of the defence and the role of defence counsel, engaged in pre-emptive argument, undermined the presumption of innocence, and expressed her personal opinion as to the guilt of the appellants. Phrases such as “the glaring spotlight of guilt” and the reference to there being “no shadows of doubt to crawl behind, no dark corners to hide from the scrutiny of truth”, and the suggestion that the defence would try to “seduce” the jury to ignore the evidence were plainly inappropriate and set an unfortunate tone for the balance of the trial.

[343] We do not say that the trial judge necessarily erred by failing to declare a mistrial after the Crown opening. We agree with the Crown that it was within the discretion of the trial judge to conclude that the comments were not so egregious as to require a mistrial. On the other hand, it is our view that some corrective action was called for. The trial judge should, at a minimum, have admonished the overly aggressive trial Crown for violating the R. v. Boucher, supra, standard and instructed the jury to ignore the objectionable passages of the Crown’s opening address. As we have already indicated, by anticipating and attempting to pre-empt the attack on the integrity of the investigation, the Crown set the trial of that issue off on the wrong course.

[344] In her closing address the Crown again demeaned and denigrated the role of defence counsel, and, with considerable rhetorical flourish, portrayed the defence as deceptive and obstructionist, intent upon diverting the jury’s attention from the truth. While it is not improper for the Crown to identify for the benefit of the jury defence arguments inviting speculation, Crown counsel’s comments in this case were not in keeping with the standard outlined in R. v. Boucher, supra.

[345] We recognize that there are many cases involving similar remarks, uncorrected by the trial judge, that have been found by this and other courts not to be fatal: see e.g. R. v. Baltrusaitis, supra; R. v. Clark (2004), 2004 12038 (ON CA), 69 O.R. (3d) 321 (C.A.); R. v. Daly, supra. In view of the numerous other errors to which we have referred, it is not necessary for us to pronounce definitively upon the effect of the Crown’s rhetorical excesses. Suffice it to say that we view the passages we have quoted from the Crown’s opening and closing to have been inappropriate, and that in our view, at a minimum, the trial judge should have given a corrective instruction to redress the imbalance it created and to alleviate the risk that the jury might be improperly influenced.

14. Fresh evidence and other issues

[346] In addition to those raised by amicus curiae and counsel for Mallory, Stewart raised numerous grounds of appeal. Most were not argued orally, but were left to written argument.

[347] In our view, the main grounds of appeal were presented by amicus curiae and, in view of the result, it is unnecessary to address each of Stewart’s additional thirteen grounds, which essentially relate to factual issues. While these issues may be significant at a new trial, our role is not to retry the case. Most of the grounds raised by Stewart, including the allegation of inadequate assistance of counsel, are not errors of a nature that would permit an appellate court to grant Stewart the remedy he seeks, namely an acquittal. It is accordingly unnecessary for us to address those grounds. We will, however, address two issues raised by Stewart.

[348] While Stewart argues that he was framed by a conspiracy of lawyers and other participants in this proceeding, we see no basis on the record before us to support that submission.

[349] Stewart applies to admit fresh evidence that Linda Beland recanted certain parts of the testimony she gave at trial. At trial, Beland testified that she could not remember driving Gaudreault home on the night of the murders. In her fresh evidence, she says she now recalls that she did not drive him home.

[350] In 1993, the police asked Beland, who was married to Stewart, whether she drove Gaudreault home on the night of the murders in January 1990. In her first statement to the police, Beland said, “I never drove him home” and, further, that she could not remember ever being in a car with Gaudreault. In subsequent statements to the police, Beland maintained simply that she could not remember driving Gaudreault home. At the 1994 preliminary inquiry, when asked whether she drove Gaudreault home, she replied: “no, not that I recall.” At the Sauvé and Trudel trial, in response to the same question, Beland said, “I don’t think so, but I’m not 100% sure.” At this trial, Beland testified again that she could not remember driving Gaudreault home.

[351] On the application to admit Beland’s recantation as fresh evidence, Stewart relies on a sworn videotaped statement Beland gave to amicus curiae on March 3, 2005 and on her affidavit of July 6, 2005. In that material, Beland explains that her earlier inability to remember whether she drove Gaudreault home arose from her lack of information about what was said to have occurred on the night of the murders.

[352] The information that she now has about the night of the murders was given to her by Stewart in a taped conversation. That conversation took place after Beland completed her evidence at the trial. It is a conversation the Crown characterizes as witness tampering. In that conversation, Stewart told Beland that Gaudreault testified that all four accused were in the Beland/Stewart home at the same time and that all four were “running like a little boy all happy … like a chicken with his head cut off”. In addition, Stewart reminded Beland that the murders occurred on a school night.

[353] On the basis of this new information, which is in important ways at odds with the actual trial evidence, Beland now remembers that no such events occurred at her home. Therefore, she can now remember with certainty that she did not drive Gaudreault home on the night in question.

[354] Indeed, Beland now says that she always remembered she did not drive Gaudreault home and that she testified that she could not remember at the suggestion of the police and the Crown.

[355] Stewart argues that this fresh evidence is important because it directly contradicts Gaudreault on the important aspect of his testimony that Beland drove him home on the night of the murders.

[356] As this court held in R. v. Baltovich (2004), 2004 45031 (ON CA), 73 O.R. (3d) 481 at para. 162: “The test for ordering an acquittal based on fresh evidence is high; the evidence must be ‘clearly decisive’ of innocence. See R. v. Stolar, 1988 65 (SCC), [1988] 1 S.C.R. 480.” If accepted as true by the trier of fact, Beland’s fresh evidence would certainly support the appellants’ case. However, taking into account the various versions Beland has given in the past and the other evidence that was adduced at trial, we are not persuaded that Beland’s new version is “clearly decisive” of innocence. It follows that in the circumstances of this appeal, admitting the fresh evidence would result in a new trial, not an acquittal. As we are of the view that a new trial is necessary based on other grounds of appeal, we do not need to decide the application to admit the fresh evidence.

CONCLUSION

[357] We do not consider it necessary to decide which grounds of appeal, standing alone, would require a new trial. In view of the number and gravity of the errors we have found, we see no basis for applying the proviso. The appeals against conviction must be allowed, the convictions set aside, and a new trial ordered.

[358] We wish to express our thanks to all participants in this appeal for their assistance in organizing an unusually lengthy and complex record and in presenting the court with very helpful written and oral submissions.

“Robert J. Sharpe J.A.”

“Janet M. Simmons J.A.”

“Susan E. Lang J.A.”

RELEASED: January 26, 2007