Her Majesty the Queen v. Tuck [Indexed as: R. v. Tuck]
87 O.R. (3d) 308
Court of Appeal for Ontario,
Weiler, Gillese and LaForme JJ.A.
August 1, 2007
Criminal law -- Trial -- Counsel -- Closing address -- Deceased being stabbed to death in nightclub -- Trial judge admitting evidence that deceased had 39 ecstasy pills on his person on understanding after defence counsel stating that central issue at trial would be identity -- Defence counsel undertaking not to use that evidence to ask jury to draw inference that deceased had violent disposition, that he was dealing drugs or that there was a connection between deceased's drug dealing and violence -- Accused testifying that he stabbed deceased in self-defence -- Defence counsel implying in his closing address that accused being drug dealer therefore being more likely to have been aggressor -- Crown objecting and seeking corrective jury instruction -- Trial judge refusing on basis didn't wish to draw attention to defence counsel's remark or to appear to criticize counsel for one side -- Accused being acquitted -- Defence counsel's comment during his jury address being improper -- Trial judge erring in failing to correct defence counsel's impermissible implication that deceased's possession of drugs could be used for propensity reasoning regarding who was aggressor -- Crown's appeal from acquittal being allowed.
The accused was charged with murder after the stabbing death of a man at a nightclub. The police found 39 ecstasy pills, divided into six small plastic bags, sewn into the inside of the deceased's underwear. During pre-trial submissions, defence counsel sought to introduce evidence of the 39 pills. At that point, the trial judge understood that the central issue in the case would be the identity of the person who had stabbed the deceased. The trial judge ruled that the evidence was admissible, but placed clear limits on the use that the defence could make of it. Defence counsel assured the trial judge that he would not use the evidence to ask the jury to draw inferences that the deceased was dealing drugs nor had a violent temper or that there was any connection between the two. The accused gave notice that he intended to testify. Before doing so he sought a ruling that the accused's youth court record for assault causing bodily harm be excluded from evidence under the Corbett decision. The trial judge said that so long as the defence did not seek to adduce evidence from a potential witness that the deceased had a violent disposition, the accused's conviction for ABH could not be adduced. The defence did not call that witness and the accused's ABH conviction was not mentioned. The accused testified and acknowledged a prior conviction for mischief. He admitted stabbing the deceased and claimed to have acted in self- defence. He said that he ran away after the stabbing and allowed a friend to dispose of the knife as he was only 19 and didn't know anything about the law. He implied that his only prior run-in with the police related to the mischief charge. In his closing address to the jury, defence counsel stated that 39 tabs of ecstasy was more than one person would need for personal use, and rhetorically asked whether a link exists between drugs and violence. The Crown objected, and sought a corrective instruction in the charge to the jury. The trial judge decided not to address defence counsel's remarks in his instructions to the jury on basis that did not wish to draw attention to remark or appear to be unfairly criticizing counsel for one side during trial. The accused was acquitted. The Crown appealed. [page309]
Held, the appeal should be allowed.
The statements made by defence counsel in his closing address were improper. They invited the jury to conclude that the deceased was a drug dealer and, as such, had a propensity for violence and was more likely to be the aggressor. The device of asking a rhetorical question to cover this suggestion did not make the comments any less egregious. The trial judge erred in failing to correct defence counsel's impermissible use of the 39 pills evidence in his closing address to the jury. A trial judge should not hesitate to correct errors of counsel in order to preserve the fairness of the trial process. The trial judge should have told the jury that the suggestion that the deceased had ecstasy on him and was more likely to be violent should be disregarded because it invited the jury to engage in impermissible propensity reasoning. The issue of who was the likely aggressor had become central to the disposition of this case and was clearly at the heart of the jury's deliberations. The cumulative effect of the admission of the 39 pills evidence, the exclusion of evidence of the accused's propensity for violence, defence counsel's impermissible use of the evidence and the trial judge's failure to take corrective action left the jury with a distorted factual picture on the key issue. The verdict would not necessarily have been the same had the errors not occurred.
APPEAL by the Crown from an acquittal entered October 28, 2005 by McCombs J. of the Superior Court of Justice, sitting with a jury.
Cases referred to R. v. Finta, 1994 129 (SCC), [1994] 1 S.C.R. 701, [1994] S.C.J. No. 26, 112 D.L.R. (4th) 513, 165 N.R. 1; R. v. McMillan (1975) 1975 43 (ON CA), 7 O.R. (2d) 750, [1975] O.J. No. 2247, 23 C.C.C. (2d) 160, 29 C.R.N.S. 191 (C.A.), affd 1977 19 (SCC), [1977] 2 S.C.R. 824, [1977] S.C.J. No. 32, 73 D.L.R. (3d) 759, 15 N.R. 20, 33 C.C.C. (2d) 360; R. v. Munro, 2003 4958 (ON CA), [2003] O.J. No. 512, 173 C.C.C. (3d) 281, 186 O.A.C. 380 (C.A.); R. v. Parsons (1993), 1993 3428 (ON CA), 15 O.R. (3d) 1, [1993] O.J. No. 1937, 65 O.A.C. 61, 84 C.C.C. (3d) 226, 24 C.R. (4th) 112, 17 C.R.R. (2d) 104, 20 W.C.B. (2d) 553 (C.A.); R. v. Rose, 1998 768 (SCC), [1998] 3 S.C.R. 262, [1998] S.C.J. No. 81, 166 D.L.R. (4th) 385; R. v. Sparkes, [2005] O.J. No. 1883, 65 W.C.B. (2d) 278 (C.A.) Statutes referred to Young Offenders Act, R.S.C. 1985, c. Y-1
John Pearson and Megan Stephens, for appellant. Catriona Verner and Brian F. McAllister, for respondent.
[1] BY THE COURT: -- This is an appeal by the Crown from the respondent's acquittal on a charge of murder.
Background
The incident
[2] On the evening of February 3, 2001, the respondent and his friends David Coulter, Charles Coulter and Becky Parmiter attended a "rave" at The Docks nightclub in downtown Toronto. [page310] The deceased, Salim Jabaji, was also at the rave. He was accompanied by his friends, Robert Conejeros and Ryan Vandelaar.
[3] Not long after arriving at the club, Robert Conejeros and Charles Coulter got into a fight. The first fight was followed by a second altercation between Conejeros and Charles Coulter, and possibly others. The second fight was broken up by one of the club's bouncers, who forced Conejeros to the ground and removed him from the club.
[4] Shortly after, Salim Jabaji was found to be injured, rushed to hospital and pronounced dead. The autopsy indicated he died of a single stab wound to the chest. He also had a stab wound on his right arm above the elbow, which the pathologist explained was consistent with an injury to someone trying to defend himself. During the autopsy, the police found 39 pills of ecstasy divided into six small plastic bags sewn into the inside of the deceased's underwear.
The arrests
[5] On February 6, 2001, David Coulter was arrested for the murder of Salim Jabaji and Charles Coulter was arrested for assaulting Robert Conejeros. The respondent had fled the club and caught up with the Coulters. He told them that he had been attacked and might have stabbed the aggressor. Upset that the respondent had not come forward to exonerate his brother, Charles Coulter secretly recorded four telephone conversations in which he asked the respondent to turn himself in. The respondent explained that he did not want to confess his involvement until he knew the evidence against him. The respondent was subsequently charged with Jabaji's murder in September 2001 after complying with a police request for a blood sample. The charge against David Coulter was later withdrawn.
[6] In February 2003, an acquaintance of the respondent, Mark Yang, was arrested on gun-related charges. Upon his arrest, he provided police with an audiotaped statement in which he implicated the respondent in Jabaji's murder. (At trial, Yang testified that the statements he made to the police were not true but were based on things he read, heard and made up.)
The Pre-Trial Motion
[7] During pre-trial submissions, defence counsel sought to introduce evidence relating to the ecstasy pills found on the deceased (the "39 pills evidence"). He submitted that the 39 pills evidence was relevant for the following reasons: (1) as part of the "narrative or background" to the evening's events; (2) to help [page311] explain the animus between the Coulters and Jabaji; and (3) because it may have shown that others had a motive to harm Jabaji. On this last point, defence counsel agreed with the trial judge that the "central" issue in the case was identity, and that possession of the pills might assist in solving the "mystery" of who perpetrated the crime.
[8] The Crown opposed the admission of the evidence on the basis that it was not relevant. Secondly, at the time of the trial, the respondent also faced outstanding charges relating to the trafficking of large quantities of cocaine, marijuana, ecstasy and firearms. The alleged offences occurred after the offence in issue here. The Crown submitted that if involvement in drugs was relevant to the identity of the person who killed Jabaji, the evidence of the respondent's involvement with drugs should be admitted. Thirdly, the Crown was concerned that if the jury heard the 39 pills evidence they would decide the deceased was less worthy of protection under the law. Finally, [the] Crown also objected to the admission of the evidence on the grounds that any probative value was outweighed by its prejudicial effect.
[9] Defence counsel stated"I have no intention of introducing evidence in others, none." And"The propensity of third parties for violence is not something I intend to bring out."
[10] The judge stated"If I'm right that by eliciting evidence of the propensity of others will trigger the admissibility of your client's propensity, then the jury would hear that your client is alleged to be a gun dealer. And in this particular political climate today, that, I'm sure you will have decided, is not something that you want to open up. That's not a Pandora's box that you want to open."
[11] Defence counsel assured the trial judge that he would not use the 39 pills evidence to ask the jury to draw inferences about Mr. Jabaji "in the sense that he had a violent disposition or was dealing drugs or there was any connection between the two".
[12] The trial judge was obviously concerned about the potential implications of the 39 pills evidence. He acknowledged that lay people could draw a connection between drugs and violence without anyone asking them to do so. The trial judge indicated that if the evidence went in, he would make it clear to the jury that to fall into this type of propensity reasoning would be to fail to honour their oaths. "I accept without any reservation the fact that if things get skewed to the point where it's a character attack on someone who is not here to defend himself or his reputation (the deceased), that would be a terrible miscarriage of justice, no question."
[13] Ultimately, however, the trial judge ruled that the 39 pills evidence could be admitted. Although he did not explicitly state [page312] that the evidence was relevant to motive and the identity of the killer, the oral argument on the motion makes it clear that the trial judge understood that identity would be the central issue in the case. Before ruling, the trial judge once more asked defence counsel to confirm that the position of the defence would be that "the wrong person now sits here charged when the person who actually did [the killing] was the one charged in the first place [David Coulter]". Defence counsel replied: "Yes, sir, Well, I think that's fair, yes." The trial judge then held that the evidence was relevant because it was open to the jury to conclude that ecstasy was being consumed at the rave and because evidence of the deceased's drug possession was, at the least, relevant as part of the narrative or background facts of the case.
[14] The trial judge concluded his ruling on the admissibility of the 39 pills evidence by cautioning:
There are clear dangers inherent in pointing to the propensity of others to commit crimes when the accused himself has a similar propensity. . . . Mr. Hicks is well aware of this line of authorities and the principles that underlie them. He has advised me that he has no intention of placing his client's character in issue during the trial.
(Citations omitted)
[15] The trial judge stressed that if defence counsel had any doubt about whether a particular line of questioning could put his client's character in issue, he should seek guidance. He cautioned him that "if you don't and put your toe over that line and place your client's character in issue, you know what the consequences will be".
The Trial
[16] During the trial, the defence sought to call a witness, Ryan Vandelaar. Vandelaar proposed to testify that the deceased "had a temper and would throw the first punch" as well as that he had seen a small knife in the glove compartment of the deceased's car about a month prior to the night in question. He had not seen the knife on the night of the stabbing. The Crown submitted that if the defence sought to elicit this evidence to show the deceased's propensity for violence, the Crown would be entitled to respond with evidence of the respondent's propensity for violence. He also indicated he would like the trial judge to revisit two of his earlier rulings, one being the decision to admit the 39 pills evidence.
[17] After hearing the proposed evidence of Ryan Vandelaar -- and hearing the judge's initial assessment that his evidence would be admissible without putting the respondent's character [page313] in issue, with the exception of the evidence of the knife in the glove box -- defence counsel made his submissions. He argued that the knife in the glove box evidence would not raise bad character on the part of the deceased and thus did not place respondent's character in issue.
[18] After hearing defence submissions, the judge again sought clarification on why defence wanted the 39 pills evidence admitted. He asked whether defence counsel would ask the jury to infer that the deceased was trafficking in drugs. When defence replied that there was only evidence of possession, the judge asked"isn't it implicit?" He further noted that this left "an elephant in the room". "There's something there, everybody can see it, but nobody talks about it. So what you're saying is you're not going to talk to the jury about it, but isn't it going to be pretty obvious to them what your position is?"
[19] Again, the judge sought clarification from defence counsel about how he wanted to use the 39 pills evidence. He noted that that if the purpose was to suggest that "it's more likely that Mr. Jabaji initiated this chain of events and was armed with a knife than Mr. Tuck", his tentative view was that it would engage the principles in R. v. McMillan (1975), 1975 43 (ON CA), 7 O.R. (2d) 750, [1975] O.J. No. 2247 (C.A.), affd 1977 19 (SCC), [1977] 2 S.C.R. 824, [1977] S.C.J. No. 32, and R. v. Parsons (1993), 1993 3428 (ON CA), 15 O.R. (3d) 1, [1993] O.J. No. 1937 (C.A.).
[20] The Crown, pointing to R. v. Sparkes, [2005] O.J. No. 1883, 65 W.C.B. (2d) 278 (C.A.), noted that the principles also applied in the context of self-defence cases. He requested that if the knife in the glove box evidence was admitted, then the evidence that the respondent was a gun dealer should go in or, alternatively "knock it all out and let [the jury] decide on objective facts".
[21] The Crown further submitted that defence counsel's urging would lead to a distorted picture for the jury and that the conduct of the defence fell directly within McMillan and Sparkes. Defence counsel replied that Sparkes was not this case. The Crown replied, saying"Well, actually, this case, the way he's framing it now does fall within that realm, Your Honour. He's saying if the jury decides it was an engagement between Tuck and Jabaji, . . . . this evidence suggests he's more likely to be the aggressor, that is Scopelliti."
[22] The trial judge did not comment. Instead, he asked to hear argument on the outstanding Corbett application.
The Corbett application
[23] The defence had given notice that the respondent intended to testify. Prior to the respondent testifying, the defence sought a [page314] ruling that the respondent's criminal record under the then Young Offenders Act, R.S.C. 1985, c. Y-1 be excluded from evidence. Alternatively, the defence sought to have the respondent's conviction for assault causing bodily harm excluded leaving only the conviction for mischief.
[24] The Crown submitted that the trial judge should not rule on the Corbett application in a vacuum but that, prior to ruling on it, the judge should determine whether the defence would be seeking to put forward a defence of self-defence and would rely on propensity evidence relating to the deceased. He further submitted that this court's decision in R. v. Munro, 2003 4958 (ON CA), [2003] O.J. No. 512, 173 C.C.C. (3d) 281 (C.A.) was an example of a case where this court upheld a trial judge's decision to admit evidence of the accused's record although the accused had not put his character in issue but so that a fair balance would be struck. He added:
In this case what we have is we already have excluded off the table the utterances in the tape [the taped phone conversation with Connelly] where he's pounding somebody at school, his predilection for selling guns.
[25] The Crown continued:
The next issue is this character issue. If Mr. Jabaji's tendencies as described by Mr. Vandelaar go in, so does the ABH (assault causing bodily harm) on a Corbett. It only comes to the jury if he testifies and it only goes in as a conviction, no details. It's the least possible prejudicial type of evidence they can hear, but it's the fair line to draw, because there's going to be a great deal made in examination of Mr. Vandelaar by Mr. Hicks about how Salim Jabaji, this straight A student who was a good guy, had a temper and would throw the first punch. And you're entitled to consider and Munro mandates it, in my respectful submission, that if that's the case, then the fair line drawn here is to say, well, the ABH stays in. Because otherwise two things happen, you're cutting his criminal record basically in half and you're creating sort of a reverse propensity argument.
He added:
I don't intend to go into the ABH. I intend to keep it within the confines of the Canada Evidence Act. But Munro says that and so does Sparkes. . . .It's not good character on the part of Salim Jabaji to say he's got all that drugs on him that night and he has got a hot temper. That's bad character, no matter what Mr. Hicks says. And the proper balancing would say that in light of that, any notion that the ABH should be excluded should be laid to rest. . . .
[26] Defence counsel submitted that Sparkes and Munro involved an attack on the credibility of the Crown witnesses who had prior criminal records and that this was not the sort of misleading situation before the court.
[27] The trial judge ruled that Vandelaar's evidence respecting the knife was too remote in time and was not admissible. If the defence elected to call Vandelaar, the trial judge ruled that he [page315] would allow the ABH conviction to go in. If, on the other hand, the defence did not elicit evidence of the propensity of the deceased from Vandelaar, then the ABH conviction would not be admitted as its probative value would be outweighed by its prejudicial effect. The defence decided not to call Vandelaar.
[28] The respondent then gave his evidence. He testified that as his friends were dispersing following the second fight, he noticed a "big man", whom we now know was Salim Jabaji, staring at him. The respondent tried to rejoin his friends, but the man blocked his way and began yelling at him. The man then produced a knife and held it at shoulder height. Although he was shorter and weighed less than the big man, the respondent testified that he grabbed the deceased's hands and the two wrestled until the respondent got control of the knife. The respondent explained that the baseball cap he was wearing got pushed down over his eyes in the course of the struggle. When the deceased allegedly came at the respondent again, the respondent pushed him away with both hands. The respondent testified that he did not realize at that point that he had struck the deceased with the knife, nor did he realize until later that both his hands had been cut in the altercation. After fleeing the club, the respondent caught up with the Coulters, told them he had been attacked and might have stabbed the aggressor. The respondent testified that David Coulter took the knife from him and disposed of it. The three men then fled the club in David Coulter's car. The knife was later found in the nightclub.
[29] In the course of giving his evidence, the respondent testified that at the time of the incident he was 19 and didn't know anything about how the law worked. He also testified that when he was younger he had had a run-in with the police suggesting that the only contact he had with the police was his mischief conviction. In explaining why he did not go to the hospital to have the cuts on his hands treated following the stabbing he said he was afraid of needles and didn't like the sight of blood. [^1] He also said he was pleased to take the stand because he had been waiting so long. This testimony conveyed the notion that he was a law-abiding individual who was waiting to clear his name.
[30] When the defence theory evolved from identity to self- defence following the close of the Crown's evidence at trial, a central issue became who had brought the knife into the club, the respondent or the deceased. [page316]
The defence closing
[31] During his closing to the jury, defence counsel stated:
So, in the final analysis, who smuggled something into the Docks on February the 3rd, 2001? Who do we know for sure smuggled something into the Docks? Salim Jabaji. He smuggled thirty-nine tabs of ecstasy into the Docks, and perhaps more.
Thirty-nine tabs of ecstasy is more than one person would need for personal use, no matter how late this party went. Is there a hook-up, a link, between drugs and violence more so than say chess and violence or reading and violence?
(Emphasis added)
[32] The Crown immediately objected and asked the judge to instruct the jury that they could not consider the 39 pills evidence in the manner suggested by the defence. As he put it:
. . . what's more troubling to me. . . . is this road that Mr. Hicks deliberately went down in his closing saying that drugs and violence are connected. We spent hours of court time dealing with this issue and the issue of whether by making such a suggestion he would bring Mr. Tuck's character into issue and the Crown would be able to point out to the jury that if that is a legitimate inference to make, then really the person that should be hung by it is Mr. Tuck, not Mr. Jabaji, because he's really a high level drug dealer and gun dealer. So I'm very disappointed that was raised. And the only possible remedy that we have now, which Mr. Hicks knows, is an instruction. I'm going to ask you to instruct the jury in very clear terms, in light of this unfairness, that that suggestion by Mr. Hicks has no place in this trial and they are not to consider it.
[33] The trial judge responded that he did not want to delay the jury. Crown counsel agreed not to mention it in his closing address and went ahead and addressed the jury. The trial judge then heard submissions from counsel on the propriety of defence counsel's comments.
[34] Defence counsel maintained that what he had said to the jury was permissible. He said:
It's a rhetorical question. I didn't tell them to make that distinction. I already talked to them about inferences they can draw. And so I can say exactly what I said. . .
[35] When pressed by the trial judge to explain how he had not have put his client's character in issue if the "suggestion that Jabaji was more likely to be violent because he had drugs in his possession" had been made during the trial proper, counsel replied that his client had a right to make full answer and defence.
[36] The trial judge replied:
[Crown counsel] made the point in his submissions that we spent a great deal of time talking about what would and what would not place [page317] Mr. Tuck's character in issue. And I have struggled with it from the beginning of this trial until the end. And every one of these rulings has gone your way because I know the high cost to Mr. Tuck if I were to hold that it places his character in issue. And you undertook to me that you would not place his character in issue and, in fairness to you, you didn't, you were careful, otherwise you would have had a ruling from me that you had placed his character in issue. The objection here is that now that the evidence is in. . .
The lid is on the can. Now you go to the jury and say, hey, folks, don't forget Jabaji is a drug dealer, isn't it more likely that he had a knife? I mean, I know you didn't use that language. . . .
But that certainly was the purpose of your submissions.
Defence Counsel: After I told them that there are inferences they can draw and the proper basis upon which they can draw inferences, all I said here is somewhere you might want to connect the dots.
The Court: So perhaps when I asked you if you're going to place your client's character in issue, the correct answer would have been to say not until after all the evidence is in and only when I address the jury. . . . . The issue before me now is whether I should instruct the jury that that submission had no place in the address.
[37] After taking the evening to consider the matter, the judge advised counsel that he would not address it by way of instruction to the jury. He gave two reasons. First, he was of the view that it would "simply draw attention to it and create more problems than it will solve" and, second, if in the charge"a judge starts throwing mud at one of the lawyers, it can have unfair consequences".
The Issues
[38] On appeal, the Crown argues that the trial was rendered unfair as a result of the trial judge having erred in three ways:
i. admitting the 39 pills evidence;
ii. excluding evidence of the respondent's propensity for violence, thereby leaving the jury with a distorted picture as to who was the likely aggressor; and
iii. failing to correct defence's counsel's impermissible use of the 39 pills evidence in his closing address to the jury.
[39] We are of the view that the appeal should be allowed on the basis of the third ground of appeal. Accordingly, we address the first two grounds of appeal only in relation to overall fairness of the trial and to the extent necessary to give guidance with respect to the conduct of the new trial. [page318]
Analysis
[40] In determining whether the trial judge erred in failing to instruct the jury on the impugned statements, we begin by determining whether the impugned statements in defence counsel's closing address were improper. Counsel for the respondent concedes that if the statements invited propensity reasoning on the part of the jury, they would be improper. However, he submits the statements would only have led to the inference that Mr. Jabaji armed himself for defensive purposes before entering the club.
[41] In our view, the impugned statements carried the implication that the trial judge took from them. They invited the jury to conclude that the deceased was a drug dealer and, as such, had a propensity for violence and was more likely to be the aggressor. The statements were clearly improper.
[42] In so concluding, it is important to recall the context within which the ruling respecting the 39 pills were made. At the time of the pre-trial motion in which defence counsel asked that the 39 pills evidence be ruled admissible, the central issue in the case was understood to be the identity of the person who had stabbed Mr. Jabaji. In admitting the evidence, the trial judge placed clear limits on the use that the defence could make of the 39 pills evidence.
[43] Defence counsel assured the trial judge that he would not use the evidence to ask the jury to draw inferences about the deceased "in the sense that he had a violent disposition or was dealing drugs or there was any connection between the two". Yet this is precisely what he did in his closing address to the jury. The device of using a rhetorical question to convey his suggestion to the jury does not make his comments any the less egregious.
[44] In light of the clear and recognized dangers that the 39 pills evidence posed, at the time of the Corbett application, the trial judge ought to have ascertained whether, as suggested by the Crown, the defence position had changed and whether the defence would be seeking to put forward a defence of self- defence. A fresh determination as to whether the probative value of the 39 pills evidence outweighed its prejudicial value and whether it was necessary to declare a mistrial was required.
[45] Alternatively, upon learning that the defence was self- defence, then, despite the protestations by the defence, it ought to have been clear that the 39 pills evidence would be used as propensity evidence in relation to the deceased. That was the "elephant in the room", as the trial judge phrased it. [page319] The question was not simply whether the defence had put the deceased's character in issue but whether the jury would be left with an unfair impression. When the respondent took the stand and admitted that he had fatally stabbed Mr. Jabaji, the issue for the jury had become: who was the likely aggressor? The deceased or the accused?
[46] In R. v. Rose, 1998 768 (SCC), [1998] 3 S.C.R. 262, [1998] S.C.J. No. 81, at paras. 126-27, the Supreme Court of Canada held that "[i]t is not only appropriate for a trial judge, in a charge to the jury, to undertake to remedy any improper address by counsel, but it is the duty of the trial judge to do so when it is required." The court also stated"The judge should not hesitate to correct errors of counsel in order to preserve the fairness of the trial process. Taking this step will ensure fairness in the vast majority of cases." We would add that a limiting instruction could have been made without "throwing mud" on defence counsel, as the trial judge feared.
[47] The duty to correct unfair or improper statements made in closing addresses applies equally to Crown and defence closings. In R. v. Finta, 1994 129 (SCC), [1994] 1 S.C.R. 701, [1994] S.C.J. No. 26, at para. 281, concerns were raised about the prejudicial nature of statements made in the defence's closing. Justice Cory, writing for the majority, held that the statements were improper but found that the judge's instructions had remedied any resulting unfairness. In so deciding, he explained the key role that trial judges play in correcting misstatements or unfairness stemming from counsel's closing addresses:
At the conclusion of a long, difficult and emotional trial it is only natural that a jury would turn to a trial judge as the impartial arbiter for instructions and directions with regard to the case. In this case their trust was well placed. The jury received from the unbiased arbiter clear, unequivocal directions pertaining to all the improper statements of counsel for the accused. It is those instructions that they would hear last and take with them to the jury room and rely upon during the course of their deliberations. The final instructions of the trial judge are rightly assumed to be of great significance to the jury. That is why these directions are carefully reviewed by appellate courts.
(Emphasis added)
[48] The respondent submits that the trial judge's charge to the jury remedied any impropriety in defence counsel's closing submissions. In telling the jury the defence position the trial judge stated:
The thorough search of Mr. Tuck as recorded on the security video. That Salim Jabaji secreted drugs on his person when entering the club. That supports the inference, in Mr. Hick's submission, that Mr. Jabaji was more likely the one to have carried the concealed weapon into the Docks. [page320]
[49] We disagree that the unfairness to the Crown was remedied by this passage. The trial judge did not say, as he should have, that the suggestion that the deceased had ecstasy on him and was more likely to be violent should be disregarded by the jury because it invited them to engage in impermissible propensity reasoning.
[50] The issue of who was the likely aggressor was central to the disposition of this case and was clearly at the heart of the jury's deliberations. Within hours of starting to deliberate, the jury asked to have the respondent's testimony read back on (a) how he disarmed the deceased; (b) how far the deceased was from the respondent when the respondent first noticed him; and (c) when the respondent first noticed the knife. The jury next sought clarification on the criteria for and burden of proof with respect to self-defence, including, specifically, whether the Crown had to prove that the respondent did not experience an unlawful assault by the deceased. Just over two hours after being recharged on this point, the jury returned with its verdict of not guilty.
[51] The cumulative effect of the admission of the 39 pills evidence, the exclusion of evidence of the respondent's propensity for violence, defence counsel's impermissible use of the evidence and the trial judge's failure to take corrective action, left the jury with a distorted factual picture on the key issue. Given that the question of who was the likely aggressor was absolutely central to the jury's decision, the Crown has met its burden of showing that the verdict would not necessarily have been the same had these errors not occurred.
Disposition
[52] Accordingly, we would allow the appeal, set aside the acquittal and order a new trial.
Appeal allowed.
Notes
[^1]: Evidence was also elicited from one of the investigating officers that when a DNA sample of Tuck's blood was taken he fainted.