Her Majesty the Queen v. Duong [Indexed as: R. v. Duong]

84 O.R. (3d) 515

Court of Appeal for Ontario,

Labrosse, Weiler and Sharpe JJ.A.

February 1, 2007

Charter of Rights and Freedoms -- Fair trial -- Full answer and defence -- Cross-examination -- Accused being convicted of murder -- Crown relying exclusively on identification evidence of one witness and evidence of motive -- Crown witness refusing to answer questions on cross-examination by defence -- Trial judge dismissing defence motion for stay of proceedings -- Trial judge making serious errors in his assessment of reasons for witness' unresponsiveness, impact of that unresponsiveness and possibility of ameliorating prejudice through instruction to jury -- Trial judge failing to properly instruct jury as to danger posed by witness' failure to submit to cross-examination -- Accused's right to fair trial and right to make full answer and defence being undermined -- Appeal from conviction allowed -- Canadian Charter of Rights and Freedoms, ss. 7, 11(d).

Criminal law -- Evidence -- Cross-examination of Crown witness -- Accused being convicted of murder -- Crown's case depending on evidence of motive and identification evidence of one witness -- Witness refusing to answer questions during cross-examination -- Defence counsel seeking stay of proceedings or exclusion of witness' evidence and mistrial -- Trial judge dismissing defence motions indicating would deal with witness' refusal during Charge to the jury -- Trial judge erring in his assessment of prejudice suffered by accused and the ability instructions to the jury to ameliorate that prejudice -- Trial judge having discretion to admit evidence of witness refusing to be cross-examined if properly weighing relevant factors -- Charge to the jury inadequately conveying significant dangers of disreputable identification witness who refused to be cross-examined -- As new trial required due to errors in Charge, unnecessary to decide whether trial judge should have excluded witness' evidence and declared mis-trial -- Appeal from conviction allowed.

Criminal law -- Evidence -- Consciousness of guilt -- Crown adducing evidence about search for accused after fatal shooting and up to time of his arrest -- Evidence containing hearsay and double hearsay and not being admissible as narrative -- Evidence being highly prejudicial to accused -- In closing address Crown reviewing evidence in detail as evidence of consciousness of guilt -- Trial judge not giving jury any limiting instruction on use of evidence or correcting Crown for using evidence to suggest consciousness of guilt -- Appeal from conviction allowed.

Criminal law -- Hearsay -- Crown in murder trial relying on out of court statement of witness as only evidence of motive -- Witness initially telling police recalled no altercation night of murder involving the accused -- Witness reluctant to provide formal statement -- One month after events witness providing detailed statement which was not videotaped nor under oath -- Police not advising witness of consequences of making false statement -- Witness later providing videotaped statement [page516] claiming to recall vague details of some incident involving accused -- During examination-in-chief witness initially stating only vague memory but then adopting most of earlier more specific statement -- During cross-examination witness asserting recollection vague -- Trial judge erring by permitting Crown to introduce witness' detailed statement to the police for truth of contents -- Timing of statement not indication of reliability as made a month after events -- Cross-examination at trial not useful substitute for contemporaneous cross-examination as witness maintained that couldn't recall events -- Statement also contained double hearsay and trial judge erring in failing to advise jury to disregard those portions of statement -- Appeal from conviction allowed.

One man was killed and two others were injured when a gunman opened fire on them outside a restaurant. The accused was charged with first degree murder and attempted murder. At trial, the Crown relied exclusively on identification evidence provided by one of the injured men, C, along with evidence of motive based on a prior dispute between the accused and the deceased. C refused to answer questions on cross-examination by the defence. At the end of the Crown's case, the defence moved for a ruling that C's evidence be struck and the proceedings stayed for breach of the accused's rights under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. The trial judge concluded that he had the discretion to admit C's evidence despite his refusal to be cross-examined, and ruled that any unfairness to the accused could be dealt with by way of an appropriate instruction to the jury. The motion was dismissed, and the accused was ultimately convicted. He appealed.

Held, the appeal should be allowed.

The right of the defence to cross-examine Crown witnesses is an essential component of the right to make full answer and defence. However, the decision to admit or exclude the evidence of a witness who has been unresponsive on cross-examination lies within the discretion of the trial judge. The issue is one that calls for a careful assessment of the reason for the unresponsiveness, the impact of the unresponsiveness, and the possibilities of ameliorative action. The trial judge made serious errors in his assessment of all three of those factors. He unfairly placed the blame for C's silence on the accused. There was no evidence capable of supporting a finding that C was unresponsive because the accused had threatened him or caused him to fear for his safety. The trial judge unduly minimized the prejudice to the accused caused by C's unresponsiveness. His suggestion that any cross-examination of C was unlikely to produce a complete capitulation by the witness was an entirely unrealistic standard. All the defence needed to do was to undermine C's credibility to the point of raising a reasonable doubt. The trial judge seriously erred in his assessment of his ability to ameliorate the prejudice to the accused. In his charge to the jury, the trial judge effectively told the jury that it could safely assume that C's evidence would not have been shaken by cross-examination. He left the jury completely in the dark as to what an effective cross-examination might achieve by way of undermining C's credibility and raising a reasonable doubt. He repeated the error he made in his ruling when he posited the entirely unrealistic view that cross-examination would only be effective if it produced a complete capitulation by the witness. The accused's right to a fair trial and his right to make full answer and defence were undermined. On this basis alone, the conviction should be quashed and a new trial ordered.

The trial judge also erred in admitting into evidence a statement given to the police on February 20, 1998 by S that the accused and the victim had had a fight several hours before the shooting and that the accused had remarked to S that he [page517] was going to kill the deceased. That statement was given two months after the shooting. S was not told of the criminal consequences of making a false statement or placed under oath, and he refused to be video or audiotaped or to review and sign the interviewing officer's notes. On April 14, 1998, S gave a videotaped statement under oath after being cautioned. On that occasion, he recalled few specifics, and did not mention the accused's alleged remark about killing the deceased. At trial, S initially testified consistently with his April 14 statement. When he was shown the officer's notes from his February 20 interview, he equivocally accepted that the accused said that he wanted to kill the deceased, but added that the accused had calmed down by the time he left. The Crown sought and received permission to cross-examine S as an adverse witness, and by the end of his cross-examination by the Crown, S had adopted virtually all of the contents of his February 20 statement. During his cross-examination by the defence, S reverted to his original testimony. The Crown then applied to have the February 20 statement admitted for the truth of its contents under the principled exception to the hearsay rule. In ruling that the statement was admissible, the trial judge erred in his assessment of the indicia of reliability. The timing of the February 20 statement did not make the statement more likely to be true. The statement was not given so close in time after the incident that it was likely to be inherently reliable. The fact that the interviewing officer believed S was irrelevant to the reliability of the statement. The trial judge did not advert to the absence of any attempt by the police to bring home to S the consequences of not telling the truth. The fact that S was present at trial and could be cross-examined did not, in the circumstances of this case, readily permit the jury to assess the reliability of his purported statement, as most of the time S was in the witness box he said he did not remember what was said on the night of the murder.

At trial, the Crown adduced evidence about the search for the accused after the shooting and up to the time of his arrest. This evidence contained hearsay and double hearsay and was not part of the narrative, it was highly prejudicial to the accused, and it should not have been admitted. In its closing address, the Crown reviewed the evidence in detail as evidence of consciousness of guilt. The trial judge erred in failing to give the jury a limiting instruction on its use or correct the Crown for using the evidence to suggest consciousness of guilt. There was an inevitable risk that the jury would rely on this evidence as circumstantial evidence of guilt.

APPEAL from the convictions entered on May 15, 1999 by O'Driscoll J. of the Superior Court of Justice, sitting with a jury, for first degree murder and attempted murder.

Cases referred to R. v. Hart, 1999 NSCA 45, [1999] N.S.J. No. 60, 135 C.C.C. (3d) 377 (C.A.), apld Other cases referred to R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22, 148 N.R. 241, 79 C.C.C. (3d) 257, 19 C.R. (4th) 1; R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481, [2004] O.J. No. 4880, 192 O.A.C. 366, 191 C.C.C. (3d) 289, 26 C.R. (6th) 298 (C.A.); R. v. Cameron, 2006 CanLII 16078 (ON CA), [2006] O.J. No. 1928, 208 C.C.C. (3d) 481 (C.A.); R. v. Conway (1997), 1997 CanLII 2726 (ON CA), 36 O.R. (3d) 579, [1997] O.J. No. 5224, 121 C.C.C. (3d) 397, 13 C.R. (5th) 139 (C.A.); R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, [1996] S.C.J. No. 117, 30 O.R. (3d) 641n, 141 D.L.R. (4th) 193, 204 N.R. 241, 111 C.C.C. (3d) 129, 2 C.R. (5th) 245; R. v. Karthiresu, 2000 CanLII 6008 (ON CA), [2000] O.J. No. 309, 129 O.A.C. 291, 45 W.C.B. (2d) 294 (C.A.); R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, [1990] S.C.J. No. 81, 41 O.A.C. 353, 113 N.R. 53, 59 C.C.C. (3d) 92, 79 C.R. (3d) 1; R. v. Khelawon, [2006] S.C.J. No. 57, 220 O.A.C. 338, 355 N.R. 267, 215 C.C.C. (3d) 161, 2006 SCC 57, 42 C.R. (6th) 1; R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, [1997] S.C.J. No. 77, 118 Man. R. (2d) 218, 150 D.L.R. (4th) 733, 216 N.R. 215, 149 W.A.C. 218, [1997] 10 W.W.R. 570, 118 C.C.C. (3d) 1, 9 C.R. (5th) 1; R. v. Lyttle, [2004] 1 S.C.R. 193, [2004] S.C.J. No. 8, 235 D.L.R. (4th) 244, 316 N.R. 52, 115 C.R.R. (2d) 172, 180 C.C.C. (3d) 476, 2004 SCC 5, 17 C.R. (6th) 1; [page518] R. v. McMillan, 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824, [1977] S.C.J. No. 32, 33 C.C.C. (2d) 360, affg (1975), 1975 CanLII 43 (ON CA), 7 O.R. (2d) 750, [1975] O.J. No. 2247, 23 C.C.C. (2d) 160 (C.A.); R. v. Merz (1999), 1999 CanLII 1647 (ON CA), 46 O.R. (3d) 161, [1999] O.J. No. 4309, 140 C.C.C. (3d) 259, 30 C.R. (5th) 313 (C.A.) [Leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 240]; R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, [1993] S.C.J. No. 135, 109 D.L.R. (4th) 478, 162 N.R. 1, 19 C.R.R. (2d) 93, 86 C.C.C. (3d) 481, 26 C.R. (4th) 1; R. v. Ranger (2003), 2003 CanLII 32900 (ON CA), 67 O.R. (3d) 1, [2003] O.J. No. 3479, 178 C.C.C. (3d) 375, 14 C.R. (6th) 324 (C.A.); R. v. Snow (2004), 2004 CanLII 34547 (ON CA), 73 O.R. (3d) 40, [2004] O.J. No. 4309, 191 O.A.C. 212, 190 C.C.C. (3d) 317 (C.A.); R. v. Stretton and McCallion (1988), 86 Cr. App. R. 7 (C.A.); R. v. Wyatt, 1997 CanLII 12488 (BC CA), [1997] B.C.J. No. 781, 115 C.C.C. (3d) 288 (C.A.); R. v. Yu, 2002 ABCA 305, [2002] A.J. No. 1552, 171 C.C.C. (3d) 90 (C.A.) Statutes referred to Canada Evidence Act, R.S.C. 1985, c. C-5, s. 9(1) [as am.] Canadian Charter of Rights and Freedoms, ss. 7, 11(d)

James Lockyer and Leslie Maunder, for appellant. Alison Wheeler, for respondent.

[1] BY THE COURT: -- In the early morning of December 17, 1995, a gunman with a semi-automatic rifle shot at three men smoking outside a restaurant. Two of the men were injured by ricocheting bullets and the third, the apparent target, was killed by numerous shots fired at close range. The Crown's case rested essentially on the testimony of one of the men injured. He testified that he recognized the appellant as the shooter. Earlier that night at a club, the victim and the appellant had been involved in an altercation, apparently over an unpaid debt. The appellant and the three men were all known to each other.

[2] An unusual feature of this one-year trial (including two months of pre-trial motions) was that the only witness to identify the appellant as the shooter refused, over a period of four days, to answer questions on cross-examination. The witness was ultimately held in contempt of court, but the trial judge dismissed a defence motion to exclude his evidence. Another unusual feature of the trial was the rancour that existed between the trial judge and defence counsel. The trial was also characterized by numerous motions and applications brought by the defence, mostly without success, including a recusal motion on the basis of reasonable apprehension of bias, a mistrial application and an application for a directed verdict.

[3] On May 15, 1999, a jury found the appellant guilty of one count of first-degree murder and two counts of attempted murder [page519] in relation to the early morning shooting. The appellant appeals his convictions. For the reasons that follow, we would allow the appeal and order a new trial.

The Facts

[4] On the evening of December 16, 1995, Tommy Vo (the "deceased"), Chuong Van Chu and Van Vi Huynh went to the Casa Blanca night club in Scarborough. At the club, Vo had a dispute with Tien Dung Duong (the "appellant" or the "accused"). The appellant allegedly owed Vo money and Vo was seen hitting the appellant in the face. Security personnel intervened before a fight could break out. Vo and the appellant left the club separately with their respective friends.

[5] The manager of the Casa Blanca club, Vic Termini, and a security guard at the club, Cheech Sun, testified that they heard the appellant threaten to kill Vo.

[6] Vo and his friends drove back to Toronto and at approximately 2:30 a.m., while in the car, they decided to go to the Jun Jun Restaurant, a popular late night eatery at Broadview and Gerrard streets. At about 3:30 a.m., the three men went outside the restaurant and stood in a small outdoor alcove to smoke a heroin-laced cigarette. A man armed with a semi-automatic rifle emerged from an alley and began shooting at them. Vo, seemingly the intended target of the shooting, was shot at least 15 times. The shooter dropped the gun beside Vo's head. Chu was struck in the knee, probably by a ricocheting bullet. He lost a lot of blood and required extensive surgery. Huynh suffered a minor injury to his back.

[7] Three days later, the appellant was arrested and charged with the offences. No forensic evidence linking him to the murder or the scene was ever discovered.

The Trial

[8] The Crown relied exclusively on the identification evidence provided by Chu and evidence of motive based on the dispute between the appellant and Vo at the Casa Blanca.

[9] The defence took the position that Chu's identification was unbelievable and unreliable. During his examination-in- chief, Chu was declared an adverse witness and was cross- examined by the Crown. However, he essentially refused to be cross-examined by the defence. The defence also attacked the evidence of Vic Termini, the Casa Blanca club manager (on the basis that originally he had told the police nothing had happened at the club and later changed his story after arrangements had been made by the [page520] police to assist him with outstanding charges he was facing) and particularly the evidence of Cheech Sun, the club security guard (on the basis that he was an unreliable witness).

[10] The defence claimed that the appellant had only a limited and unlikely opportunity to have committed the offence. The shooting occurred approximately two hours after Vo, Chu and Huynh left the Casa Blanca. The decision to eat at the Jun Jun was made during their journey downtown from the Casa Blanca and the appellant could not have known their destination. According to Cheech Sun, the appellant was wearing a blue shirt and jeans and left the Casa Blanca in a black Japanese car with his friends. According to Chu, the shooter was wearing a brown and white lumber jacket/shirt and came out of a white four-door American sedan. The defence argued that for the appellant to be the person who murdered Vo, not only would the appellant have had to have had the good fortune to run into Vo at the Jun Jun, but also would have had to obtain a change of clothes, a different car and a large MAK-90 gun between leaving the Casa Blanca and arriving at the Jun Jun.

[11] The defence strongly objected to a KGB ruling regarding a statement given by Cheech Sun to the police which had the effect of strengthening the evidence of motive.

[12] The defence also objected to the admission, as narrative, of a body of evidence regarding the post-shooting search for the appellant by the police. Other objections related to the charge to the jury.

[13] At the end of the Crown's case, the appellant applied for a directed verdict on the basis that the evidence of Chu should be excluded and, without it, a reasonable jury properly instructed could not convict. The application was dismissed. The appellant then brought a Corbett application and an application to introduce evidence of third party suspects. Both applications were dismissed. The appellant then elected to call no evidence in his defence.

[14] During the trial, there was palpable antagonism between defence counsel (not counsel on the appeal) and the trial judge, who, at times, expressed contempt for defence counsel, often in the presence of the jury. The defence argued that the charge to the jury was unfair and unbalanced.

The Grounds of Appeal

[15] The appeal raises the following grounds of appeal:

(1) The trial judge's errors regarding the evidence of Chu; [page521]

(2) The trial judge's errors regarding the evidence of Cheech Sun;

(3) The third party suspect testimony;

(4) The post shooting evidence;

(5) The tenor of the proceedings and the charge to the jury; and

(6) The trial judge's directions on the burden (standard) of proof.

1. The trial judge's errors regarding the evidence of Chu

[16] The appellant argues that the trial judge erred by ruling that Chu's evidence was admissible despite Chu's refusal to be cross-examined. Even if Chu's evidence was admissible, the appellant contends that the trial judge erred by failing to give an appropriate direction to the jury warning of the serious dangers posed by his evidence.

[17] During his examination-in-chief, Chu behaved strangely at times, laughing inappropriately, pausing for long periods without responding to questions, and covering his face. Toward the end of his examination-in-chief, Chu surprised everyone, including the Crown and the police, by stating that six years before the murder, he had become "an agent for Asian crime". Over the appellant's objection, the trial judge directed that the police interview Chu to investigate this assertion. A police officer who worked for the Asian Crime unit later testified that Chu was not an informer or police agent.

[18] After an interruption of ten days, the Crown closed its examination-in-chief of Chu without asking any further questions. On cross-examination, Chu answered questions in a halting fashion for an hour. After a further interruption of several days, the cross-examination resumed. Chu sporadically responded to questions for half an hour. Thereafter, he refused to answer any questions. Defence counsel continued to pose questions over four days but Chu refused to respond.

[19] At various points in the attempted cross-examination, the trial judge took steps to encourage or coerce Chu to respond. On several occasions, the trial judge attempted to explain to Chu the importance of responding to counsel's questions. The trial judge warned Chu several times that he could be cited for contempt if he continued to refuse to answer. The trial judge arranged for a lawyer to meet with Chu to provide him legal advice. Despite these efforts, Chu remained silent. The trial judge ultimately cited him for contempt. [page522]

[20] Defence counsel moved for a ruling that Chu's evidence was "no evidence" due to his refusal to be cross-examined, but the trial judge found that motion to be premature as Chu might change his mind. Chu was brought back before the jury on two occasions but remained silent for the duration of the trial.

[21] At the conclusion of the Crown's case, defence counsel moved for a ruling that Chu's evidence be struck and the proceedings be stayed for breach of the appellant's ss. 7 and 11(d) Charter rights. The trial judge dismissed this motion. In his ruling, the trial judge reviewed the authorities, concluded that he had the discretion to admit Chu's evidence despite Chu's refusal to be cross-examined, and ruled that any unfairness to the appellant could be dealt with by way of an appropriate instruction to the jury.

(a) Did the trial judge err by ruling Chu's evidence to be admissible?

[22] The right of the defence to cross-examine witnesses for the prosecution is fundamental to our adversarial system of justice: see R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, [2004] S.C.J. No. 8, 180 C.C.C. (3d) 476, at para. 2, "[T]he right of an accused to cross-examine witnesses for the prosecution -- without significant and unwarranted constraint -- is an essential component of the right to make full answer and defence." See also R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, [1993] S.C.J. No. 135, 86 C.C.C. (3d) 481, at p. 663 S.C.R., p. 517 C.C.C.: "Cross-examination must be permitted so that an accused can make full answer and defence. The opportunity to cross- examine witnesses is fundamental to providing a fair trial to an accused." It follows that the failure of a witness to respond to questions put on cross-examination calls for close scrutiny to ensure that the fair trial rights of the accused are protected.

[23] The leading Canadian case on the evidentiary status of evidence from an unresponsive witness is R. v. Hart, 1999 NSCA 45, [1999] N.S.J. No. 60, 135 C.C.C. (3d) 377 (C.A.), applied by this court in R. v. Cameron, 2006 CanLII 16078 (ON CA), [2006] O.J. No. 1928, 208 C.C.C. (3d) 481 (C.A.), at paras. 21-22, 52. In R. v. Hart, Cromwell J.A. comprehensively reviewed Canadian, English and American authorities on this issue. Cromwell J.A. then concluded, at p. 410 C.C.C., that under both the common law and the Charter, "there is no short, dispositive aetest' for whether these rights [the right to a fair trial and the right to make full answer and defence] have been denied or to determine the proper response". Rather, the matter is "for the discretion of the trial judge taking account of all relevant considerations". Cromwell J.A. identified three general factors to be considered [at paras. 95, 101 and 108]: [page523]

(1) the reason for the unresponsiveness;

(2) the impact of the unresponsiveness; and

(3) the possibilities of ameliorative action.

We shall consider the application of these factors to the circumstances of the present case.

(i) Reason for the unresponsiveness

[24] Before admitting the evidence of a witness whom the accused has not had a full opportunity to cross-examine, the trial judge is required to consider the reason for the lack of response. As Cromwell J.A. explained in R. v. Hart, supra, at p. 410 C.C.C.: "The reason for the unresponsiveness is somewhat analogous to the necessity criterion for the admissibility of hearsay evidence. Before evidence is admitted without a full opportunity to cross-examine, there should be a valid and important reason for doing so." If the Crown is responsible for the witness's unresponsiveness or if the unresponsiveness can be blamed on the witness, that is a factor that weighs against admitting the evidence: see R. v. Hart at pp. 392-93 C.C.C. On the other hand, if the lack of response to cross-examination is due to illness, age, disability, or to the conduct of the defence, and the other factors are satisfied, there is a tendency to admit the evidence: see R. v. Hart at pp. 411-12; R. v. Cameron, supra, at para. 23; R. v. Yu, 2002 ABCA 305, [2002] A.J. No. 1552, 171 C.C.C. (3d) 90 (C.A.).

[25] In the case at bar, the reason for Chu's unresponsiveness was unclear. Chu had been in protective custody for over two years before he testified and there was some suggestion (but no evidence) that he suffered from mental illness. In his ruling and in his instructions to the jury, the trial judge stated that Chu's silence was the product of fear and strongly implied that Chu's fear was caused by the appellant. We agree with the appellant's submission that this was entirely speculative on the part of the trial judge. There was no evidence on the record to support the suggestion that the appellant was somehow responsible for whatever fears Chu may have had or for Chu's refusal to be cross-examined. Indeed, one would have thought that if Chu's silence was caused by his fear of the appellant, he would have clammed up before testifying that the appellant was the murderer.

[26] The trial judge also suggested that defence counsel precipitated Chu's silence by insisting on questioning Chu about being [page524] a police informer. This is difficult to reconcile with the fact that Chu volunteered his alleged informer status during his examination-in-chief. Moreover, although defence counsel did focus on the informer issue, Chu also refused to answer questions about other issues.

[27] In our view, to the extent that the trial judge based his ruling on attributing blame for Chu's unresponsiveness to the appellant, he erred. There was no evidence capable of supporting a finding that the cause of Chu's unresponsiveness was that the appellant had somehow threatened Chu or caused Chu to fear for his safety.

[28] There was also no evidence capable of supporting a finding that Chu's lack of response was due to illness, infirmity, or some other cause that would relieve Chu of blame. In the end, we are left with this situation: for some unexplained reason, for which neither the Crown nor the defence were responsible, Chu refused to be cross-examined. Blame or responsibility for this state of affairs can only be laid with Chu. This is a factor tending to support the exclusion of the evidence.

(ii) Impact of the unresponsiveness

[29] In R. v. Hart, supra, at p. 412 C.C.C., Cromwell J.A. explained: "The central considerations for the trial judge under this heading are the importance of the evidence to the case and whether there is a satisfactory basis, notwithstanding the unresponsiveness, upon which the trier of fact can evaluate the evidence." In R. v. Stretton and McCallion (1988), 86 Cr. App. R. 7 (C.A.), at p. 11 C.R., the English Court of Appeal held that the trial judge was correct in acknowledging the proposition that evidence should be ignored if the accused was deprived of the opportunity to probe and test a witness so as to enable the jury "to judge fairly of her credibility". The Court of Appeal described this approach as "a matter of common sense and fairness". The importance of the evidence in the case must also be considered. "The more important the evidence to the prosecution's case, the more reluctant the trial judge should be to allow it to be given without full cross- examination": R. v. Hart at p. 412 C.C.C.

[30] R. v. Hart, supra, like many cases in this area, dealt with a witness who initially responded to questions put on cross-examination, but then clammed up. The accused, therefore, was afforded only a limited right of cross-examination. In R. v. Cameron, supra, an expert witness died before his cross- examination was completed. It is common ground here that Chu's silence effectively denied rather than limited the appellant's [page525] right to cross-examination. Where the lack of a complete cross-examination leaves the trier of fact with an insufficient basis upon which to evaluate the evidence of the witness, the witness's evidence should be excluded. For example, in R. v. Wyatt, 1997 CanLII 12488 (BC CA), [1997] B.C.J. No. 781, 115 C.C.C. (3d) 288 (C.A.), at para. 56, "having concluded that the accused could not test the complainant's evidence on the central issue in the case, the only alternative was to issue a stay of proceedings".

[31] Chu was the Crown's key witness: without Chu's evidence, the Crown's case against the appellant was very thin. Chu's evidence was open to attack from a variety of perspectives. The appellant was deprived of the opportunity to cross-examine Chu on every crucial issue, including: his identification of the appellant as the shooter, his description of the events leading up to the shooting, his prior inconsistent statements, his prior relationship with and his animosity toward the appellant, and his prior criminal record and history of violence. Moreover, why did he insist on speaking only to a specific police officer in the hospital, and why was he intent on being admitted to the witness protection program? On the defence theory that Chu lured the victim to the place where he was shot, Chu himself was a suspect. Chu's silence deprived the appellant of the opportunity to probe any of these areas or to test Chu's credibility in any meaningful way.

[32] In his ruling to admit Chu's evidence and in his instructions to the jury, the trial judge minimized the prejudice to the appellant caused by Chu's refusal to be cross- examined. The trial judge's opinion was undoubtedly affected by his negative view of defence counsel's tactics and by the rancorous relationship that developed. The trial judge considered defence counsel's other cross-examinations to have been inept and ineffective and he concluded that even if Chu had been prepared to answer, the cross-examination would have gone nowhere.

[33] The trial judge also appears to have assumed that unless Chu completely resiled from his evidence-in-chief that the appellant was the shooter, the cross-examination would be ineffective. In his ruling he stated:

[T]here is but one issue in this case. The hard core of Chu's evidence is this: "I know the accused -- I have known him for sometime before the shooting -- I have driven him home. He was the person who shot me -- he is the one who shot my friend."

If Chu were to face the world's best cross-examiner for an unlimited period, I cannot imagine Chu backing off one iota from those assertions. He has been consistent and adamant since December 18, 1995. Why would he change now? [page526]

[34] We agree with the appellant that the trial judge erred by unduly minimizing the prejudice to the appellant caused by Chu's unresponsiveness. The trial judge's suggestion that any cross-examination of Chu was unlikely to produce a dramatic "Perry Mason" style cross-examination resulting in a complete capitulation by the witness is an entirely unrealistic standard. As we have observed, Chu's evidence was vulnerable to attack from many different directions and the Crown's case depended almost entirely upon the jury accepting his evidence. All the defence needed to do was to undermine Chu's credibility to the point of raising a reasonable doubt. Contrary to the trial judge's claim that he was taking a "common sense and realistic assessment of the likely impact of the cross- examination", he posited an unrealistic and unreachable standard that could rarely if ever be met. This, in our view, represents an error in principle that significantly undermines the basis for his ruling.

(iii) The possibility of ameliorative action

[35] The trial judge ruled that any prejudice to the appellant could be ameliorated by a proper instruction to the jury. For reasons more fully explained below, we conclude that the trial judge's instruction to the jury on this point was completely inadequate. Indeed, it is difficult to imagine any instruction, short perhaps of telling the jury that it had to disregard Chu's evidence entirely, that would be adequate in the circumstances of this case. Chu was the key witness, his credibility was vulnerable to attack from a variety of angles, and his silence effectively deprived the appellant of any right to cross-examine him.

Admissibility: Conclusion

[36] We accept the proposition that the decision to admit or exclude the evidence of a witness who has been unresponsive on cross-examination lies within the discretion of the trial judge. The issue is one that calls for a careful assessment of the reasons for admitting the evidence, the impact of the unresponsiveness, and the possibility of ameliorative action. That assessment is best left to the trial judge who is clearly in the best position to assess and weigh these factors and an appellate court must accord a substantial degree of deference to the trial judge's assessment.

[37] The trial judge's discretion, however, is not absolute and is subject to appellate review where there are errors in principle or palpable errors of fact in the trial judge's ruling which leads the appellate court to conclude that the ultimate goal of [page527] trial fairness was frustrated. We have identified what we regard as several serious errors that in our view undermine the trial judge's ruling to admit Chu's evidence. The trial judge unfairly placed the blame for Chu's silence on the appellant and minimized, to the point of entirely ignoring, the serious impact of Chu's unresponsiveness upon the appellant's right to a fair trial and right to make full answer and defence. As we explain in greater detail below, the trial judge seriously erred in his assessment of his ability to ameliorate the prejudice to the appellant.

[38] As we are of the view that the trial judge's deficient instruction to the jury on Chu's evidence is sufficient to warrant setting aside the conviction and ordering a new trial, it is neither necessary nor appropriate for us to say more on the subject of admissibility. We should add, however, that we agree with the appellant's submission that the likely consequence of excluding Chu's evidence would, in the particular circumstances of this case, have been to declare a mistrial.

(b) Did the trial judge fail to give an adequate jury instruction in relation to Chu's evidence?

(i) Chu's lack of responsiveness

[39] In his instructions to the jury regarding Chu's lack of responsiveness, the trial judge stated:

Are you satisfied in your own minds and sure that the cross- examination which defence counsel was able to do sufficiently probed and tested Mr. Chu's evidence so as to enable you to judge fairly of his credibility? If you conclude that the defence was deprived of the opportunity of properly testing and probing Chu's evidence, then you would simply set aside and ignore all of Chu's evidence as if he never came to the witness box. On the other hand, you may feel that during the time that Mr. Chu was answering questions put to him by Crown counsel and the questions put to Chu by the defence counsel that you did have a fair and complete opportunity of judging his credibility.

Before making that decision, which is for you alone to make as the judges of facts, you should, I think, consider this question:

When Mr. Chu's evidence is stripped down and all the non- essentials and collateral topics are put [sic] set aside, what is the essence of Mr. Chu's evidence?

It is simply this: I know Don Duong who shot at us, he was the one that shot me, I saw him, I recognize him, he shot me. That is the kernel of his evidence.

In deciding whether or not you are able to judge Chu's credibility, you should ask yourself this question:

Taking a common sense, realistic approach, would unlimited, further responsive cross-examination of Mr. Chu have caused Chu to resile from, [page528] back away from, his rock bottom evidence that: "I recognized Don Duong and he was the person who shot me." Remember it is a question for you to decide.

(Emphasis added)

[40] Any impact the first portion of this instruction might have had in cautioning the jury of the danger and unfairness of relying upon Chu's evidence in the absence of cross-examination was completely undermined by the rhetorical question posed by the trial judge in the italicized passage, above. To make matters worse, when he reviewed the evidence, the trial judge quoted from Chu's examination-in-chief but failed to mention Chu's refusal to answer questions on cross-examination. The trial judge effectively told the jury that it could safely assume that Chu's evidence would not have been shaken by cross- examination. The trial judge left the jury completely in the dark as to what an effective cross-examination might achieve by way of undermining Chu's credibility and raising a reasonable doubt. He repeated the error he made in his ruling when he posited the entirely unrealistic view that cross-examination would only be effective if it produced a complete capitulation by the witness.

[41] In our view, the trial judge's failure to properly instruct the jury as to the danger posed by Chu's failure to submit himself to cross-examination was a serious error that undermined the appellant's right to a fair trial and right to make full answer and defence. The trial judge had admitted Chu's evidence on the basis that any prejudice to the appellant resulting from Chu's unresponsiveness could be remedied by an appropriate caution to the jury. Yet, when the time came to give that caution, the trial judge failed to deliver on his promise. On this basis alone, we would quash the conviction and order a new trial.

(ii) Vetrovec warning

[42] The appellant does not raise the issue of the adequacy of the trial judge's Vetrovec warning as a distinct issue but asks us to consider the warning in conjunction with the instruction on the absence of cross-examination. The trial judge proceeded immediately from the portion of his charge relating to the lack of cross-examination to the impact of Chu's criminal record and unsavoury background:

Because of his criminal record, because Immigration Canada has designated him as dangerous, the law classifies him as a "disreputable character". As a result of that designation, I give you a warning that arises out of common sense. It is risky to take and accept the evidence of Mr. Chu unless you find support or confirmation elsewhere in the evidence. [page529]

Please do not misunderstand me. I am not saying that you must find confirmation, but I am saying it would be a wise course for you to follow.

Put another way, you may accept all, or part or nothing of what any witness may say. No matter who Mr. Chu may be, no matter what he may have done, you are free to say: I believe Chu when he tells me Don Duong was the one who shot him with Exhibit No. 5.

(Emphasis added)

[43] In view of the appellant's submission and our disposition of the previous issue, it is not necessary for us to consider whether this instruction would have by itself warranted appellate intervention. Suffice it to say that we agree with the appellant that this instruction compounded the problem we have already identified. The trial judge simply failed to articulate to the jury the very significant dangers posed by a disreputable witness with a serious criminal past who refused to submit himself to cross-examination. Having given a mild warning, the trial judge, in effect, told the jury to treat Chu's evidence as any other witness.

2. The admissibility of Cheech Sun's February 20th statement and related issues

Chronology relating to Sun's evidence

[44] As indicated earlier, Cheech Sun was working as a security guard at the Casa Blanca on the night of December 16. Sun's evidence was important to the Crown's case as it was the only evidence on the issue of motive.

[45] The following chronology suffices to put the discussion concerning the issue of the admissibility of Sun's February 20, 1996 statement into context.

-- Sun's first interview with the police was on January 20, 1996. He told them he did not recall any fight occurring at the club that night;

-- One month later, on February 19, he spoke to Patricia Quinton, a civilian employee at Police Headquarters, about an unrelated matter. He raised with her the moral dilemma of knowing about a crime but being afraid to talk to the police about it. Sun then stated that he had information about the murder at the Jun Jun, so Quinton put him in touch with Det. McGuire;

-- The next day, February 20, 1996, Sun met with Det. McGuire at headquarters for 45 minutes. Sun was neither told of the criminal consequences of making a false statement nor [page530] placed under oath. Det. McGuire did, however, tell Sun the importance of telling the truth. Sun did not want to be video or audiotaped and refused to review and sign Det. McGuire's notes. Det. McGuire wrote up the interview in three and a half pages of foolscap.

-- According to Det. McGuire, Sun told him that he was working at the Casa Blanca and heard of a problem over his radio. He went to the scene and found the appellant holding a towel up to his face, complaining "that fucking guy just punched me in the eyes". He said he was "gonna get him" and "kill the fucker". A friend of the appellant approached Sun and pointed out the man who had punched the appellant. Sun recognized him from other incidents at the club. After, he realized that he was the man killed later that night. The man had left the club before the appellant. The appellant told Christine (the appellant's girlfriend) and another woman to go home and then he left in a friend's car. According to Sun, as the appellant left he said, "See you later Cheech. Don't worry I'm gonna go kill this bastard." A few days later Sun saw "Duc", who told him that the appellant and John were in jail and wanted to know if "we" had said anything. Duc also told Sun that John "went down to the restaurant with them".

-- On several occasions over the next two years, Sun expressed reluctance to provide the police with further information or a more formal statement, claiming that he would fear for his life if he testified;

-- On April 14, 1998, Sun agreed to meet Det. McGuire again. He gave a videotaped statement under oath, after being cautioned. In this statement Sun said essentially what he was to say at trial -- he recalled few specifics of the evening but remembered some kind of incident involving the appellant in the washroom;

-- Following this statement Sun told Det. McGuire more than once that he intended to avoid testifying and was still scared. Just prior to being called as a witness at trial, he told Det. McGuire that someone close to the appellant (who was also under subpoena) had offered to pay for him to "go away for a while". Det. McGuire believed that this person was likely Andy Trinh.

[46] At trial, Sun testified that there was an altercation involving the appellant in the club washroom that evening. By the time [page531] Sun reached the washroom, the appellant was sitting on the edge of a pool table outside holding a towel to his face. Sun recalled that the appellant was angry, spoke of the dispute, and called the other participant a "fucking asshole". The Crown then showed him Det. McGuire's notes from his February 20, 1996 interview, whereupon Sun testified: "I don't remember what [the appellant's] words were. I guess he said: aeI want to kill this bastard.' " He added, however, that the appellant had calmed down by the time he was escorted from the club.

[47] The Crown then sought and received permission to cross- examine Sun as an adverse witness pursuant to s. 9(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5. By the end of his cross-examination by the Crown, Sun had adopted virtually all of the contents of his February 20, 1996 statement. Then, during his cross-examination by the defence, he reverted to where he had begun -- his memory was not refreshed by the contents of his statement. He added that he had a terrible memory, explaining that, "when people make a suggestion, I agree." It was at the end of this cross-examination that the Crown applied to have the February 20, 1996 statement admitted for the truth of its contents as a principled exception to the hearsay rule.

[48] During submissions on the application, the defence conceded that the statement met the test of necessity. The trial judge ruled that the prior statement made by Sun to Det. McGuire on February 20, 1996 was admissible for the truth of its contents. In considering the statement's reliability, the trial judge reviewed Sun's background, his relationship with the appellant and his contacts with Det. McGuire. He concluded that Sun had been afraid to implicate the appellant because of the latter's gang connections. He found that Sun had decided to "unburden his conscience" to Quinton but when he spoke to Det. McGuire, refused to provide a "formal statement" because he was afraid. According to the trial judge's ruling, in giving the statement in April 1998, Sun decided to take himself "out of play" by claiming to remember very little of the events. In this vein, the trial judge continued:

In the witness box, whether before the jury or on the voir dire, Sun denied any fear of anything at any time. In my view, Sun was afraid to admit that he was afraid and he is still afraid to admit fear.

He concluded:

I am quite aware of the general principles set out by Lamer, C.J.C. in K.G.B. regarding "reliability". I am aware that on February 20, 1996 there was no oath and there was no video or audio or signed statement. [page532]

I am also aware that Lamer, C.J.C. said at page 288 of K.G.B. that:

The question of reliability is a matter for the trial judge to be decided on the particular circumstances of the case.

In my view, the totality of the events of February 19, 1996 and February 20, 1996, the words and the actions of Mr. Sun before and since that time as disclosed on the voir dire, and notwithstanding the absence of an oath and the absence of a video or audio recording or a formal statement, Crown counsel has persuaded me, on a balance of probabilities, of the threshold reliability of Mr. Sun's February 20, 1996 statement.

The trial judge "took solace" in other evidence of reliability revealed through corroborating trial evidence. We will discuss some of this evidence shortly.

[49] During re-cross-examination, the Crown was given considerable latitude (over defence counsel's objections) and Sun once again changed his position, claiming to have a (refreshed) memory of virtually all of the contents of the February 1996 statement.

Necessity of addressing the issue

[50] No hearsay issue arises when a witness adopts an earlier out-of-court statement in court. As Charron J. stated in R. v. Khelawon, [2006] S.C.J. No. 57, 2006 SCC 57, at para. 38, when the out-of-court statement is adopted:

The statement itself is not evidence, the testimony is the evidence and it can be tested in the usual way by observing the witness and subjecting him or her to cross-examination.

[51] However, Sun's adoption of his statement at the end of his re-cross-examination by the Crown cannot be regarded in isolation. Having regard to the unusual sequence of events we have outlined, it is appropriate that we consider the admissibility of the February 20, 1996 statement for the truth of its contents. Had the statement not been admitted for its truth as an exception to the hearsay rule, it is doubtful that Sun would have finally adopted it.

The principled exception to the hearsay rule

[52] When no traditional exception to the hearsay rule applies, hearsay evidence can only be admitted under the principled exception to the hearsay rule. That rule requires the proponent to establish on a balance of probabilities both the necessity and reliability of the evidence sought to be admitted. In broad terms, the reliability requirement can generally be met on the basis of two [page533] different grounds. The first is where the circumstances in which the statement came about negate the possibility that the declarant was untruthful or mistaken: see e.g., R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, [1990] S.C.J. No. 81, 59 C.C.C. (3d) 92. The second is where there are circumstantial guarantees of trustworthiness, or an adequate substitute, allowing for sufficient testing of the evidence. Three circumstantial guarantees of trustworthiness are generally considered. They are the taking of an oath, recording of the statement by videotape so that the demeanour of the witness can be observed, and contemporaneous cross-examination. Where one of these circumstantial guarantees of trustworthiness is lacking, the court will want to ensure that an adequate substitute exists. For example, the availability of the declarant for cross- examination at trial or at the preliminary inquiry goes a long way to satisfying the requirement of an adequate substitute for contemporaneous cross-examination at the time the statement was made: see e.g., R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22, 79 C.C.C. (3d) 257 and R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, [1996] S.C.J. No. 117, 111 C.C.C. (3d) 129.

Grounds of appeal relating to the February 20, 1996 statement

[53] Three grounds of appeal arise from the trial judge's ruling admitting the statement to Det. McGuire as a principled exception to the hearsay rule. They are:

(i) the trial judge erred in ruling that the statement was substantively admissible;

(ii) having made his ruling after Sun's cross-examination was finished, he then refused a request to re-open the cross- examination; and

(iii) the trial judge erred by not instructing the jury to ignore the edited parts of the statement that they had heard.

For the reasons that follow, we agree with all three of these submissions and would give effect to this ground of appeal.

Standard of review

[54] In R. v. Merz (1999), 1999 CanLII 1647 (ON CA), 46 O.R. (3d) 161,[1999] O.J. No. 4309, 140 C.C.C. (3d) 259 (C.A.), at para. 49, Doherty J.A. summarized the standard of review for substantive admissibility of hearsay statements. In reviewing a trial judge's decision to admit evidence [page534] under the principled exception to the hearsay rule, this court, absent manifest error, must accept the findings of fact made by the trial judge on which the ruling is predicated. The court must, however, apply a correctness standard to the ultimate question of whether the trial judge properly applied the criteria relevant to the admissibility of the evidence to the facts as found by the trial judge: R. v. Hawkins, supra, at p. 160.

The indicia of reliability considered by the trial judge

[55] The following extract from the trial judge's ruling contains the further indicia of reliability that he found:

1. The events of February 19 and 20, 1996 were within two months of the offence.

2. There is no suggestion that there was any prompting of Mr. Sun by D/Sgt. McGuire or anyone else.

3. D/Sgt. McGuire, who was in charge of the prosecution of this case, believed what Mr. Sun told him.

4. There is no evidence that Mr. Sun had any motive to lie. He was not selling anything, he was not bartering anything, he was not trading anything.

5. Mr. Sun was a friend of the accused. He had no axe to grind.

6. Mr. Sun had special knowledge -- he was there -- he spoke to the accused that night.

7. There is no suggestion that Mr. Sun had the wrong person, nor the wrong date, nor the wrong time.

8. The statement given to D/Sgt McGuire on February 20, 1996 has internal consistency. There is no evidence of any collaboration by Mr. Sun with anyone.

9. The statement by Mr. Sun on February 20, 1996 is in sync with the evidence already given before the jury by the witnesses: Huynh, Chu, Termini, and the reported utterances of the deceased, Mr. Vo.

[56] The Crown concedes that the trial judge made three errors in the criteria he considered relevant to the admissibility of the evidence of Sun's alleged prior statement. The concessions and our comments on them are as follows. 1. The timing of the statement in relation to the events did not, as stated by the trial judge, make the statement more likely to be true. Unlike the situation in Khan, supra, the statement was not given so close in time after the incident in issue or under circumstances that it was likely to be inherently reliable. 2. The fact that the police officer believed Sun was irrelevant to the reliability of the statement; the police officer was not an independent third party. 3. The trial judge did not advert to the absence of any attempt by the police to bring [page535] home to Sun the consequences which could befall him if he was untruthful. Thus, it does not appear that the trial judge gave any weight to the absence of one of the circumstantial guarantees of trustworthiness in his ruling. The trial judge erred in law by considering totally irrelevant factors and further erred in not addressing an important criterion pertaining to admissibility.

[57] Contrary to the Crown's submission, we are of the opinion that the fact that Sun was present at trial and could be cross-examined did not, in the circumstances of this case, readily permit the jury to assess the reliability of his purported statement. As stated by this court in R. v. Conway (1997), 1997 CanLII 2726 (ON CA), 36 O.R. (3d) 579, [1997] O.J. NO. 5224, 121 C.C.C. (3d) 397 (C.A.), at paras. 27-29:

In KGB, Chief Justice Lamer confirmed that the lack of contemporaneous cross-examination is the most important of the hearsay dangers (p. 794 S.C.R., p. 293 C.C.C.). He noted that it is also the most easily remedied by the opportunity to cross-examine at trial.

And on the same issue, in U.(F.J.), supra, Chief Justice Lamer put it this way [at p. 116]:

When a witness takes the stand at trial and, under oath, gives a different version of the story than one previously recorded, doubt is cast on the credibility of the witness and on the truth of both versions of the story. This is what effective cross-examiners hope to achieve.

This case is different. There are not two versions. [The witness] did not give a different account at trial. There is the statement of December 11, 1994 and the statement at trial "I don't remember." How does cross-examination of the witness at trial afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement when the evidence of the witness at trial is "I don't remember"? Cross-examination becomes, to a large extent, an exercise in futility and does not serve as a substitute for contemporaneous cross-examination on the prior statement, as it does in most cases.

[58] In this case, the most important substitute for contemporaneous cross-examination, cross-examination of the witness at trial, was not possible most of the time Sun was in the witness box because he said he did not remember what was said on the night of the murder. While Sun purported to have a refreshed memory after the February 20th statement was admitted for the truth of its contents, we cannot overlook the fact that the trial judge then refused to allow the defence to re-open the cross-examination. Once the February 20th statement was admitted for the truth of its contents, the jury was, in effect, being asked to choose between Sun's contradictory trial evidence and what he had said in the February 20th statement. This meant that the intervening statement captured on videotape two years later in April 1998 acquired new significance. [page536]

[59] When Sun gave that videotaped statement and the police pressed him to recall the events recounted in his February 20th statement, he explained that he had seen no need for precision at the time. He described his earlier statement as a "pretty accurate account" that he had recounted during a "general conversation" and at one point said he did not recall the exact words spoken. The defence ought to have been able to use the videotaped April 1998 statement to counteract the admission of the February 20, 1996 statement for the truth of its contents and to have the entire videotape admitted into evidence. The effect of the trial judge's refusal to allow the defence to do so was to allow the Crown to split its case without the defence having an opportunity to respond. As Sun's memory had been refreshed, fairness dictated that the defence be allowed to re- open the cross-examination.

[60] A further error occurred with respect to the February 20th statement. A portion of Sun's unedited prior statements contained double hearsay that Sun attributed to Duc. Sun claimed that Duc told him that the appellant and John Pham had gone to the Jun Jun restaurant after leaving the Casa Blanca. The trial judge initially refused to edit the statements on the basis that the double hearsay comments could not be cleanly edited and promised to deal with the problem by way of a direction to the jury. The jury heard the statements in full and was given a copy of Det. McGuire's complete written notes. After the Crown's re-examination of Sun, the trial judge ruled that the notes could not be filed as an exhibit and ruled the statements that Sun attributed to Duc inadmissible. Nevertheless, the trial judge refused to give an immediate instruction on the non-evidentiary status of the edits. Instead, in the absence of the jury, he had the copies of the statements retrieved from the jury room or from the courtroom. He only told the jury that a legal ruling had necessitated the retrieval of their copies of Det. McGuire's notes of the interview. In his closing address, the Crown referred to the impugned passages that had been edited out, making the need for the promised instruction by the trial judge all the more important. The trial judge gave no limiting instruction in his charge to the jury, nor did he correct the Crown's erroneous references to the unedited portion of the statements. The general instructions that the trial judge did give concerning hearsay did not equip the jury to deal with the hearsay in the February 20, 1996 statement they had heard or the Crown's references to the passages that had been edited out.

[61] Finally, during their deliberations the jury asked to hear Sun's entire videotaped April 14, 1998 statement but could not since only parts of it had been put to Sun. The trial judge's [page537] response to the jury's request was not responsive to their actual question, and his references to the decision in KGB were not an appropriate response.

[62] We note that the Supreme Court's decision in Khelawon, supra, which modified to some extent the principled exception to the hearsay rule, was released towards the end of argument in this appeal but was not the subject of substantive submissions by counsel. In view of the errors we have identified, the analysis mandated by Khelawon would make no difference to this appeal. The admissibility of Sun's February 20th statement may or may not be an issue at the new trial we order here. If it is an issue, the admissibility of the February 20, 1996 statement will be for the trial judge to determine on the basis of the Khelawon approach and the record and evidence led at the new trial.

Conclusion

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

3. The third party suspect testimony

[64] Briefly stated, it was alleged by the defence that there was police material that showed that members of the To family had threatened the deceased's brother with respect to a debt owed by a member of the To family to the deceased's brother. Several members of the To family had violent criminal records and one member of the family had been arrested and charged with assault with a weapon against the deceased's brother. By the time of Tommy Vo's murder, the debt owed to his brother had resulted in violence, threats, a criminal prosecution and attempts to obstruct justice. Tommy Vo had been involved in discussions with members of the To family. There was also evidence that a man seen near the scene of the shooting resembled a member of the To family.

[65] The defence, therefore, wished to present this evidence to the jury in order to suggest that someone else had a possible motive or animus to kill the deceased.

[66] The trial judge ruled that the third party suspect evidence was not admissible as it was not sufficiently connected by other circumstances with the crime to give the proffered evidence some probative value: see R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 7 O.R. (2d) 750, [1975] O.J. No. 2247, 23 C.C.C. (2d) 160 (C.A.), affd 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824, [1977] S.C.J. No. 32, 33 C.C.C. (2d) 360.

[67] We agree with both counsel that, on this record, this defence is not well flushed out and this court need not decide this issue. [page538]

4. The post shooting evidence

[68] The appellant was arrested three days after the shooting.

[69] The Crown introduced a body of evidence in relation to the search for the appellant after the shooting and up to the time of his arrest. Several police witnesses were permitted to describe the progression of the investigation leading to the appellant's arrest. The following are but a few examples of the evidence given by police witnesses at trial:

[A police officer] advised me that he had two addresses covered at that point . . .

He asked me to get in touch with Peel Regional Police to have them assist us in checking the address . . .

I was advised that surveillance was on a suspect that was believed to be involved in a shooting . . .

The additional information I have is that this person was possibly in hiding at a friend's residence by the name of Pham . . .

I received a call back from another detective . . . He passed information to me that they checked . . . the house . . .

That morning at Headquarters I contacted the United States Customs regarding border crossings . . . I was concerned about flight . . . and [the officer] indicated he would check and let me know if anything came up.

I had discussion with [a detective], and he advised me he had officers watching a number of addresses.

I was advised that [a police officer] has spoken to Victor, the brother of the accused, and . . . he indicated, the accused, his brother, was not present at that time, and he would attempt to locate him and phone back . . .

I received information from one of the units that were doing closer observation on the house . . .

Q. Did you ever have your gun out?

A. Yes, I did.

We received information they had chased one of these persons, and the observation they made was that he had his hand under his coat at the time . . .

We put a call into the Tactical Unit . . . and asked them to bring a [police] dog.

Q. The one that was not [apprehended], who did you suspect that to be?

A. I suspected that to be the accused, based on information.

I believe what they used [while searching for the accused] is a closed circuit camera on a pole for safety purposes and stick it up into the roof . . .

I received information from them that Mr. Trinh had advised them he would point out a house as to where [the accused] lived . . . [page539]

Q. What is the procedure if someone goes in the United States in terms of the arrest warrant?

A. We would get extradition there and be dealt with the United States Marshalls.

Mr. Trinh advised me that was a page that he had received on his own pager, which he interpreted or knew to be a code for John Pham . . .

I received a return call from a security officer a Cantel Security . . . she also suggested I speak to someone at our Intelligence Bureau in regards to what she called a "CCS7 trap" . . .

I was advised . . . by him [a detective] that they had observations on that address on Driftwood, and that the Emergency Task Force was on the way to that address.

My understanding, they had all been extricated from Mr. Pham's house by the Emergency Task Force, and they were being investigated for being an accessory to [the accused], in not co-operating and harbouring him in the house.

He was wearing a coat at the time as we heard from [police officer] that he had identification belonging to the accused . . .

Q. . . . What was your belief as to this "John" that was arrested for accessory having a connection with [the accused]?

A. I believe that to be the same person that Cheech Sun was referring to.

[70] On numerous occasions the defence objected, unsuccessfully, to this evidence on the grounds that it was irrelevant, hearsay and/or not admissible as narrative, that it was prejudicial and had no probative value. The trial judge held the evidence admissible as part of the narrative.

[71] Much of this evidence was hearsay and ought not to have been led or admitted. The persons referred to in the evidence of the police officers were never called as witnesses. This evidence was highly prejudicial. It had little or no relevance to the murder and only served to inflame the jury.

[72] This issue is much simplified as the Crown acknowledges that the "narrative" rule did not apply and much of this evidence was hearsay, double hearsay and unsupported opinions. None of it came within any recognized hearsay exception.

[73] In its closing address, the Crown reviewed this evidence in detail as consciousness of guilt. The Crown referred to the "man-hunt", the contact with U.S customs regarding border crossings because of flight concerns, Det. McGuire's foot chase with his gun drawn, the use of police dogs, and the investigation of Andy Trinh and John Pham for harbouring the accused and assisting him to avoid justice. This evidence and the Crown's closing address were bound to prejudice the appellant in the eyes of the jury. It created the aura of a dangerous man at large trying to evade capture being hunted down by a relentless police force. [page540]

[74] As if this was not enough, the trial judge, having let the evidence in, did not give the jury any limiting instruction on its use or correct the Crown for using the evidence to suggest consciousness of guilt. As a result, there was an inevitable risk that the jury would rely on this evidence as circumstantial evidence of guilt.

[75] The ultimate responsibility for the admission of this evidence rests with the trial judge. However, Crown counsel (not counsel on the appeal) must share some of the blame for the introduction of this evidence.

[76] In R. v. Ranger (2003), 2003 CanLII 32900 (ON CA), 67 O.R. (3d) 1, [2003] O.J. No. 3479, 178 C.C.C. (3d) 375 (C.A.), this court dealt with a situation where the trial judge permitted the Crown to call after-the-fact evidence that was highly prejudicial and of no probative value. Although the trial judge instructed the jury to disregard the evidence in regard to consciousness of guilt, he failed to instruct them that they should not consider this evidence at all. Further, having taken the evidence away from their consideration on the issue of consciousness of guilt, he nonetheless brought the evidence back for the jury's consideration when he later reviewed the Crown's overall position. The court gave effect to this ground of appeal.

[77] The error in the present case is far more flagrant. The review of the inadmissible evidence was done by the Crown, but the trial judge did not give any instruction on its use. By failing to correct the Crown, the trial judge implicitly approved of the position taken by the Crown in his closing. The general instruction on hearsay given to the jury did nothing to remedy the prejudice to the appellant. The jury would not have known how to use this evidence.

[78] The admission of this evidence is an unusual example of an experienced trial judge ignoring the basic rules of evidence. This ground alone would necessitate a new trial

5. The tenor of the proceedings and the charge to the jury

(a) The tenor of the proceedings

[79] During a pre-trial motion, the trial judge, on his own initiative, investigated defence counsel's other court commitments. Not surprisingly, counsel concluded that the trial judge's actions were a challenge to counsel's ethics. This incident led to a recusal application which was dismissed. It would have been preferable if the trial judge, rather than initiating his own inquiries, had raised the issue with counsel to allow him to place the necessary materials before the court. [page541]

[80] Thereafter, the situation did not get any better. Hostile exchanges between defence counsel and the trial judge continued throughout the pre-trial motions and the trial, in the absence and in the presence of the jury. Although cautioned numerous times, defence counsel was frequently difficult, argumentative, verbose, repetitive, self-righteous and even insufferable. On the other hand, the trial judge was dismissive, mocking and critical of the defence and, at a personal level, showed discourtesy and sarcasm. The trial judge and defence counsel demonstrated a palpable dislike for each other and the rancour, lack of civility and the mutual hostility carried on throughout the trial.

[81] In R. v. Snow (2004), 2004 CanLII 34547 (ON CA), 73 O.R. (3d) 40, [2004] O.J. No. 4309, 190 C.C.C. (3d) 317 (C.A.), this court considered the trial judge's responsibility where an "unfortunately acrimonious relationship" between the trial judge and defence counsel developed. At para. 23, this court stated:

It is apparent from the transcript that the trial judge at times became very frustrated with what he regarded as the truculent and obstreperous conduct of defence counsel, an assessment that certainly could not be described as ill- founded. Some of the trial judge's comments could only be described as insulting and demeaning. While one can appreciate the trial judge's annoyance with defence counsel's conduct, it would have been preferable had he not risen to the bait. However annoying or irritating counsel may become, the trial judge at all times should control proceedings with judicious demeanour.

These words are appropriate in the present case.

[82] In light of our disposition of this appeal, it is not necessary to say more. In closing on this issue we would adopt the words of Crown counsel that "the administration of justice cannot be proud of the conduct exhibited by the trial judge and defence counsel in this trial".

(b) The charge to the jury

[83] The appellant takes issue with numerous parts of the charge to the jury. The appellant points to the following examples:

Because, the trial judge felt that defence counsel had made unjustified criticisms of Crown counsel in his address to the jury, the trial judge stated: "Crown counsel had no right of reply. Nor does he have any right to sue for libel and slander." This comment had no place in a jury charge.

In his address to the jury, defence counsel on three occasions mentioned the "Goddess of Justice" and on two occasions unfurled a picture with a purple background of "Justicia", the Goddess of Justice. In his charge, the trial judge told the jury:

It is true that the Goddess of Justice is always portrayed as being blindfolded to symbolize equal justice to every person. However, may I remind you, that the Goddess of Justice is never portrayed as being stupid. [page542]

From this remark, the jury would likely not have been left in doubt where the trial judge stood in this case.

When instructing the jury on how to assess the evidence of witnesses the trial judge asked the rhetorical question: "How did you view the cross-examination? . . . Was it muckraking for the sake of muckraking?" This comment was sarcastic and intended to ridicule the defence.

The trial judge referred to "red herrings" and listed three cross-examinations in this regard. This matter should have been left for the jury to decide.

The review of the evidence in support of the prosecution is far more extensive than the evidence in support of the defence.

Every criticism made in the charge is directed to defence counsel or to the defence.

There is no criticism of the prosecution.

The Crown's position is that when read as a whole the charge was fair.

[84] We have in mind that the charge to the jury is the central feature in any jury trial. In the context of our adversarial process, its strength lies in its objectivity. There is no justification for jury charges that are not even- handed: see R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481, [2004] O.J. No. 4880, 191 C.C.C. (3d) 289 (C.A.).

[85] This issue is not without merit. However, as was the case for the previous issue, in light of our disposition of this appeal, it is not necessary to resolve it.

6. The trial judge's directions on the burden (standard) of proof

[86] The trial judge stated that reasonable doubt "is not a capricious or frivolous doubt concocted by an irresponsible juror to avoid his or her plain duty". This court has found a similar instruction, regarding the "timid" juror, to be fraught with risk because it could carry the implication that "jurors who acquit are timid and may be avoiding their responsibilities, while courageous jurors convict": R. v. Karthiresu, 2000 CanLII 6008 (ON CA), [2000] O.J. No. 309, 129 O.A.C. 291 (C.A.), at p. 293 O.A.C. Similarly, the trial judge's direction might suggest that an "irresponsible juror" is likely to acquit. Language such as this that might confuse the meaning of reasonable doubt or the role of the jury ought to be avoided.

[87] The trial judge used phrases such as, "in our daily activities, we act on reasonable grounds" and "such a reasonable degree of certainty as men and women are daily accustomed to regard as sufficient in the most important concerns of life". The Supreme Court of Canada has disapproved of terminology that [page543] tends to equate the standard of proof beyond a reasonable doubt with the standards by which people make everyday decisions. In R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, [1997] S.C.J. No. 77, 118 C.C.C. (3d) 1, at para. 24, Cory J. stated:

Ordinarily even the most important decision of a lifetime are based upon carefully calculated risks. They are made on the assumption that certain events will in all likelihood take place or that certain facts are in all probability true. Yet to invite jurors to apply to a criminal trial the standard of proof used for even the important decisions in life runs the risk of significantly reducing the standard to which the prosecution must be held.

Indeed, to liken reasonable doubt in any way to daily activities weakens the special significance of the criminal standard of proof unique to the legal process.

[88] The trial judge also stated:

If, at the end of the whole case and after considering all of the evidence, you are unable to make up your mind that the offences charged are committed, then you must say: "Not guilty". If you find beyond a reasonable doubt that the offences charged were committed, but you are unable to make up your minds that the offence was committed by Tien Dung Duong, you will have to acquit him because the Crown has not proved its case beyond a reasonable doubt.

The reasonable doubt standard should not be equated to being "unable to make up your mind" that the accused is guilty.

[89] The duty of the jury was to decide whether a crime had been committed and, if so, whether the accused committed that crime. The trial judge went on to state:

If through undue sympathy or other improper cause, you, the jury, fail to do your duty and give effect to the laws that have been passed for the benefit of all of the people in Canada, what would be the eventual result? A state of uncertainty, confusion, injustice, lawlessness, and indeed, anarchy would eventually engulf us all.

The juxtaposition of the jurors' duty to decide whether the accused committed the crime with the anarchical result if they failed in that duty imparted the unfortunate suggestion that the jury might have a "duty" to convict. Language that might lend this impression should be avoided.

[90] The trial judge used a variety of language in his direction on the standard of proof that should best be avoided out of concern that it might confuse the meaning of reasonable doubt in the minds of the jury.

[91] Given that a new trial will be ordered on the basis of other grounds, it is not necessary to decide if, in the context of the whole jury charge, these flaws would have required a new trial. [page544]

Disposition

[92] We agree with counsel that as the appeal is allowed, the proper disposition is to direct a new trial.

[93] We would be remiss if we did not thank Mr. Lockyer and Ms. Maunder for the appellant and Ms. Wheeler for the Crown for their excellent, fair and very helpful submissions.

Appeal allowed.