R. v. Van

92 O.R. (3d) 462

Court of Appeal for Ontario,

Winkler C.J.O., Sharpe and Juriansz JJ.A.

May 14, 2008

Criminal law -- Trial -- Charge to jury -- Accused attacking integrity of police investigation -- Lead police investigator giving evidence about steps taken by police in investigating offence including hearsay and opinion evidence including his personal opinion that accused guilty -- Accused's appeal from conviction allowed -- Given attack on investigation was permissible to adduce narrative evidence regarding investigation -- Trial judge erring in failing to instruct jury that officer's evidence was to be used only as narrative to explain how investigation proceeded and that officer's opinion and hearsay and sources undisclosed to jury alluded to by officer were inadmissible as proof of guilt -- Majority concluding serious error given that jury may have concluded that officer possessing additional proof of guilt that was not adduced at trial -- Omission of limiting instruction fatal to verdict notwithstanding failure of accused to object at trial -- Not appropriate to apply proviso as two prior mistrials indicating conviction not inevitable verdict but for error -- Stay of proceedings entered -- Accused's appeal from conviction allowed.

Criminal law -- Appeals -- Proviso -- Given attack on integrity of police investigation, permissible to lead hearsay evidence as part of narrative regarding how investigation proceeded -- Senior investigation officer's evidence including personal opinion that accused guilty based on investigation and "the information I received" -- Permissible [page463] to adduce hearsay as part of narrative to explain investigation but crucial that jury be given proper limiting instruction regarding limited use of evidence -- Trial judge erring in failing to instruct jury that officer's evidence was to be used only as narrative and not admissible as proof of guilt -- Senior police officer's evidence could have led jury to conclude officer knew of additional evidence proving guilt that was not adduced at trial -- Notwithstanding failure of accused to object at trial, absence of limiting instruction fatal to verdict -- Given two prior mistrials cannot find that verdict would necessarily have been same but for trial judge's error -- Stay of proceedings appropriate remedy given three prior trials.

The accused was convicted of attempted murder, robbery and forcible confinement. Two earlier trials had resulted in mistrials due to hung juries. The police had originally suspected that the crime might have involved the collection of a gambling debt, but they rejected that theory when the victim identified the accused as his assailant. N, the police officer who led the investigation, testified at trial in order to explain the steps the police had taken to investigate the attack and to satisfy the jury that the crime had been properly investigated and that the search for the victim's attacker had been thorough. Significant aspects of N's evidence as to how the investigation proceeded were based upon hearsay or unidentified sources, and at various points in his evidence, N offered his personal opinion as to the accused's guilt. Specifically, he testified that he believed that the accused was guilty "based on all the information [he] received". The trial judge did not give a limiting instruction with respect to N's evidence. The accused appealed his conviction.

Held, the appeal should be allowed.

Per Sharpe J.A. (Juriansz J.A. concurring): As the defence attacked the integrity of the investigation, the Crown was entitled to lead evidence about the police investigation that included hearsay evidence as part of the narrative necessary to explain how the investigation proceeded. However, a limiting instruction was required. The trial judge should have cautioned the jury that N's evidence was to be used only as narrative to explain how the investigation proceeded and that the hearsay and the sources undisclosed to the jury that were used by N to further the investigation, as well as N's opinion, were not admissible to prove the accused's guilt. It was particularly troubling that, as a result of N's references to "information that unfolded" and "information that I received", the jury might have assumed that N had evidence inculpating the accused that had not been presented at trial. The jury should have been warned against drawing that inference. The lead investigator's evidence that he had other information not disclosed to the jury inculpating the accused would well have affected the jury's assessment of the evidence.

This was not an appropriate case for the application of the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. The error regarding N's evidence was not "minor" or "harmless", and given the two prior hung juries, it was clear that the verdict would not necessarily have been the same but for the error. Given that the accused had already had three trials, a stay of proceedings was the appropriate remedy.

Per Winkler C.J.O. (dissenting): The trial judge erred in failing to caution the jury with respect to N's evidence. However, this was an appropriate case for the application of s. 686(1)(b)(iii) of the Code. The absence of a limiting instruction did not result in the jury using N's evidence for an improper purpose in a way [page464] that was prejudicial to the accused. N's references to "information that unfolded" and "information that I received" would not have left the jury with the impression that he was referring to inculpatory evidence that was not disclosed to the jury. Moreover, a limiting instruction would not have affected the verdict returned on the totality of the evidence by the otherwise properly instructed jury. In juxtaposition to the compelling nature of the evidence implicating the accused, the almost total absence of any evidence from the accused to counter or negate the material facts made it implausible that the absence of the caution could have had any impact on the ultimate verdict.

APPEAL from the conviction entered by Brennan J. of Superior Court of Justice, sitting with a jury, on April 10, 2003 and the sentence imposed on May 5, 2003 for attempted murder, robbery and forcible confinement.

Cases referred to R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129, [1994] S.C.J. No. 5, 111 D.L.R. (4th) 48, 162 N.R. 280, J.E. 94-241, 69 O.A.C. 26, 87 C.C.C. (3d) 289, 27 C.R. (4th) 1, 22 W.C.B. (2d) 144; R. v. Dhillon, 2002 41540 (ON CA), [2002] O.J. No. 2775, 161 O.A.C. 231, 166 C.C.C. (3d) 262, 5 C.R. (6th) 317, 54 W.C.B. (2d) 592 (C.A.); R. v. Haroun, 1997 382 (SCC), [1997] 1 S.C.R. 593, [1997] S.C.J. No. 35, 147 D.L.R. (4th) 197, 209 N.R. 6, J.E. 97-665, 115 C.C.C. (3d) 261, 6 C.R. (5th) 392, 34 W.C.B. (2d) 47; R. v. Khan, [2001] 3 S.C.R. 823, [2001] S.C.J. No. 83, 2001 SCC 86, 207 D.L.R. (4th) 289, 279 N.R. 79, [2002] 3 W.W.R. 1, J.E. 2002-24, 160 Man. R. (2d) 161, 160 C.C.C. (3d) 1, 47 C.R. (5th) 348, 51 W.C.B. (2d) 446; R. v. L. (A.), 2004 32136 (ON CA), [2004] O.J. No. 1165, 185 O.A.C. 313, 183 C.C.C. (3d) 193, 61 W.C.B. (2d) 158 (C.A.); R. v. Mallory, [2007] O.J. No. 236, 2007 ONCA 46, 220 O.A.C. 239, 217 C.C.C. (3d) 266, 72 W.C.B. (2d) 792; R. v. Parrington, 1985 3610 (ON CA), [1985] O.J. No. 1135, 9 O.A.C. 76, 20 C.C.C. (3d) 184, 14 W.C.B. 138 (C.A.); R. v. R. (M.), 2005 5845 (ON CA), [2005] O.J. No. 883, 195 C.C.C. (3d) 26, 64 W.C.B. (2d) 239 (C.A.); R. v. S. (P.L.), 1991 103 (SCC), [1991] 1 S.C.R. 909, [1991] S.C.J. No. 37, R. v. Tat (1997), 35 O.R. (3d) 641, [1997] O.J. No. 3579, 103 O.A.C. 15, 117 C.C.C. (3d) 481, 14 C.R. (5th) 116, 35 W.C.B. (2d) 464 122 N.R. 321, J.E. 91-835, 90 Nfld.&P.E.I.R. 234 64 C.C.C.(3d) 193, S.C.R. (4th) 351, 1991 103, 12 W.C.B. (2d) 705 (C.A.); R. v. Tran, 1994 56 (SCC), [1994] 2 S.C.R. 951, [1994] S.C.J. No. 16, 117 D.L.R. (4th) 7, 170 N.R. 81, 133 N.S.R. (2d) 81, 92 C.C.C. (3d) 218, 32 C.R. (4th) 34, 23 C.R.R. (2d) 32, 24 W.C.B. (2d) 308; R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 122 N.R. 277, J.E. 91-603, 46 O.A.C. 352, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302, 12 W.C.B. (2d) 551 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii) [as am.]

Joseph Wilkinson and Philip Norton, for appellant. John McInnes, for respondent.

The judgment of the court was delivered by

[1] SHARPE J.A. (JURIANSZ J.A. concurring): -- The appellant was convicted of attempted murder, robbery and forcible confinement after a 17-day trial before a judge and jury. Two earlier trials had resulted in mistrials due to hung juries. The appellant [page465] was sentenced to seven years' imprisonment in addition to seven years' credit for time served. He appeals both his convictions and sentence.

Overview

[2] The appellant and the victim, Jack Kong, were acquainted through their attendance at casinos and mah-jong gaming houses. On December 20, 2000, the appellant and Kong went to Casino Niagara together in the appellant's van. They returned early on the morning of December 21. Sometime later that day, Kong was stabbed in his apartment and robbed of a substantial quantity of cash. Kong was initially unable to communicate effectively with the police, who initially suspected that the crime might have involved the collection of a loan-shark debt associated with Kong's illegal gambling activities. However, Kong subsequently identified the appellant as his assailant. The appellant testified and admitted that he had gone to the casino with Kong and that on the day of the attack, he had gone to the appellant's apartment to deliver some food, but he denied any involvement in the crime. In his defence, the appellant relied on the loan-shark theory that the police had rejected following Kong's identification of the appellant. The appellant also introduced evidence as to his whereabouts on December 21 that contradicted certain aspects of Kong's evidence as to the events that transpired on the day of the crime.

Issues

[3] The appellant raises three grounds of appeal from conviction, all of which concern the trial judge's instructions to the jury: (1) Did the trial judge err by failing to relate how the burden of proof and the presumption of innocence applied to the evidence in favour of the appellant, including the alibi evidence? (2) Did the trial judge err in his charge by failing to give a limiting instruction with respect to the evidence of Detective Nealon? (3) Did the trial judge err by failing to instruct the jury on the use or non-use of prior consistent and inconsistent statements? (4) If there was an error, does the curative proviso (s. 686(1) (b)(iii) [of the Criminal Code, R.S.C. 1985, c. C-46]) apply? [page466]

Facts

[4] The victim, Jack Kong, made his living from legal and illegal gambling. He regularly kept a substantial quantity of cash at his apartment. The appellant and Kong had been gambling associates for almost 20 years.

[5] On the evening of December 20, 2000, the appellant drove Kong in his van to Casino Niagara. They separated at the casino and played different games, although Kong testified that they had been together near the end of the evening when he was involved in a baccarat game. Kong had a successful evening and cashed out at around 3:00 a.m. After eating together at the casino café, the appellant and Kong began their return trip in the appellant's van at some point between 3:15 and 4:00 a.m. On the way back to Toronto, the van had a flat tire. While the tire was being changed, Kong sustained an injury to his head.

[6] According to Kong, he was hit on the head with a hammer- type tool that the appellant was using. Kong testified that the appellant apologized and explained that the tool had slipped from his hand and, at the time, Kong accepted this explanation. The appellant denied striking Kong either intentionally or accidentally. He agreed, however, that Kong had sustained an injury to his head from which he was bleeding, but the appellant denied any knowledge of the cause of that injury.

[7] Kong testified that the appellant dropped him off at his apartment at 10:30 or 11:00 a.m., although he agreed under cross-examination that it was possible that his prior estimate of 7:00 a.m. -- the time he had given at the preliminary inquiry -- could have been accurate. The appellant told him he was going to buy some herbal medicine to help stop the bleeding. The appellant returned with the medicine and assisted Kong in applying it to his head and then left the apartment. According to Kong, sometime later in the day, the appellant again returned to the apartment with some food. After Kong ate the food, the appellant told him that he was going to apply further medication. Kong testified that he went and lay face- down on the bed to allow the appellant to do so, at which point the appellant stabbed him in the back three times. A struggle ensued and the appellant then held a knife to Kong's throat and demanded money. Kong gave the appellant some money.

[8] The appellant then bound Kong's hands and feet with a telephone cord from the apartment, disabled Kong's cellphone and washed his hands and the knife in the sink. When Kong told the appellant to leave and that he would not call the police, the appellant struck him in the face with a frying pan and told him to [page467] shut up. The appellant put a plastic bag in Kong's mouth, covered his face with a pillow, and threatened to stay unless Kong "fainted away". Kong pretended to be unconscious. The appellant removed the pillow and kicked Kong in the knee and stomped on his groin. Kong managed to feign unconsciousness and the appellant left him under a mattress, taking whatever other money he could find in the apartment.

[9] After the appellant left, Kong lost consciousness for an undetermined period and then struggled out of his apartment into a hallway of his building, where he was found by a neighbour who called the police shortly after 6:30 p.m.

[10] Kong suffered life-threatening injuries and, according to the medical evidence, it was "remarkable" that he survived. Kong's assailant inflicted multiple stab wounds to his chest, abdomen, liver, back, neck, left arm and right hand. He also had two collapsed lungs, and the police could not speak to him until January 2, 2001, because of his intubation.

[11] The appellant gave a very different version of the events of December 21. He testified that he dropped Kong off at Kong's apartment at 7:00 a.m. and then went home. He arranged to drive his daughter to school and then called Kong to see how he was and whether he needed to go to the hospital to attend to the injury he had sustained to his head on the return trip from the casino. After dropping his daughter off at school, he stopped at a restaurant at Kong's request to pick up some food, which he took along with some medicine to Kong's apartment. He assisted Kong with some cooking but remained in the apartment for only around 15 minutes. According to the appellant, that was the only time he returned to Kong's apartment. He denied attacking Kong or robbing him and testified that after the visit with the food and medicine, he did not see Kong again that day.

[12] After he left Kong's apartment, the appellant testified that he picked up his ex-wife at her home and dropped her off at an employment resource centre, returned home at about 10:00 a.m. and then went to sleep. The appellant had no prior criminal record.

[13] The appellant's ex-wife, Le Hoa Du, testified. While her version did not precisely coincide with that of the appellant, it did support significant elements of the appellant's account of his movements on the morning of December 21. Du testified that the appellant came to her house between 7:45 and 8:00 a.m. to pick up their daughter and drive her to school. According to Du, at about 9:00 a.m., the appellant, Du and their daughter all left together. They dropped the daughter off at school and the appellant then dropped Du off at the resource [page468] centre. The resource centre's records indicate that Du signed in on December 21 at 10:10 a.m.

[14] Cellphone records indicate that the appellant made several calls to Kong between 8:20 and 8:23 a.m. on December 21, a call to his wife at about 8:50 a.m. and a call to an unidentified person at around 4:00 p.m. from a location close to the place from which he had called Kong earlier that morning.

[15] The investigating officers, some of whom had experience in the Special Task Force on Organized Asian Crime, initially suspected that the attack may have been retribution from a loanshark and directed the investigation at Kong's gambling connections. However, after Kong identified the appellant as his assailant, the police essentially abandoned the loan-shark theory and focused their attention on the appellant as the main suspect.

Analysis

Issue 1: Did the trial judge err by failing to relate how the burden of proof and the presumption of innocence applied to the evidence in favour of the appellant, including the alibi evidence?

[16] The trial judge gave the instruction mandated by R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 63 C.C.C. (3d) 397 that dealt only with the appellant's evidence, but said nothing about any other evidence called by the appellant, including the evidence of Du and the cellphone records that corroborated his version of the timing of his comings and goings on the morning of December 21:

If you believe Mr. Van's evidence that he did not commit the offences charged, you must find him not guilty.

Even if you do not believe Mr. Van's evidence, if it leaves you with a reasonable doubt about his guilt or about an essential element of the offence charged, you must find him not guilty.

Now even if Mr. Van's evidence does not leave you with a reasonable doubt of his guilt or about an essential element of the offence charged, you may convict him only if the rest of the evidence that you do accept proves his guilt beyond a reasonable doubt.

[17] The appellant submits that Du's evidence was crucial to his defence, virtually amounting to an alibi, and that the trial judge err by failing to make it clear that the second and third stages of the W. (D.) analysis are not limited to the evidence given by the accused and that any evidence called by the defence that is capable of raising a reasonable doubt should be considered. [page469]

[18] I do not agree that the evidence of Du amounted to an alibi defence sufficient to trigger an instruction along the lines mandated by R. v. Parrington, 1985 3610 (ON CA), [1985] O.J. No. 1135, 20 C.C.C. (3d) 184 (C.A.). At best, Du's evidence contradicted Kong's timing of the return from Niagara as occurring at 10:30 or 11:00 a.m., and established that the appellant was involved in transporting his daughter to school and Du to the resource centre between 9:00 and 10:00 a.m. Kong testified that the attack occurred later in the day and, given the evidence that Kong narrowly escaped death after being found at 6:30 p.m. with life-threatening injuries, it is very likely that his assailant attacked him much later than 10:00 a.m. This means that Du's evidence did not amount to an alibi or to evidence "determinative of the final issue of guilt or innocence of the accused": see R. v. R. (M.), 2005 5845 (ON CA), [2005] O.J. No. 883, 195 C.C.C. (3d) 26 (C.A.), at para. 31.

[19] That said, the trial judge should have instructed the jury that at the second and third stages of the W. (D.) analysis, the jury was to consider, in addition to the evidence of the accused, all of the evidence called by the defence to determine whether it was left with a reasonable doubt: see R. v. Haroun, 1997 382 (SCC), [1997] 1 S.C.R. 593, [1997] S.C.J. No. 35, 115 C.C.C. (3d) 261, at para. 15. This deficiency in the charge must, however, be considered in the light of the effect of the charge as a whole. The trial judge gave the standard instruction that the Crown bore the burden of proof, that the jurors were to decide the case on the evidence as a whole, and that if, on the evidence as a whole, they were left with a reasonable doubt, they were required to acquit the appellant.

[20] Accordingly, I am not persuaded that, in the context of this case, standing on its own, the deficiency in the W. (D.) instruction was fatal.

Issue 2: Did the trial judge err in his charge by failing to give a limiting instruction with respect to the evidence of Detective Sergeant Nealon?

[21] Detective Sergeant Dan Nealon, then a 19-year veteran of the Toronto Police Service, led the investigation together with Detective Craig Morton. Nealon's position before the jury was prominent. As the lead investigator assisting the Crown, he was exempted from the order excluding witnesses and, for most of the trial, he sat with the Crown at the counsel table.

[22] Nealon testified after all but one of the other police officers had given their evidence and immediately before Kong testified. His evidence added little to the testimony of the other police [page470] officers or to the direct evidence of Kong that would follow. The purpose of Nealon's evidence appears to have been to explain the steps the police had taken to investigate the attack, and to satisfy the jury that the crime had been properly investigated and that the search for Kong's attacker had been appropriately thorough.

[23] Nealon testified that he had reviewed the notes of the other officers involved in the investigation. He described the various steps he took to find information about Kong through Kong's family, his direction of inquiries at the casino and the search for the van. He explained that as there was some thought that the attack might be gang-related, a police guard was placed at Kong's bedside "in the off-chance that whoever it was that committed this crime had wanted to finish the job off".

[24] Significant aspects of Nealon's evidence as to how the investigation proceeded were based upon hearsay or unidentified sources. At several points, although Nealon was cautioned not to give hearsay evidence, he was asked to relate what he had done as a result of obtaining information from various sources, including Kong. Nealon related his efforts to obtain information from Casino Niagara that showed the appellant's history there. He also testified that a police officer had traced the ownership of the appellant's van. He related a second-hand hearsay description of the appellant given to another police officer by a witness.

[25] As he narrated the events of the investigation, Nealon indicated that as the various bits of information -- some of which he described and some of which the Crown conceded was hearsay and which the jury was told it could not receive -- were assembled, the investigation was "looking significantly better" as he and his team honed in on the appellant as Kong's assailant. At various points in his evidence, Nealon offered his personal opinion as to the appellant's guilt: "It was my intention [sic] at that point [following the interview with Kong] that the man responsible for this attack on Jack was a person known as Duc Van, driving a 1987 Dodge Caravan, red in colour, with that licence plate." Nealon also testified that he had sufficient information to satisfy himself that there were reasonable grounds for arresting the appellant.

[26] The danger that the jury might use the evidence of the investigation as direct evidence of the appellant's guilt was revealed by Crown counsel's final question to Nealon during the examination-in-chief: "Anything else involved in the investigation that you can think of right now that might assist the jury in determining the guilt or innocence of the accused?" (Emphasis added).

[27] When defence counsel's cross-examination of Nealon began probing his investigation and knowledge of Kong's involvement in [page471] illegal gambling and Asian gangs, Crown counsel objected to the potential introduction of hearsay evidence. As a result, defence counsel agreed to restrict his questions to the witness' suspicions about Asian gangs and the steps he took to investigate such suspicions. Nealon agreed that one of the photo line-ups shown to Kong included a man suspected of being a collector for loan sharks and a potential suspect in the case and that one avenue the investigation had followed was the possibility that Kong had a gambling debt. He agreed that he had received information regarding a story in a Chinese- language newspaper because of the fear it caused Kong when it identified him as a victim and published his name and address. Nealon also agreed that once Kong identified Man Tak (the Cantonese translation of Duc Van) as his assailant, all other investigation stopped and the police focused on finding the appellant and evidence to corroborate his guilt.

[28] The trial judge permitted Crown counsel to revisit on re-examination the reasons for the investigation's focus on the appellant:

Q. Why did the information from Mr. Kong narrow your search?

A. Following that interview with Mr. Kong and the information that he did give me, over the next twenty hours a lot of information unfolded that allowed me the only path to take, and as a result of all the information that unfolded, and it seemed to me the other paths would be negligible to follow, because as far as I was concerned I was being led down the proper path for this in the information from Jack Kong.

Q. All right. Then I guess, just to not put too fine a point on it, but the follow-up question, why didn't you continue looking at gangs or loans or loansharks, why didn't you continue down that path?

A. Because, in my opinion, Duc Van is the one that is responsible for this act.

Q. Based on?

A. My investigation . . . and the information that I received. (Emphasis added)

[29] As the defence attacked the integrity of the investigation, the Crown was entitled to lead evidence about the police investigation that included hearsay evidence as part of the narrative necessary to explain how the investigation proceeded. However, as this court held in R. v. Dhillon, 2002 41540 (ON CA), [2002] O.J. No. 2775, 166 C.C.C. (3d) 262 (C.A.), at para. 51, and R. v. Mallory, 2007 ONCA 46, [2007] O.J. No. 236, 217 C.C.C. (3d) 266 (C.A.), at para. 92, a limiting instruction is required. As stated in Dhillon:

If evidence of the police investigation is admissible and is pursued, its limited use must be made clear to the jury. See R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para. 184. In the course of instructing the jury on the permissible uses of this [page472] evidence, the trial judge would be wise to highlight specifically those parts of the investigation that would otherwise be inadmissible as either hearsay or police opinion.

[30] The evidence led from Nealon in re-examination, as well as his evidence-in-chief, included both hearsay and police opinion evidence. The trial judge should have given the Dhillon instruction cautioning the jury that this evidence was to be used only as narrative to explain how the investigation had proceeded and that the hearsay and the sources undisclosed to the jury that were used by Nealon to further the investigation, as well as Nealon's opinion, were otherwise inadmissible and did not amount to evidence the jury could use to find that the appellant was guilty of the offences for which he was charged.

[31] Especially troubling is the suggestion created by Nealon's evidence as a whole -- and in particular by what he said in re-examination -- that as a result of a body of information not disclosed to the jury, he had formed the opinion that the appellant was guilty. Repeated references to information that "unfolded" and to "information that I received" could well have been taken by the jury to suggest that this senior and respected police officer had evidence inculpating the appellant that had not been presented at trial. The jury should have been warned against drawing that inference.

[32] The respondent submits that the trial judge's failure to give a limiting instruction is not fatal because the appellant's trial counsel did not seek such an instruction and that this omission may have been tactically motivated. The respondent suggests that as the appellant relied on the investigative evidence to support the theory that Kong's assailants were loan sharks or Asian gang enforcers, a limiting instruction might have undercut that defence.

[33] I am unable to accept this submission, as the trial judge did, in fact, caution the jury about the use of the loan- shark/Asian gang evidence:

Did [Kong] need to borrow from loansharks? His direct evidence is that he did not. [Defence counsel] suggests you might make the inference that he did, and that might explain the vicious attack on him in his apartment. It is for you to decide whether there is enough evidence to support that inference. You should not infer something from nothing, you need evidence not speculation, but the inference is open to you to make if you are satisfied that there is evidence to support it. . . . . .

The strongest suggestion that this attack might be related to loansharking, or debt collecting or Asian gang crime came from the police officers who started with that in mind because of the injuries that he thought he had suffered, and the knowledge that Mr. Kong was deeply involved in the gambling culture of [page473] Chinatown, but as soon as they were able to interview Mr. Kong he told them it was Man Tak and within hours the investigation turned to him and found, indeed, he had been with Mr. Kong on the fateful night and morning.

[34] This caution against speculation was appropriate in the circumstances, but it clearly weakened the loan-shark/Asian gang defence. It is difficult to see how, in the light of that instruction, it could have been to the tactical advantage of the appellant not to have the required limiting instruction as to the permitted use of investigative hearsay and police opinion evidence. The trial judge had already cautioned the jury about the shortcomings of the evidence to support the loan-shark/Asian gang theory and a limiting instruction on the related but distinct issue of investigative hearsay and police opinion evidence would have had no adverse impact on the defence.

[35] While defence counsel failed to object, I am not persuaded that this failure to object was tactically driven. This court has held that a limiting instruction is required, and in my view, the absence of an objection is not fatal to an appeal on this basis.

[36] Accordingly, I would give effect to this ground of appeal.

Issue 3: Did the trial judge err by failing to instruct the jury concerning the use or non-use of prior consistent and inconsistent statements?

[37] The Crown led evidence of Kong's prior identification of the appellant as his assailant. Kong was also cross-examined on statements he made at the earlier trials. The trial judge did not give the usual instruction to explain the permissible and impermissible uses of prior consistent and inconsistent statements.

[38] Defence counsel did not object to the evidence of Kong's prior identification of the appellant at the hospital: see R. v. Tat (1997), 1997 2234 (ON CA), 35 O.R. (3d) 641, [1997] O.J. No. 3579, 117 C.C.C. (3d) 481 (C.A.), at paras. 31 -- 66. Nor was there any objection at trial to the manner in which the trial judge dealt with prior inconsistent statements. Moreover, the appellant has not directed us to any prior inconsistent statements that were prejudicial to the defence or that required a limiting instruction.

[39] Obviously, it would have been preferable had the trial judge given the usual instruction with respect to prior consistent and inconsistent statements. However, in the circumstances of this case, I am not persuaded that the trial judge's failure to give a limiting instruction with respect to prior consistent and inconsistent statements occasioned any harm or prejudice to the appellant.

[40] Accordingly, I would not give effect to this ground of appeal. [page474]

Issue 4: If there was an error, does the curative proviso (s. 686(1)(b)(iii)) apply?

[41] I respectfully disagree with the Chief Justice that it would be appropriate to apply the "curative proviso" in s. 686(1)(b)(iii) of the Criminal Code to sustain the conviction in the circumstances of this case.

[42] The error regarding Nealon's evidence cannot be described as "minor" or "harmless" in the sense prescribed by the Supreme Court in R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, [2001] S.C.J. No. 83, at para. 29. The Supreme Court of Canada stated in R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129, [1994] S.C.J. No. 5, at p. 146 S.C.R. that the proviso is applicable when a lower court has committed errors of law, yet "the verdicts would necessarily have been the same", regardless of the errors. I am far from persuaded that this verdict would necessarily have been the same but for the error.

[43] The Crown's case essentially depended upon the jury's acceptance of Kong's account of the attack in the face of the appellant's denial. The Crown's case was not overwhelming as is demonstrated by the two hung juries that have befallen this case. I cannot say that "the evidence pointing to the guilt of the accused is so overwhelming that any other verdict but a conviction would be impossible": Khan, at para. 31, quoting R. v. S. (P.L.), 1991 103 (SCC), [1991] 1 S.C.R. 909, [1991] S.C.J. No. 37, at p. 916 S.C.R. The lead police investigator's evidence that he had other information not disclosed to the jury inculpating the appellant could well have affected the jury's assessment of the evidence.

[44] The shortcoming in the trial judge's instructions to the jury in relation to Detective Sergeant Nealon's evidence is, in my view, fatal and the appeal against conviction must be allowed. In light of that conclusion, it is not necessary for me to deal with the sentence appeal.

Conclusion

[45] The appellant submits that if the appeal against conviction is allowed, this court should enter a stay of proceedings. I agree that a stay is the appropriate remedy. An order for a new trial would impose on the appellant his fourth trial for these offences and he is now on parole, having served a substantial portion of his sentence. In these circumstances, I would apply what this court stated in R. v. L. (A.), 2004 32136 (ON CA), [2004] O.J. No. 1165, 183 C.C.C. (3d) 193 (C.A.), at para. 19: [page475]

To continue these proceedings would . . . stretch the limits of the community's sense of fair play beyond the breaking point. This is one of those clearest of cases that justify a stay of proceedings.

[46] Accordingly, I would allow the appeal, set aside the convictions and enter a stay of proceedings.

[47] WINKLER C.J.O. (dissenting): I have had the opportunity to review my colleagues' reasons and agree with their disposition of the first and third grounds of appeal. As for the second ground, while I agree that the trial judge committed an error of law in failing to caution the jury with respect to the evidence of the investigating officer, I am nevertheless of the view that this would be an appropriate case for the application of s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 in that the error did not result in a "substantial wrong or miscarriage of justice". Accordingly, I would dismiss the appeal.

[48] In my view, the error must be considered in the context of the trial dynamic and the evidence adduced. The defence theory of the case was that Mr. Kong was the victim of an attack by persons unknown who were potentially associated with a loan-sharking ring. To this end, Mr. Kong's lifestyle and gambling habits were explored thoroughly through his testimony and that of the accused. Defence counsel posited that Mr. Kong may have run afoul of a person or persons unknown who could have been the assailant rather than the accused.

[49] In furtherance of this theory, defence counsel had Detective Nealon, the investigating officer, reiterate from his evidence-in-chief that he focused on the accused as the prime suspect early in the investigation and did not pursue other possibilities. There were elements of Detective Nealon's testimony that were both hearsay and opinion evidence. In respect of the latter, and presumably to the benefit of the defence theory, he admitted that the investigation narrowed when he formed the opinion that the accused had committed the assault on Mr. Kong. Indeed, it was the shift in the police investigation from loan sharks to the accused that provided the underlying evidentiary basis for the defence theory.

[50] As my colleagues have noted, the jury should receive a limiting instruction as to the proper use of police investigation and opinion evidence. That said, defence counsel raised no objection regarding the evidence offered by Detective Nealon at the time it was offered, nor did he request a limiting instruction in the charge to the jury or object to the lack thereof. Contrary to my colleagues, I hold the view that this may reflect a tactical decision. Defence counsel may have decided not to seek the caution because it would have weakened the very evidence upon [page476] which the defence theory depended, which was Detective Nealon's evidence that police had initially suspected the offence was gang-related, but soon dropped that avenue of investigation to pursue the accused.

[51] In any event, the real issue is whether the error in failing to give this limiting instruction resulted in an unsafe verdict, or whether it was one of those "minor or 'harmless' errors of law where the Crown can establish that no substantial wrong or miscarriage of justice has occurred". See R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, [2001] S.C.J. No. 83, at para. 29, citing R. v. Tran, 1994 56 (SCC), [1994] 2 S.C.R. 951, [1994] S.C.J. No. 16. In my view, the error in this case was both minor and harmless.

[52] In order to properly analyze the defence theory of the case, the jury would have been required to consider whether Detective Nealon's alleged "tunnel-vision" relating to the accused resulted in a flawed investigation that did not fully explore other potential suspects. This would, in turn, lead to an analysis of the evidence against the accused.

[53] While I do not wish to repeat the succinct facts set out by my colleagues, for the purposes of my analysis I believe it necessary to reiterate the key evidence that has led me to reach a different conclusion.

[54] First, the events leading up to the assault on Mr. Kong began with the incident involving the injury to him on the Queen Elizabeth Way in the early hours of December 21, 2000, when Mr. Kong was struck in the head by a tire iron. Mr. Kong testified that the accused admitted hitting him on the head with the tool but also claimed that it was an accident. On the other hand, the accused, who was alone with Mr. Kong in the vehicle at the time the flat tire occurred, admitted that Mr. Kong had suffered the head injury, but simply denied any knowledge of how the injury occurred.

[55] Secondly, the subsequent vicious attack on Mr. Kong occurred in his apartment. The accused offered evidence in an attempt to formulate an alibi for his whereabouts during the morning of the assault, but none of his alibi evidence related to the late afternoon, which was the apparent time of the attack based primarily on the medical evidence. Moreover, the accused had no explanation concerning the telephone records which showed a call being placed from his cellphone in the vicinity of Mr. Kong's apartment at 4:00 in the afternoon, two and a half hours before Mr. Kong was found with life- threatening injuries.

[56] Finally, there is the detailed evidence of the victim, a direct account in which he identified the accused as the perpetrator of his vicious assault, and provided the blow-by- blow [page477] sequence of the attack, including the words attributed to the accused that he would wait until Mr. Kong "fainted away". This evidence was not rebutted by the defence, other than to speculate in the hope of raising a reasonable doubt, that the beating and robbery were carried out by loan sharks and not by the accused.

[57] There was ample evidence that the ultimate assault for which the accused stood trial was one of a chain of events commencing with the roadside blow to the head suffered by Mr. Kong. Further, there was evidence of the accused's involvement at every stage in this chain of events. While the defence theory was that the ultimate assault was carried out by someone other than the accused, no explanation was offered for the blow to the head suffered by Mr. Kong while he changed a flat tire in the presence of the accused and the accused alone.

[58] Accordingly, I am not persuaded that the absence of a limiting instruction resulted in the jury using the evidence of Detective Nealon for an improper purpose in a way that was prejudicial to the accused. In this regard, I do not share my colleagues' view that Detective Nealon's references to "information that unfolded" and "information that I received" would have left the jury with the impression that he was referring to inculpatory evidence against the appellant that was not disclosed to the jury. He made these references in re-examination, immediately after his detailed testimony about the nature of the information gathered by police which led them to suspect the appellant. Defence counsel evidently did not share the concerns expressed by my colleagues, as revealed by the lack of an objection and by the lack of a request for a limiting instruction.

[59] Moreover, I am not persuaded that a limiting instruction on the use of Detective Nealon's evidence would have affected in any way the verdict returned on the totality of the evidence by a jury that was otherwise properly instructed, as the jury was here. In juxtaposition to the compelling nature of the evidence implicating the accused in this vicious attack, the almost total absence of any evidence from the accused to counter or negate the material facts makes it implausible that the absence of the caution could have had any impact on the ultimate jury verdict. I have every confidence that the members of the jury would have been faithful to their oath. In other words, while an error was committed, it is my view that it was an error without consequence.

[60] For these reasons, I would dismiss the appeal pursuant to s. 686(1)(b)(iii) of the Criminal Code.

[61] The appellant also appealed his sentence, requesting that it be reduced from 14 years to time served. The appellant [page478] acknowledged in his factum that the range for this type of offence is ten to 15 years. The trial judge was well within his discretion to impose a global sentence of 14 years. I would grant leave to appeal sentence, but dismiss the sentence appeal.

Appeal allowed.