Court File and Parties

CITATION: R. v. Williams, 2008 ONCA 413

DATE: 20080527

DOCKET: C43700

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O., BLAIR and LANG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

and

NICHOLAS WILLIAMS

Respondent

Jennifer Woollcombe for the appellant

Paul Burstein for the respondent

Heard: March 25, 2008

On appeal from the verdict of acquittal entered by a jury, presided over by Justice P. Hockin of the Superior Court of Justice, on April 13, 2005.

Reasons for Decision

O’CONNOR A.C.J.O.:

[1] A jury acquitted the respondent on a charge of second degree murder. The Crown appeals submitting that the trial judge made two legal errors.

[2] First, the Crown argues that the trial judge erred in removing from the jury’s consideration the possibility that the respondent had adopted the whole of a statement made to the police by his cousin, Ray Williams, which statement incriminated the respondent in the alleged murder.

[3] Second, the Crown argues that having permitted the respondent to adduce evidence of the deceased’s propensity for violence, the trial judge erred in refusing to permit the Crown to lead evidence of the respondent’s criminal record for violence. The Crown goes on to argue that this error was compounded by the trial judge’s failure to adequately correct inflammatory remarks made by the respondent’s counsel in his closing address.

[4] For the reasons that follow, I would dismiss the appeal.

FACTS

(a) The Death

[5] The deceased, John Dillon, was a drug debt collector. He lived in Sarnia. On Saturday, March 3, 2001, Dillon’s girlfriend, Kyla Greenbird, saw him in the morning and said that he did not return to her house around 6:00 p.m. as expected. Dillon was seen in a bar in Sarnia that evening. He left the bar at about 1:15 a.m.

[6] At 4:23 a.m. on March 4, 2001, a 911 call was made from a pay phone in Sarnia advising that there was an unconscious person in bad shape in a white car at “Christina and Confed”. The phone call was recorded. At trial, a police officer was permitted to give voice identification evidence and testified that he believed the caller to be the respondent.

[7] Police and ambulance went to the parking lot at the corner of Christina and Confederation Streets and found Dillon in the back seat of his car. He was lying face down, his upper body “wedged” between the front and back seat. It was obvious that he had suffered serious injuries: there was a lot of blood, his breathing was laboured and gurgling and he was unconscious.

[8] When Dillon arrived at the trauma centre, he had a very low level of consciousness and was put on a ventilator. He died five days later.

[9] The Crown called extensive medical and pathological evidence with a view to establishing that Dillon’s death was caused by a severe beating. The respondent did not call any evidence relating to the cause of Dillon’s death. However, the respondent did mount a significant challenge to the adequacy of the medical treatment that Dillon received, taking the position that the medical treatment, not the beating, was the cause of death. This issue – the cause of death – is not germane to the issues on this appeal other than to indicate that at trial, the respondent argued as one of his defences that there was no culpable homicide.

(b) Ray Williams’ Statement

[10] On examining Dillon’s car, the police discovered the handprint of Ray Williams on the rear passenger window. The print was in Dillon’s blood. Ray Williams was charged with first degree murder. He was arrested in Florida in May 2001 and was extradited back to Canada on August 9, 2001.

[11] The primary evidence implicating the respondent in the beating of Dillon came from a videotaped statement made by Ray Williams to the police on August 12, 2001. The statement was long and detailed, over one hundred pages. It was common ground at trial that the statement accurately recorded what Ray Williams had said to the police on August 12. At trial, Ray Williams resiled from his statement to the police. He said that in fact he had no real recollection of the events of March 3, 2001, which were described in the statement. He said that he made the statement in the hope that he would be released on bail.

[12] The Crown successfully applied under s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5 to cross-examine Ray Williams. Following the Crown’s cross-examination, the trial judge admitted the statement into evidence as proof of the truth of its contents. The videotaped statement was played for the jury.

[13] In his statement, Ray Williams said that on March 3, 2001, he had gone to the house of Warren Williams, the respondent’s brother, to get some cocaine. He said that the respondent was in the garage and he went to see him. Warren Williams’ wife came to the garage and told them that Dillon and Warren Williams were arguing on the porch of the house. The respondent grabbed a crow bar and Ray Williams picked up a carpenter’s hammer. The respondent told Ray Williams to stay in the garage and he then snuck around the garage.

[14] About two minutes later, Ray Williams ran over to the front of the house and saw Dillon lying on his stomach, motioning to get up. Ray Williams hit him in the back with the hammer and when he was still moving, he hit him in the back of the head.

[15] Ray Williams left to return to the garage and as he turned back, the respondent was hitting Dillon on the head (about three more times) with the crow bar. The respondent returned to the garage.

[16] After five minutes, Ray Williams and the respondent tried to drag Dillon to his car. The respondent told Ray Williams to go through the car to see if there was a gun. Ray Williams volunteered to drive Dillon for medical attention. The respondent and Warren Williams put Dillon in the backseat of the car. Dillon was murmuring and breathing like he was unconscious. Ray Williams saw the respondent “in the backseat with him [Dillon] again mutilating him”. The respondent was using a hammer to hit Dillon’s feet or ankle area. The respondent slammed the door on Dillon’s forearms.

[17] Ray Williams drove Dillon’s car into Sarnia and Warren Williams and the respondent went in a van. Ray Williams pulled into parking lot and then got into the van. He said he hoped the respondent would call 911.

[18] On cross-examination by the respondent’s lawyer, Ray Williams repeated that he had no memory of the events of May 3 involving the respondent which were described in his statement to the police. He said that he made the statement to protect other family members and a friend. He also said he made the statement to protect himself and to help him get out of jail. He said that he tried to minimize his own involvement in the events. Further, he said that the police told him that if he did not help the police, the charge, which at this point was second degree murder, could be put back up to first degree murder. According to Ray Williams, the police threatened to go after his girlfriend and Warren Williams’ wife, if Ray did not help them. At one point, the police spoke of reducing the charge to manslaughter. Ray Williams told the police that he would give a statement if he would get out on bail. The police said they would talk to the Crown about helping if he gave a statement. He testified that during the discussions with the police, they had supplied him with details of the investigation which he then used in the statement.

[19] The Crown called the many police officers who had dealt with Ray Williams from the time of his arrest in Florida until he gave the statement. The police denied that Ray Williams had been given details of the investigation or that they had made any promises or threats to him. There was nothing in the police evidence to support any allegation that the police engaged in improper conduct or that they promised Ray Williams bail if he made a statement.

[20] The respondent’s primary defence at trial was an attack on the credibility and reliability of Ray Williams’ statement. He argued that if the jury did not accept the truth of what Ray Williams said in his statement, there was no evidence that he was involved in the beating of Dillon.

[21] Ray Williams was convicted of second degree murder in connection with Dillon’s death. His appeal against that conviction remains outstanding.

(c) The Cell Probe

[22] On January 15, 2002, both the respondent and Warren Williams (who was also charged with the murder of Dillon) were scheduled for court appearances. The police set up a cell probe in the courthouse and recorded a conversation between them. The trial judge permitted police officers to give evidence identifying the voices on the audiotape. Portions of the conversation were admitted into evidence and played for the jury.

[23] The voice attributed to the respondent indicated that he had learned about Ray Williams’ statement from disclosure received by his lawyer. There was no evidence about whether the respondent had seen all of Ray Williams’ statement or only a portion of it.

[24] In the intercepted conversation, the statements attributed to the respondent include:

Junior [Ray Williams] unfortunately gave himself up he fuckin’ told them everything…He told them how I told him to stay in the fuckin’ garage and how I picked up a bar- how I went around – snuck around with the bar, came out but he came out and had Dillon were on the floor and he jumped on him while we were on the ground. He jumped on Dillon’s back and hit his head with the hammer…Don’t care. It doesn’t matter, it’s gonna – it’s gonna put away both of us. That’s me, that’s at your house, right?

…I’m not disagreeing with anything he said…

[25] In addition, the following exchanges were recorded:

THE RESPONDENT: Oh don’t worry man my lawyer’s already on it. We’ve got people that are willing to come to court to say that he [Dillon] had lied to me about my little baby who was in my hands. We’ve got cops – we’re gonna subpoena cops that he had threatened while – the last time I was in jail, you know what I mean. He threatened cops’ families. Man, the guy was a bad mother fucker… [WARREN: Mm Hmm.]…and I did what I felt I had to do… [WARREN: Mm Hmm.]… to save or do my best interest to save my life…[WARREN: Yeah.]… your dwelling… [WARREN: Mm Hmm.]… and everything within it.

WARREN: I was fine until he punched ya. I was fine until that.

THE RESPONDENT: See, you know what I mean

WARREN: You know what I mean, like I was already pissed cause he was really threatening Nance, right. When she went out I was fine. Then, he fuckin’ – as soon as he hit you that was it, you know. What I mean, that’s when I got (U/I) when I flipped. Cause usually when I’m sober I’m fine, but if you sit there and push a button, there ain’t no coming back.

WARREN: How come Junior didn’t said I didn’t do anything?

THE REPSPONDENT: Cause he didn’t – see, he didn’t see nothin.

WARREN: Oh yeah. He didn’t come up until I stood back.

THE RESPONDENT: He didn’t see nothing. He came over (TALKING SIMULTANEOUSLY)

WARREN: How the fuckin did he do (U/I)? Cause then I remember standing back. You were there. Next thing all I heard was “er”. That’s when I stood back and then there’s Junior. I went “Holy Fuck”.

THE RESPONDENT: Yeah.

WARREN: And he – he was already knocked out man.

THE RESPONDENT: Yeah.

WARREN: Yeah, I gave him a fucking upper cut from hell, man (U/I) hit him right there, right there (U/I) broke his jaw.

[Punctuation has been inserted into the original transcript for clarity.]

ANALYSIS

(a) Adoption of Ray Williams’ Statement

[26] The Crown argues that the trial judge erred in removing from the jury the question of the extent to which the respondent had adopted the contents of Ray Williams’ statement in the cell probe conversation.

[27] In his conversation with Warren Williams in the cell, the respondent made reference to Ray Williams’ statement and, in particular, to parts of that statement which implicated him in the beating of Dillon (see para. 25 above). At one point in the conversation, the respondent said “I’m not disagreeing with anything he [Ray Williams] said”.

[28] By way of a pre-trial motion, Crown counsel sought a ruling that the respondent had adopted Ray Williams’ entire statement as his own. The Crown argued the entire statement should be admitted into evidence as proof of its contents.

[29] After reviewing the transcript of the cell probe, the trial judge was not satisfied that the respondent had adopted the entire statement. He pointed out that the statement was given over a period of five hours, with a few breaks, and that when transcribed, it was one hundred and one pages in length.

[30] In his ruling the trial judge went on to say, “there is no evidence from the cell conversations to indicate that the accused was concerned with, animated by, or had directed his mind to the very matters covered in all 101 pages beyond those parts of the statement which he remembers and which implicate him directly in the beating of John Dillon.”

[31] The trial judge pointed out that this was not an all or nothing issue. He indicated that evidence could be led about those parts of the statement which the accused referred to in the cell probe and that the jury could reasonably infer that he had accepted those parts of the statement as his own. Thus, at that point, the statement was not admitted into evidence.

[32] The Crown does not appeal this ruling.

[33] When Ray Williams testified, he recanted, and the Crown was permitted to cross-examine him. The entire statement was admitted for the truth of its contents pursuant to the K.G.B. exception to the hearsay rule: R. v. B.(K.G.) (1993), 1993 116 (SCC), 79 C.C.C. (3d) 257.

[34] In his closing address, Crown counsel referred to the relevant passages in the cell probe conversation and said, “If this were all one big lie, a big frame up conspiracy orchestrated by the police, you would think Nicholas Williams [the respondent] might say something to his brother about Ray Williams being a liar, but the contrary is the case”.

[35] In the initial charge, the trial judge said nothing about whether or not the respondent had adopted any of Ray Williams’ statement during the cell probe conversation. Defence counsel objected, in effect making two points. First, he argued that the effect of the Crown’s submission was to suggest that the jury could find the respondent’s comment in the cell probe signified that he had adopted the entire statement. Defence counsel asked the trial judge to clarify that the respondent’s comment did not amount to an adoption of the entire statement. Second, he asked the trial judge to bring home to the jury that the respondent’s statement – “I’m not disagreeing with anything he said” – was referring only to Ray Williams’ involvement in the beating of Dillon, not his own.

[36] In response, the Crown said that he had not argued that the respondent’s statement in the cell amounted to an adoption by him of Ray Williams’ entire statement.

[37] The trial judge recharged the jury on this issue. It is that recharge that gives rise to this ground of appeal.

[38] The trial judge said:

And two other matters, the first is this, there is in the audiotape of the cell probe, this statement which is attributed to Nicholas Williams, “I’m not disagreeing with anything he said,” and in the context of the cell probe the reference there is to Junior, or Raymond Williams.

It is not apparent on the basis of that sentence what he is “not disagreeing with.” I tell you, therefore, that that statement by Nicholas Williams, if you should find it is Nicholas Williams, should not be used to place Nicholas Williams in the position that he has adopted as true, all that is said in the statement of Raymond Williams – that is the videotaped statement. [Emphasis added.]

[39] It is important to note that the trial judge’s recharge addressed only the first of the two points raised by respondent’s counsel. The trial judge did not direct the jury that the respondent’s adoption of Ray Williams’ statement referred only to Ray Williams’ involvement in the beating.

[40] On appeal, the Crown argues that having determined, correctly, in the pre-trial ruling that it was for the jury to decide which, if any, passages of Ray Williams’ statement the respondent adopted, the trial judge in his recharge improperly took from the jury the possibility of concluding that the respondent had adopted everything in Ray Williams’ statement.

[41] I do not accept this argument. To start, the Crown at trial did not argue that the respondent’s statement in the cell should be viewed as an adoption of the entire statement. Indeed, as pointed out above, the Crown made that clear in response to defence counsel’s objection to the charge.

[42] Moreover, the trial judge had ruled on the Crown’s pre-trial motion that the respondent’s statement in the cell probe did not constitute an adoption of Ray Williams’ entire statement. At trial, the Crown did not seek to lead further evidence to show that at the time of the cell probe conversation the respondent had in his possession the entirety of Ray Williams’ statement or that he was referring to the entire statement when he said, “I’m not disagreeing with anything he said”.

[43] Finally, and perhaps more importantly, there is nothing in the recharge that prevented the jury from concluding that the respondent had adopted any specific parts of Ray Williams’ statement, in particular those parts which incriminated him. Indeed, it is implicit in the recharge that it was open to the jury to find that the respondent had adopted some parts of Ray Williams’ statement. The trial judge said only that the respondent’s statement should not be interpreted to mean that he had adopted all that Ray Williams had said. Given that in the cell probe conversation the respondent specifically referred to portions of the statement that incriminated him, the jury could not have been misled into thinking that it was not open to them to conclude that he adopted those portions of the statement. There was little else in Ray Williams’ statement that would have been of much assistance to the Crown in proving its case against the respondent.

[44] The Crown also argues that the jury should have been specifically told that it was entirely for them to decide whether any portion of the statement had been adopted by the respondent.

[45] While there would have been no harm in giving this instruction, I am satisfied that a fair reading of the charge and the recharge made it clear to the jury that they were responsible for deciding factual issues and that it was up to them to decide what portions, if any, of Ray Williams’ statement the respondent had adopted.

[46] In the result, I would not give effect to this ground of appeal.

(b) The Respondent’s Disposition Towards Violence

[47] The Crown submits that having permitted the respondent to adduce evidence of the deceased Dillon’s propensity for violence, the trial judge erred in refusing to permit the Crown to lead evidence of the respondent’s criminal record for crimes of violence.

[48] At trial, after Ray Williams’ statement had been admitted into evidence but before the Crown led the evidence relating to the cell probe conversation, the respondent’s counsel sought an order permitting him to cross-examine a Crown witness about the deceased’s criminal record for violent crimes and his reputation for violence.

[49] The trial judge refused the respondent’s counsel’s request on the basis that the evidence was not relevant to any of the matters that were then in issue at trial. The respondent’s position at that point was limited to a defence that he was not involved in Dillon’s beating. The propensity of the deceased for violence was irrelevant to this position. At this point, there was no evidence to support a defence of self-defence if the respondent were to be found to have been involved in the beating.

[50] After the audiotape of the cell probe conversation was admitted, the respondent’s counsel renewed the motion to lead evidence of the deceased’s propensity for violence. Although the primary position of the respondent remained the same – he was not involved in the beating of Dillon – the cell probe conversation provided some basis for a defence of self-defence.

[51] The trial judge ruled that the respondent’s counsel could lead evidence of the deceased’s three convictions for assault causing bodily harm and his general reputation for violence as it had been set out in an affidavit in support of an application for a wiretap.

[52] The Crown does not appeal this ruling.

[53] In response to the trial judge’s ruling, Crown counsel sought leave to enter the respondent’s lengthy criminal record for violence arguing that without evidence of the accused’s violent background, the jury could be left with a distorted view of the facts as they related to self-defence (i.e. the deceased had a propensity for violence and the respondent did not).

[54] In the ruling that the Crown challenges on this appeal, the trial judge refused the Crown’s request to introduce the respondent’s criminal record. The trial judge was concerned about the risk that despite instructions that he might give, the jury may be tempted to walk “the forbidden path”. By this, the trial judge obviously meant that he was concerned that the jury might use the evidence of the respondent’s criminal record improperly to conclude that he had been involved in the beating of Dillon rather than confining its use to the issue of self-defence, should they be satisfied that he had been involved.

[55] The trial judge also indicated in his ruling that there was cogent evidence that “the accused is not without warts, so to speak”. He referred to the fact that the jury was aware that the respondent had previously been in jail and that if they accepted Ray Williams’ statement, the respondent had been involved in the violent events of March 4, 2001 leading to Dillon’s death.

[56] While the trial judge’s reasons for this ruling are brief, it is apparent that he refused the Crown’s application to introduce the respondent’s record because he considered that if he admitted the evidence, the potential prejudice to a fair trial outweighed the probative value of the evidence to the only issue on which it would be relevant – self-defence.

[57] Generally the Crown is not permitted to adduce evidence of an accused’s prior bad acts as circumstantial proof of conduct because of the potential for a trier of fact to rely improperly on the evidence: R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 (S.C.C.) at para. 37 (S.C.C.). However, in some cases, courts recognize that an issue may arise in a trial to which evidence of an accused’s previous misconduct is so highly relevant and cogent that its probative value outweighs any potential for prejudice.

[58] When an accused relies on self-defence and leads evidence that the deceased was a violent person, the question of whether the Crown may lead reply evidence of the accused’s propensity for violence arises. The Crown will be permitted to do so where it is necessary to enhance fairness and ensure that the trier of fact has a balanced, not a distorted, picture of what occurred between the deceased and the accused and of their respective dispositions for aggression. See R. v. Sparkes, [2005] O.J. No. 1883 (C.A.), leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 408; R. v. Yaeck, [1989] O.J. No. 3002 (Sup. Ct.); R. v. Robertshaw, [1996] O.J. No. 1524 (Ont. Ct. J. (Gen. Div.)); R. v. Hines, [2001] O.J. No. 1112 (Sup. Ct.); R. v. Soikie, [2004] O.J. No. 2901 (Sup. Ct.).

[59] In R. v. Yaeck, Watt. J. as he then was, explained as follows:

By parity of reasoning with that employed in R. v. McMillan [citation omitted], the prosecution should be entitled to show that the combat was between two persons of similar dispositions for violence, not one with and the other without it. The trier of fact would then have evidence bearing on the probability of each version of aggression, as well as the direct evidence thereof, thereby being in a better position to assess the legitimacy of the claim.

[60] A decision whether to admit evidence of an accused’s prior bad acts is subject to a trial judge’s overall assessment as to whether the probative value of the evidence outweighs the potential prejudicial effect: R. v. Sparkes at paras. 7-8.

[61] A judge conducting a trial with a jury is in a preferred position to an appellate court in assessing the significance of evidence and the impact that evidence may have on the jury. I say this both with respect to assessing the probative weight that a jury may attach to a particular piece of evidence and the prejudicial effect that its introduction may have on the fairness of the trial.

[62] Unlike an appellate court, a trial judge has the opportunity to hear all of the evidence directly and to evaluate the impression or impact the evidence may have on a jury. A trial judge hears and sees the witnesses at the same time as the jury. A trial judge can observe firsthand the dynamics of a trial and the way the evidence is unfolding and can take steps to maintain balance and fairness.

[63] Because of a trial judge’s preferred position in making these types of decisions, appellate courts will only interfere if there has been a manifest error or a decision is viewed as being unreasonable.

[64] In this case, I see no reason to interfere with the trial judge’s decision. It was a close call but the trial judge did not base the decision upon improper factors nor was the decision unreasonable. There are three points which lead me to this conclusion.

[65] First, the evidence that the trial judge permitted the defence to lead about Dillon’s propensity for violence did not add much to the evidence about him that the Crown had already introduced. Thus, the need to balance any resulting unfairness to the Crown was not great.

[66] By the point in the trial when the defence was permitted to lead evidence about Dillon’s propensity for violence, the Crown had already introduced evidence that he collected money for drug debts, that he was pulling “a heavy” on Warren Williams, that he had beaten up people on the First Nations reserve, that in the past, he had threatened police officers’ families, that he might carry a gun and that he may have associated with bikers. The evidence also showed that Dillon was an enormous man physically, over six feet tall and approximately 270 pounds.

[67] On the Crown’s evidence, it would have been open to the defence to argue that Dillon was a man with a propensity for violence.

[68] Pursuant to the trial judge’s ruling, the defence was permitted to elicit additional evidence about Dillon’s violent reputation during the cross-examination of Sergeant Oram. That evidence, however, was brief – one paragraph from a wiretap affidavit – and added very little to what was already in evidence.

[69] In addition, the defence was allowed to lead evidence through Sergeant Oram of Dillon’s three convictions for assault causing bodily harm. This was new information for the jury. However, two of those convictions were in 1983, eighteen years before Dillon’s death. The other was in 1995.

[70] The rationale for permitting the Crown to lead evidence about an accused’s disposition to violence in a self-defence case is founded on the need to balance the picture because the defence has been allowed to call similar evidence about the victim. However, that rationale does not extend to the situation where the Crown leads evidence of the propensity of a victim towards violence. In that circumstance, it is open to the defence to rely on the Crown’s evidence without opening the door to the Crown to call similar evidence about the accused.

[71] Because in this case the trial judge’s ruling added little to what was already in evidence, the need to balance the scales to ensure a fair trial process was diminished significantly.

[72] The second factor that supports the trial judge’s ruling is that there was already some evidence of the respondent’s bad character in the record. As the trial judge pointed out, during the cell probe conversation, the respondent mentioned that he had previously been in jail. In addition, in his statement to the police, Ray Williams described the respondent as “tough” and having a “reputation”. He said, “you know not to F- with” the respondent. This was not a case where if the Crown were not permitted to lead evidence of the respondent’s criminal record for violent offences, the jurors would likely mistakenly conclude that the respondent was a person with an unblemished character. Thus, the need for the Crown to call the evidence to prevent a distorted picture was further attenuated.

[73] Finally, it is important to keep in mind that the accused’s record, if admitted, was only relevant to the defence of self-defence, which was very much a secondary issue at trial. The central factual issue in the case was the reliability and credibility of Ray Williams’ statement to the police. If the jury accepted that statement, the case against the respondent was very strong. While it is possible that the jury could have accepted Ray Williams’ statement and still have acquitted the respondent on the basis of self-defence, that seems most unlikely. Not surprisingly, the main argument of the defence at trial was that the jury should reject Ray Williams’ statement. The defence took the position that without that evidence the jury could not convict.

[74] In refusing the Crown’s request to call evidence about the respondent’s criminal record, the trial judge referred to his concern that the jury might use the evidence to walk “the forbidden path”. The trial judge was obviously concerned about the danger that the introduction of the accused’s criminal record could arouse the jury’s emotions of prejudice or hostility towards the respondent or that the jury might use the evidence as an indication of propensity with respect to the main issue in the trial and not confine its use to the issue of self-defence. In my view, this was a proper consideration for the trial judge in determining whether he should admit the evidence of the accused’s criminal record. See R. v. Seaboyer (1991), 1991 76 (SCC), 66 C.C.C. (3d) 321 at 390-91 (S.C.C.).

[75] In summary, I am satisfied that this court should not interfere with the trial judge’s ruling to exclude the evidence of the respondent’s criminal record for crimes of violence.

(c) Defence Counsel’s Closing Address

[76] The Crown argues that during his closing address, defence counsel crossed the line from vigorous advocacy to improper and inflammatory comments. The Crown further submits that despite the Crown’s objections at trial, the trial judge failed to correct the damage done by the improper closing address. The Crown fairly concedes, however, that the closing address might not, alone, be sufficient to warrant granting a retrial. The Crown suggests, nonetheless, that it is of sufficient concern to deserve scrutiny and comment by this court.

[77] Despite the latitude given to a defence counsel in closing, I agree with the Crown that defence counsel in this case (not counsel on this appeal) made inappropriate comments during his closing address.

[78] Most seriously, defence counsel repeatedly emphasized that the respondent was aboriginal and that the deceased was white, even though there was no evidence that race and racism were relevant to the events that led to Dillon’s death. Early in his address, counsel said, “there is an important fact for you to consider here, and that is race and status play a major role in this case: the race of the accused and the status of the decedent”. He went on to refer to the fact that the deceased was a violent gangster but that he was white and that his client was native.

[79] Later when discussing the issue of self-defence, counsel again inserted the issue of race saying:

Now, I don’t know if it’s being suggested that a native person doesn’t have the right to defend their home against a home invader, and I certainly hope not, but the fact of the matter is that if any of you were put in that situation where a drunken debt collector for the Hell’s Angels comes raging to your house you would have the right to fight them, to keep them out. Why can’t a native person have the same right? They do.

[80] This was not a case about race. There was no evidence suggesting that any of the events involved in the killing were racially motivated. Nor was there any suggestion that a different standard of self-defence ought to apply to an aboriginal offender. In these circumstances, it was wrong to import the theme of racism into the submissions relating to what led to Dillon’s death. Raising an issue such as racism, when it is not supported by any evidence, could distract a jury from focusing on the evidence and issues that are relevant to the case. In addition, doing so could trigger emotions, prejudices or sympathies of some jurors that should play no part in their deliberations.

[81] In addition, during his closing address, defence counsel made several references to matters that were not in evidence. That too overstepped the permissible parameters for a closing address.

[82] It is worth repeating the words of Austin J.A. in R. v. Munroe (1995), 1995 8921 (ON CA), 96 C.C.C. (3d) 431 (Ont. C.A.), aff’d (1995), 1995 84 (SCC), 102 C.C.C. (3d) 383 (S.C.C.).:

While the prosecution of criminal charges is conducted on an adversary basis, the function of Crown counsel, like defence counsel, is to restrict himself or herself to the offence charged and to evidence properly before the court in that regard. It is clearly improper to range further afield with a view to inflaming the passions of the jury with material that is obviously irrelevant to the specific case or with language that is calculated not to enlighten but to ignite. [Emphasis added.]

[83] That said, I do not think that defence counsel’s inappropriate comments warrant a new trial.

[84] The respondent was acquitted by a jury. When seeking to overturn a jury’s verdict of acquittal, the Crown bears a heavy onus. The Crown must satisfy the court that “the verdict would not necessarily have been the same” if the error complained of had not been made: R. v. Vézeau (1976), 1976 7 (SCC), 28 C.C.C. (2d) 81 at 87 (S.C.C.).

[85] On this appeal, the Crown did not press the point that defence counsel’s inappropriate comments, taken by themselves, were sufficient to discharge the heavy onus necessary to set aside a jury verdict of acquittal. While defence counsel’s comments ought not to have been made, I am not satisfied that this court should interfere with the verdict.

DISPOSITION

[86] For the reasons set out above, I would dismiss the appeal.

RELEASED: “DD” “MAY 27 2008”

“D. O’Connor A.C.J.O.”

“R.A. Blair J.A.”

“S.E. Lang J.A.”