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

94 O.R. (3d) 177

Court of Appeal for Ontario,

Rosenberg, Simmons JJ.A. and Speyer J. (ad hoc)

December 12, 2008

Criminal law -- Evidence -- Investigative narrative evidence -- Accused charged with murder -- Defence asserting that chief Crown witness shot victim, that police investigation being inadequate and attacking integrity of lead investigator -- Trial judge not erring in permitting investigating officer to testify as to steps taken to verify key witness' statement -- Trial fairness requiring that Crown be permitted to respond to attacks on integrity and competence of investigation -- Almost all of narrative adduced being proven by admissible evidence in Crown's case -- Crown not permitted to lead evidence of accused's bad character -- Trial judge properly instructing jury regarding limited use of investigative narrative -- Appeal from conviction dismissed.

Criminal law -- Sentencing -- Murder -- Parole ineligibility -- Accused convicted of second degree murder -- Offence consisting of cold-blooded execution and accused having lengthy and violent criminal [page178] record -- Accused posing high risk for future offences of violence -- Twenty-year parole ineligibility period affirmed on appeal.

Criminal law -- Trial -- Closing address -- Defence counsel stating in closing address that "penitentiaries are littered with innocent people who are in jail because of shoddy or corrupt police investigations" -- Remark improper -- Trial judge not erring in instructing jury that they should not decline to return guilty verdict because of miscarriages of justice in other cases.

The accused was convicted by a jury of second degree murder and was sentenced to life imprisonment without eligibility for parole for 20 years. It was the defence position at trial that the main Crown witness, U, was the shooter. Defence counsel challenged the competency of the police investigation and the integrity of the detective in charge. He asserted that once U provided a statement that the accused was the shooter, the detective closed his mind to the possibility that U was the killer. The trial judge permitted the detective to provide a narrative of the steps he took to confirm U's evidence, but ordered that the officer not give any evidence regarding the accused's bad character. The accused appealed his conviction and sentence.

Held, the appeal should be dismissed.

Given the choice made by the defence to attack the police investigation and the integrity of the officer in charge of the investigation, trial fairness required that the Crown be able to respond to the allegations. The officer outlined about 28 pieces of evidence that confirmed U's evidence, almost all of which had been proven by other admissible evidence. Little hearsay evidence was led as part of the investigative narrative. The trial judge specifically instructed the jury that the detective's evidence could not be used to assess U's credibility and that it could only be used to assess the quality of the investigation.

In his final address to the jury, defence counsel stated, "the penitentiaries of this country are littered with innocent people who are in jail solely because of shoddy or corrupt police investigations". That remark was improper. The trial judge's instruction to the jury that they should not decline to return a verdict of guilty, if they were satisfied beyond a reasonable doubt of the accused's guilt, because of miscarriages of justice in other cases was appropriate and free from error.

The accused had been convicted of aggravated assault (involving a shooting), assault causing bodily harm, two counts of robbery, assault, discharging a firearm with intent to wound and breaching his parole. This murder was a cold- blooded execution. The accused posed a high risk of future violent offences. The 20-year parole ineligibility period was not unfit.

APPEAL from conviction for second degree murder entered on April 2, 2003 and from sentence imposed on April 24, 2003 by Trafford J. of the Superior Court of Justice, sitting with a jury.

Cases referred to 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. 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, consd Other cases referred to R. v. Bettencourt, [2008] O.J. No. 1657, 2008 ONCA 337, 78 W.C.B. (2d) 770 (C.A.); R. v. Cook, 1997 392 (SCC), [1997] 1 S.C.R. 1113, [1997] S.C.J. No. 22, 146 D.L.R. (4th) 437, 210 N.R. 197, J.E. 97-921, 188 N.B.R. (2d) 161, 114 C.C.C. (3d) 481, 7 C.R. (5th) 51, 34 W.C.B. (2d) 285; R. v. Horan, [2008] O.J. No. 3167, 2008 ONCA 589, 240 O.A.C. 313, 60 C.R. (6th) 46; R. v. Smith (1997), 1997 832 (ON CA), 37 O.R. (3d) 39, [1997] O.J. No. 4797, 120 C.C.C. (3d) 500, 11 C.R. (5th) 298, 36 W.C.B. (2d) 413 (C.A.); R. v. Yaari, 1995 1751 (ON CA), [1995] O.J. No. 3030, 86 O.A.C. 58, 101 C.C.C. (3d) 401, 28 W.C.B. (2d) 468 (C.A.) [page179]

James Lockyer and Brian Snell, for appellant. Brian McNeely, for respondent.

The judgment of the court was delivered by

[1] SPEYER J. (ad hoc): -- The appellant was convicted by a jury of second degree murder. He was sentenced to life imprisonment without eligibility for parole for 20 years. He appeals the conviction and from the period of parole ineligibility.

Overview

[2] On December 10, 2001, shortly before 10:42 p.m., David Bryan was murdered a short distance from the front door of the apartment building where he lived with his girlfriend and her two children, in the Scarborough area of Toronto. The deceased died from two bullet wounds: one struck him in the right lower abdomen causing massive bleeding; the other penetrated the top of the victim's skull, travelled through the brain, and exited out of the left side of his mouth. The bullets were discharged from a 9 mm handgun.

[3] Three men were in a position to testify as to the shooting of the deceased. One was Harold Usher, who was called by the Crown. A second, Dwane Campbell, although available to both parties, was not called by either the Crown or the defence. The third was the appellant who elected not to testify or to call any other witnesses.

[4] It was the defence position that the main Crown witness, Harold Usher, was the shooter. Trial counsel (neither Mr. Lockyer nor Mr. Snell) advanced the theory that Usher had both strong motive and opportunity to kill the deceased: the appellant had neither. Concomitantly, it was the defence position that the appellant was not present at the time or location where the shooting occurred. In his closing address to the jury, counsel succinctly put the defence position this way:

The theory of the defence, our position firmly and straightly put, is that Roland Lane was not present when David Bryan was killed. He had nothing to do with it. He has no knowledge, nothing to do with the death of David Bryan.

[5] Further, in his jury address, counsel made his position clear that the person seen by two witnesses urinating against the wall of the apartment building just prior to the shooting was not the appellant; nor was it the appellant who took a cab from a nearby [page180] gas station after being dropped off by Harold Usher shortly after the killing.

[6] In support of its theory that the police charged the wrong man, the defence challenged the competency of the investigation and the integrity of the detective in charge. Defence counsel asserted that once Harold Usher provided a videotape statement alleging the appellant was the shooter, Detective Giroux was "close minded" to the possibility that Usher was the killer. The attack on the sufficiency of the investigation and the competency and integrity of the lead detective was a major feature of this case. Defence counsel pulled no punches. This is what he told the jury in his closing:

This case, in many ways, is a testament to what police officers can do when they close their minds to the evidence and abdicate their duties to us. The penitentiaries of this country are littered with innocent people who are in jail solely because of shoddy or corrupt police investigations. We do not need another one. That Mr. Bryan's family were denied an honest and competent investigation into his death, and that the person who, in my submission, most likely killed him was given utter immunity, is not only a horrible tragedy, it is a miscarriage of justice that should send a chill through your hearts. We have all heard the stubborn intransigence of Detective Giroux. His refusal to investigate and charge Harold Usher should sicken us all. And I'm suggesting to you that his refusal to even consider Harold Usher, to even consider revoking the immunity deal that Harold Usher has, should pale, should just send quivers through your spine.

[7] Harold Usher was the central witness for the Crown. He provided the only direct evidence of the appellant's guilt. The success of the Crown's case turned on the jury accepting the truthfulness of Usher's evidence. The evidence of Harold Usher had many frailties and posed significant dangers for the jury.

[8] Usher was a disreputable witness with a significant criminal record. He owed the deceased money from a drug debt. He acknowledged the deceased was angry with him and threatened to kill him on the night of the murder. He further admitted possession of a gun, albeit not a 9 mm handgun, three days prior to the murder. Moreover, following the shooting of the deceased, Usher left for Montreal before turning himself in to the police seven days later.

[9] In these circumstances, the task for the Crown was to support and confirm by independent evidence Usher's version of events in order to restore faith in an otherwise untrustworthy witness.

Facts

(i) Events prior to the shooting

[10] Usher testified that he, Dwane Campbell and the appellant planned to rob a jeweller who, they believed, carried large [page181] amounts of money and jewellery nightly from his business in downtown Toronto to his home in Newmarket, Ontario. The robbery was to be carried out at the jeweller's home in Newmarket. In preparation, Usher, Campbell and the appellant had kept the jeweller under surveillance, following him from his business to his home on two prior occasions: December 4, 2001 and December 7, 2001. On December 10, the day of the murder, the three men intended to follow the jeweller home and, when he arrived, carry out the robbery. According to Usher, his role was to drive his girlfriend's Aztec motor vehicle: Campbell and the appellant were to carry out the robbery.

[11] Shortly after 8:30 p.m., Usher, Campbell and the appellant began following the jeweller from downtown Toronto, believing he was going directly home to Newmarket. Fortunately for the jeweller, he had previously arranged a business meeting for that evening. Instead of taking his usual route home, he deviated from his normal course and travelled in a direction not anticipated by his would-be assailants. Usher, Campbell and the appellant decided to proceed directly to the jeweller's home, await his arrival, then rob him.

[12] The jeweller had not arrived home by 10:00 p.m.: the men decided to abandon their plan and return to Toronto. Usher continued to drive, the appellant was seated in the front passenger position and Campbell occupied the rear seat.

(ii) The relationship between Usher and the deceased

[13] Usher testified he knew the deceased for approximately six to seven years and thought of him as a friend. The deceased was also Usher's drug supplier from whom he purchased weekly supplies of marijuana. The deceased's girlfriend testified the deceased was short of money and distressed by the fact a number of individuals, including Usher, owed him money. Usher owed Bryan $90 from a marijuana transaction and the deceased was making demands on Usher for payment.

(iii) Usher's connection to Campbell and the appellant

[14] Usher first met the appellant on December 4, 2001, six days prior to the murder. He was introduced to the appellant by his friend, Dwane Campbell. The sole connection between the appellant and Usher was in respect of the robbery of the jeweller. Usher testified the appellant was a friend and associate of Campbell's.

[15] The trial record discloses that the deceased and the appellant did not know each other. Further, while Campbell may have known the deceased, or at least known of the deceased, there was also no connection of consequence between these two men. [page182]

(iv) The drive from Newmarket to Toronto on the evening of December 10, 2001

[16] Upon leaving Newmarket, instead of returning to the Moss Park area of Toronto, as originally planned, Usher decided to go directly to the deceased's residence in Scarborough and repay the $90 drug debt. This decision, according to Usher, was prompted by a series of cellphone calls he received while in Newmarket and on the return trip to Toronto. Bryan was angry with Usher and threatened his life.

[17] The telephone conversations between the deceased and Usher were loud and attracted the attention of both Campbell and the appellant. Usher attributes the following comments to the appellant: "Yo cous', I just met you; I like you still, you know. I think of you as brethren. We could deal with him." Usher's response was that the deceased was his friend and he wanted no part of any violence.

(v) The killing of the deceased

[18] Usher testified he arrived at the deceased's apartment building and pulled up behind a white car. Prior to the deceased coming out of the building, the appellant got out of the front passenger side of the vehicle, leaving the door open, and went to the wall of the apartment building to urinate. When the deceased came out of the apartment building a minute or so later, he approached Usher on the driver side, at which time Usher handed the deceased $90 to pay the drug debt. As noted, the appellant was out of the vehicle when this transfer of money took place.

[19] Usher's evidence is that Campbell rolled down the back window and had words with the deceased. Usher got out of the car in an effort to separate the men and put his left arm around the deceased while walking him back towards the building. Usher states the deceased turned back towards the car and made a menacing remark towards Campbell.

[20] Immediately thereafter, the deceased assumed what Usher described as a linebacker position, and using Usher as his shield, moved towards the apartment building. Usher states he saw an object near his left rib and heard a pop. He turned and ran back to his vehicle. He heard two more pops. As he put the vehicle into reverse, the appellant jumped back into the front seat, adjusted something in his waistband and said "don't worry . . . that nigger is dead".

[21] While he did not see the appellant with a gun on the night of the murder, Usher testified that on December 4, 2001, the [page183] appellant told him he was in possession of "twin babies", referring to two 9 mm handguns.

[22] Two witnesses, who came out of the apartment building prior to the shooting, but did not observe it, gave evidence that each saw a man urinating against the wall of the building. One witness observed the car's front passenger door to be open. These observations, if accepted, are consistent with Usher's version of events.

(vi) The pathologist's evidence

[23] Dr. Feltis's opinion was that the shot to the deceased's abdomen preceded the shot to the head. He reasoned it was highly unlikely for someone to shoot another individual in the top of the head. He thought the more likely scenario was the gunshot wound to the abdomen came first, buckling the deceased into a forward position, thereby exposing the top of the head to the shooter.

[24] It was also the pathologist's opinion that the shooter, if standing face to face with the deceased, was likely left-handed because the bullet travelled through the abdomen in a left-to-right direction. The appellant was left-handed.

(vii) Gunshot residue

[25] The finding of gunshot residue on the appellant's jacket was of critical importance in view of the defence position that the appellant was not present at the scene of the shooting. The forensic chemist from the Center of Forensic Sciences analyzed the appellant's black leather jacket. The analysis revealed 101 particles of gunshot residue, 74 particles of which were found on the right sleeve. The chemist also found nine particles of gunshot residue on Mr. Usher's jacket, three on the right sleeve, four on the left and two on the front. This finding was less significant because it coincided with Usher's testimony that the killing took place immediately beside him.

(viii) The importance of the cellphone evidence

[26] Another piece of evidence placing the appellant at the scene of the murder, apart from Usher's testimony, was cellphone evidence. The Crown sought to confirm the appellant's presence at the scene by the use of cellphone records. As a result, cellphone records of the appellant, the deceased and Usher played a prominent role in the Crown's case. Their significance, if accepted, provided circumstantial evidence supporting Usher's testimony that the appellant was present with Usher in Newmarket less than an hour before the killing, and present with [page184] Usher when Usher drove to the deceased's residence. If accepted, the records also tended to confirm Usher's version of events involving the appellant's presence with Usher in the planning of the robbery on days immediately before the killing. Also, of particular importance were cellphone calls made by Usher to the deceased, and the location from which those calls were made, as he approached the vicinity of the deceased's residence.

(ix) After-the-fact conduct

[27] There was evidence that as soon as the appellant found out there was a warrant out for his arrest on December 21, 2001, he used the apartment of a complete stranger until his arrest on January 4, 2002. There was evidence the appellant terminated the use of his cellphone after a newscast that a warrant for his arrest had been issued. Another cellphone, issued by Fido, was found in the apartment where the appellant was staying on the date of his arrest.

(x) The immunity arrangement

[28] On December 18, 2001, after returning from Montreal and having the benefit of legal advice, Usher went to the police station and provided the detectives in charge of the case with a statement under oath. A second similar statement was provided a few days later. It was Detective Giroux's evidence that the statements were to be considered as being induced. He testified that he interpreted his arrangement with Usher to be that the witness' statement could not be used against him in any prosecution. Nevertheless, if it was discovered Usher was lying, Usher could be charged with the murder but the statement not used. Usher's perception of the arrangement was that so long as he was telling the truth in his statement, he would not be charged with either the conspiracy to rob offence or the murder of David Bryan.

Issues

[29] The Crown was called on to respond to the following four issues: (a) The trial judge's ruling permitting the Crown to call the investigative opinion evidence. (b) The trial judge's ruling permitting Detective Giroux to give evidence as to why Dwane Campbell was not being called as a witness for the Crown. [page185] (c) The propriety of permitting evidence of prior consistent statements. (d) The imposition of a life sentence without eligibility for parole for 20 years.

(a) The trial judge's ruling with respect to investigative opinion evidence

[30] The appellant challenges the ruling made by the trial judge that permitted Detective Giroux to give investigative opinion evidence of the steps he took to confirm the evidence of Harold Usher.

(i) Context

[31] This was a six-week trial. Prior to evidence being called, defence counsel advised the trial judge, "it will be our position during the trial that there was a degree of investigative bias on the part of the officers and a degree of mala fides on their part". When Harold Usher was called as a witness, counsel essentially repeated his position stating that there was investigative bias and fundamental failure of the police to deal with the case properly.

[32] An important and entirely proper line of cross-examination of Usher, pursued by defence counsel, related to Usher's arrangements with the police in respect of his immunity from prosecution regarding the conspiracy to rob charge and the murder. Problems of an evidentiary nature arose when appellant's trial counsel sought to tie Usher's immunity arrangement to police bias and incompetence.

[33] The police arrangement with Usher had as its foundation Usher's truthfulness. The defence alleged Usher's statements to the police were replete with falsehoods. Even so, the defence contended, the police refused to consider Usher as an alternate suspect and refused to resile from the agreement. Counsel, in his cross-examination of Usher, as well as his cross-examination of the Telus employee, attacked the investigation leaving the clear suggestion that cellphone records may have been tampered with. Further, counsel sought to show other parts of the investigation were conducted in a sloppy fashion.

(ii) The trial judge's ruling

[34] The trial judge ruled the defence could challenge and continue to challenge the credibility of Usher with respect to the immunity arrangement. He went on to rule "that approach has raised an issue concerning the integrity, or, at least, the adequacy [page186] of the investigation. Consequently, the Crown may prove through otherwise admissible evidence, the arrangement with Mr. Usher and the police perspective on whether or not he breached it."

[35] He stated that to the extent investigators considered other evidence or information in deciding to rely on Mr. Usher, the Crown could also lead that evidence. The trial judge specifically ruled what the Crown could not do. This formed an important exception to his ruling, namely, the criminal background of the appellant could not be placed before the jury.

(iii) The general nature of the evidence Detective Giroux was permitted to give

[36] Detective Giroux gave evidence as to approximately 28 items of information he had on hand that tended to confirm the version of events recounted by Usher. This information was gathered before the warrant was issued for the appellant's arrest. The information came from various witnesses, most of whom testified at trial.

(iv) The appellant's submission

[37] The appellant submits that the attack on Usher's credibility as a viable other suspect was inextricably linked to the quality of the police investigation. It is submitted that because the appellant attacked Usher's credibility by alleging that he was the murderer, this ought not to be seen as maintaining an attack on the integrity of the investigation causing the consequences that skewed the fairness of the trial. Those consequences, in the appellant's submission, permitted a seasoned police officer to itemize before the jury, pieces of investigative evidence he believed bolstered Usher's credibility. The prejudicial effect of this evidence is alleged to outweigh its probative value.

[38] It is further submitted that the trial judge's ruling permitting the Crown to call the investigative narrative evidence was premature. Appellant's counsel characterized certain submissions made to the trial judge by trial counsel in the absence of the jury as "incautious" or "bluster". It is submitted that in the presence of the jury, trial counsel did not complain about the adequacy of the investigation. This only occurred later in the trial, when Detective Giroux was on the stand.

[39] It is also argued that while the trial judge did not err in his instruction with respect to the limited extent that the jury could use the investigative narrative evidence of Detective Giroux, the trial judge should have gone further. It is submitted he should have told the jury that Detective Giroux's evidence would not help them to determine whether the appellant was guilty. [page187]

(v) Analysis

[40] It is with increasing frequency that this court is called upon to deal with issues arising from defence allegations at trial of inadequate police investigations. The two leading cases, in this area, are the court's decisions in R. v. Dhillon, 2002 41540 (ON CA), [2002] O.J. No. 2775, 166 C.C.C. (3d) 262 (C.A.) and R. v. Mallory, 2007 ONCA 46, [2007] O.J. No. 236, 217 C.C.C. (3d) 266 (C.A.). These cases illustrate the brier patch of problems both counsel and trial judges can encounter when this issue arises. These cases also provide a road map of how to deal with some of the difficulties that may arise.

[41] As a starting point, it is important to reinforce the wisdom of the statement found at para. 87 of Mallory that the decision by an accused to attack the integrity of an investigation, while permitted, is a risky strategy. It is risky because when the defence seeks to cast doubt on the adequacy of the investigation, fairness permits the Crown to lead evidence about the adequacy and integrity of the police investigation.

[42] This case did not feature many of the dangers evident in both Dhillon and Mallory. In Dhillon, an array of highly prejudicial, bad character evidence was led by the Crown. It was done in hearsay form, linking the accused and his family to drug smuggling and terrorism. Similarly, in Mallory investigative hearsay evidence was permitted associating Mallory and Stewart with two other individuals, Sauve and Trudel, alleged to be responsible for other killings. In the circumstances of those cases, it is difficult to overstate the prejudicial effect. In the present case, the trial judge specifically precluded the Crown from calling evidence of the appellant's bad character, as part of the investigative hearsay Detective Giroux was to give when he took the stand. Accordingly, there was neither the type of taint or prejudice to this appellant found in cases such as Dhillon and Mallory.

[43] Further, it is important to observe how little of Detective Giroux's evidence amounted to impermissible hearsay. Virtually all of the items of investigation referred to by the detective were proven by the Crown when it called evidence with respect to the matters referred to.

[44] I do not agree with the appellant's counsel that the question of Usher's immunity deal was so linked to the inadequacy of the investigation that they should be seen as one and the same. The trial judge clearly permitted defence counsel to challenge the arrangement between the police and Usher to establish Usher's testimony was motivated by his desire to avoid prosecution for his own crime. However, trial counsel for the appellant, from start to finish, sought to go further. The record discloses an [page188] unswerving determination to attack the manner in which the investigation was handled. Along with challenging the truthfulness of Usher, trial counsel's attack on the investigation formed a central pillar of the defence.

[45] In these circumstances, the trial judge's decision to permit the Crown to lead items of investigative narrative was fair and even-handed. The trial judge was familiar with the principles outlined in Dhillon, closely monitored the admissibility of the evidence throughout the trial and clearly understood the law.

[46] The strategy with which counsel approaches a case is at the heart of advocacy. Counsel's strategy and tactics, within an orbit permitted by law, are entitled to deference. However, strategies and tactics have consequences. When counsel advises a trial judge, as trial counsel did in this case, that he wished to challenge the sufficiency of the investigation, the trial judge is entitled to accept that to be the position of the defence. This is not a case like Mallory where the Crown acted precipitously, forcing the defence's hand.

[47] I do not accept appeal counsel's assertions that the submissions of defence counsel at trial amounted to "bluster" or "incautious" statements. Nor do I accept the submission that the trial judge's ruling was premature. The tenor of the defence, which included a challenge to the integrity of cellphone records, and sloppiness in failing to interview a witness, made clear that counsel was intent on pursuing his attack on the investigation. This occurred prior to the trial judge's ruling.

[48] Challenging the integrity of the investigation was the strategy counsel sought to employ in presenting the defence; he did just that. The consequence in this case was the trial judge's decision to permit Detective Giroux to tell the jury of the information he had from various witnesses that tended to confirm Mr. Usher's version of events prior to his issuing a warrant for the appellant's arrest. It was for the jury to determine whether the detective acted precipitously in arresting the appellant, as alleged by the defence.

[49] Did the prejudicial effect of Detective Giroux's narrative outweigh the probative value? As indicated, the jury did not hear bad character evidence related to the appellant. Nor was there a significant amount of hearsay that had not already been proved through properly admissible evidence from other witnesses. The quality of the investigation was challenged and the response was fair and balanced.

[50] The trial judge's charge with respect to the limited purposes that the jury could use Detective Giroux's evidence was, in my view, free of error. The trial judge explained to the jury how the evidence could and could not be used. He specifically [page189] instructed the jury it could not be used to assess Usher's credibility and was limited to assessing the quality of the investigation. Nothing more was required.

(b) Was the trial judge correct in permitting evidence to be adduced as to why Dwane Campbell was not called as a Crown witness?

(i) Context

[51] Dwane Campbell, the individual Usher testified was present at the shooting, was not called by either the Crown or the defence.

[52] Less than two months after the shooting, Campbell was arrested and charged with conspiracy to rob the jeweller. He gave a videotape statement denying he was present at the shooting. When called as a witness at the preliminary inquiry, Campbell testified that Usher was the shooter. As a consequence, Campbell was charged with perjury and obstruction of justice. Campbell was also alleged to have made an oral statement to Usher, in the presence of Usher's wife, which was materially different from both the one he gave to the police and his testimony at the preliminary inquiry.

(ii) How the issue arose at trial

[53] Detective Giroux was the last witness to testify. Midway through his examination in chief, defence counsel sought a ruling permitting him to cross-examine the detective with respect to an aspect of Campbell's testimony at the preliminary inquiry that Usher was the shooter. Counsel argued that such evidence was relevant to the issue of the integrity of the investigation and the lack of objectivity demonstrated by the detective. Counsel agreed the evidence could not be used by the jury for the truth of its contents.

[54] The trial judge ruled defence counsel would be permitted to adduce this evidence in cross-examination for the limited purpose proposed. However, he also ruled if counsel chose to proceed down that path, Crown counsel would be allowed to adduce evidence of Campbell's criminal record, his three materially inconsistent statements and the fact that he was charged with perjury.

[55] Crown counsel, following the ruling, asked the trial judge to rule that no adverse inference be permitted from the failure of the Crown to call Campbell as a witness. There was discussion relating to the Crown leading evidence as to why they were not calling Campbell. Defence counsel at this point had no objection, if properly confined, to the Crown calling evidence as to why Campbell was not being called. No further ruling occurred that day. [page190]

[56] The following day, Crown counsel sought a ruling that the Crown be able to adduce evidence through Detective Giroux as to the reason why Campbell was not being called as a Crown witness. Crown counsel advised the trial judge that for ethical reasons, he would not be calling Campbell. He advised the court he was ethically forbidden from calling a witness who, he believed, would lie.

[57] Defence counsel was concerned by the implications of the trial judge's prior ruling with respect to Campbell's testimony at the preliminary inquiry. He advised the court he wished to elicit from Detective Giroux that the reason Campbell was not being called at trial was because the detective was aware Campbell may give evidence inconsistent with the Crown's theory of the case.

[58] The trial judge ruled the Crown could adduce evidence that Campbell had on three occasions given statements that were materially inconsistent with one another as to his presence at the scene. Secondly, he would permit Detective Giroux to testify he did not believe Campbell would be a reliable witness, and as a result did not subpoena him at trial. Detective Giroux was not permitted to comment on which version of Campbell's statements he believed to be the truthful one. Finally, depending on the cross-examination, the Crown attorney would not be permitted to get into the details of the statements made by Campbell.

[59] Further to this ruling, the Crown led the evidence permitted, in skeleton form, about Campbell's inconsistent statements and the officer's opinion that Campbell was an unreliable witness and hence, not being subpoenaed. In the result, defence counsel asked just one question, the proposed question prior to the trial judge's ruling, regarding the prospect of Campbell giving evidence contrary to the theory of the prosecution. Counsel received a favourable answer from the detective and asked no more questions about Campbell.

[60] In the result, the evidence of Campbell's testimony at the preliminary inquiry that Usher was the shooter was not pursued and was not heard by the jury.

(iii) The trial judge's charge regarding Campbell's absence as a witness

[61] The trial judge allowed defence counsel to argue in his closing that an adverse inference ought to be drawn against the Crown due to its failure to call Campbell. In his charge, the trial judge instructed the jury they were entitled to consider the absence of Campbell's evidence in determining whether or not the Crown had proven its case beyond a reasonable doubt. He referred to Campbell's record and his three inconsistent statements. He [page191] referred to Giroux's opinion that Campbell was unreliable and the officer's acknowledgment that Campbell may have given evidence contrary to the Crown's theory. The trial judge gave his opinion that no significant weight should be placed on the Crown's failure to testify. He told the jury that it would be speculative to assume that Campbell would have testified against the Crown, and they were in a poor position to draw inferences against the Crown. He emphasized, however, his view was not binding on them and they may draw the inference sought by the defence.

(iv) Position of the appellant

[62] The appellant argues the trial judge was wrong in law to permit Detective Giroux to give evidence expressing his opinion that Campbell was an unreliable witness and, therefore, not called by the Crown. It is argued that the decision not to call Campbell was a tactical one, and it is an error in law to permit evidence allowing the Crown to explain to the jury its tactics or strategy in the midst of a trial.

[63] The appellant also challenges the trial judge's instruction on the basis that having allowed defence counsel to ask the jury for an adverse inference, the trial judge effectively took the potential for such a finding away from them by expressing his view of the matter, including his opinion that the Crown had acted reasonably in not calling Campbell.

(v) Analysis

[64] The dangers and risks that occur when the defence attacks the integrity of an investigation, highlighted in Dhillon, arise again in the resolution of this ground of appeal.

[65] I agree with the Crown's submission that certain evidence, relevant to this point of appeal, led through the testimony of Detective Giroux, was negotiated and agreed to by both counsel and the trial judge. It is important to note the agreement was formed in the context of a specific aspect of the defence attack on the integrity of the investigation; the allegation that Giroux refused to consider Usher as a suspect following Campbell's testimony at the preliminary inquiry.

[66] From a tactical perspective, the defence, without calling Campbell, wished to accomplish two things. The first was to lead evidence through Giroux that Campbell, if called as a witness, might give evidence inconsistent with the theory of the Crown that the appellant was the shooter. Second, defence counsel wanted to argue before the jury that an adverse inference be drawn from the Crown's failure to call Campbell. [page192]

[67] Of equal importance was what the defence did not want admitted into evidence. Counsel did not want details of two of Campbell's prior statements implicating the appellant to be placed before the jury. Nor did counsel wish details of Campbell's criminal record elicited.

[68] It was in this context that the compromise was struck: a compromise that permitted Detective Giroux to give opinion evidence that Campbell was an unreliable witness because he gave three materially inconsistent statements. This was agreeable to the Crown because the jury knew why Campbell was not being called as a witness. It was agreeable to the defence for the strategic reasons stated.

[69] It is convenient to group the evidence of Detective Giroux on this aspect of the appeal into three categories. The first was permitting the defence to elicit from the detective that Campbell was available to testify, and if called, may give evidence inconsistent with the Crown's theory. This evidence is precisely what the defence sought and the appellant cannot be heard to complain.

[70] The second category consists of Giroux's evidence that Campbell made prior inconsistent statements and had a criminal record. Ordinarily, evidence of this kind led by the Crown, where Campbell is not called as a witness, is inadmissible. However, given the attack on the investigation, this evidence was relevant to rebut the attack that the investigators had tunnel vision as to the appellant being the shooter.

[71] The third category of Giroux's evidence relates to his opinion that Campbell was unreliable and, therefore, the reason the Crown was not calling him as a witness. This became the Crown's evidentiary platform to provide the jury in his closing with an explanation why Campbell was not called.

[72] Giroux's explanation of Campbell's absence was investigative opinion and hearsay. I agree with the appellant's submission that the calling of investigative opinion evidence to justify not calling a witness is improper. By logical extension, what would prohibit defence or Crown counsel in other cases from calling investigators or law students to justify a witness not being called?

[73] In R. v. Yaari, 1995 1751 (ON CA), [1995] O.J. No. 3030, 101 C.C.C. (3d) 401 (C.A.), this court held it improper for Crown counsel, in addressing the jury, to explain the reason for not calling a witness. Similarly, in R. v. Smith (1997), 1997 832 (ON CA), 37 O.R. (3d) 39, [1997] O.J. No. 4797, 120 C.C.C. (3d) 500 (C.A.), this court held it was inappropriate for defence counsel to justify not calling his client because in his opinion, the prosecution case did not call for a defence. Counsel's opinions are irrelevant. [page193]

[74] In this case, Crown counsel felt ethically bound not to call Campbell because he feared Campbell's evidence might perpetrate a falsehood on the court. Having taken that position, Crown counsel was concerned that his failure to call Campbell, without explanation, might lead to an adverse inference being drawn by the jury. Detective Giroux's expression of opinion as to Campbell's reliability allowed the Crown to do indirectly what he could not do directly.

[75] Crown counsel felt Campbell would mislead the court as a result of inconsistent statements. His decision not to call the witness was entirely proper: see R. v. Cook, 1997 392 (SCC), [1997] 1 S.C.R. 1113, [1997] S.C.J. No. 22, 114 C.C.C. (3d) 481, at pp. 1130-32 S.C.R., p. 494 C.C.C. That said, counsel is not entitled to provide an explanation by leading inadmissible hearsay evidence.

[76] I disagree with the appellant's complaint that the trial judge effectively took the potential for an adverse inference finding away from the jury. While he did express his opinion that he viewed the Crown's position for not calling Campbell a reasonable one, and that it was speculative as to what Campbell's testimony might be, the trial judge made it abundantly clear it was the jury's view that counted: see R. v Bettencourt, [2008] O.J. No. 1657, 2008 ONCA 337, at para. 8.

[77] Notwithstanding allowing Detective Giroux to give inadmissible opinion evidence as to Campbell's reliability, I am of the opinion this error did not affect the outcome of the trial. I come to this conclusion for three reasons.

[78] First, as explained, the evidence was admitted by agreement with defence counsel for tactical reasons. Moreover, defence counsel never took issue with the fact that Campbell was unreliable. The following submission, in the absence of the jury, prior to the charge, sums up his position:

The Crown Attorney is faced with a witness who is admittedly unreliable, and that is a generous characterization of him. He is an unreliable witness and that I'm not contesting. I recognize the Crown is in a hard place there. But the issue then becomes what impact does this have on the jury proper. Now, the Crown, in his submissions, can, you know, make reference as he indicated, that we didn't call Mr. Campbell because he was just so unreliable. Nobody knew what he was -- I didn't know what he was going to say based on that. He's too unreliable.

[79] What the defence sought, and was granted, was the right to argue to the jury Campbell was present at the shooting and was not called by the Crown.

[80] Second, the trial record reflects that by the conclusion of the evidence, neither the defence nor the trial judge viewed the adverse inference point as significant. The trial judge referred to [page194] it as a "tidbit" to which defence counsel agreed, stating he had "a lot more fertile ground to work with".

[81] Third, Campbell is now dead. While his death does not overcome the trial judge's error, if a new trial were ordered, the failure to call the witness would be moot.

[82] I would not give effect to this ground of appeal.

(c) The issue of prior consistent statements

[83] Evidence was admitted of statements made by Usher to various witnesses following the shooting. Shortly after the shooting, Usher went to a nearby motel where he spent the night before going to Montreal. At the motel, Usher spoke with the witness, Mohammed, from whom he borrowed the Aztec motor vehicle, and later, spoke with his wife. He recounted to those witnesses, in varying degrees of detail, his account of what had occurred a few hours earlier.

[84] The appellant complains the trial judge erred in admitting the evidence of these oral statements. It is submitted Usher's utterances were neither essential to the narrative nor of assistance in assessing his state of mind. Further, it is submitted the jury would have been confused as to the proper use they were entitled to make of these statements arising out of an inconsistency between the trial judge's mid-trial instruction and his final instruction to the jury. I disagree with these submissions.

[85] Defence counsel, while disagreeing that the oral statements could be used to rebut the allegation of recent fabrication, specifically agreed the evidence was admissible. Not only were the statements part of the narrative but they were important to the defence in its claim that Usher concocted lies as to his role in the deceased's death from the time of the shooting. Indeed, the defence proceeded to elicit inconsistencies in those statements to support its theory Usher told an evolving set of lies from the beginning.

[86] With the agreement of counsel, the issue of the proper use of the statements was deferred to the end of the trial. The trial judge agreed with defence counsel's submissions the statements could not be used to rebut an allegation of recent fabrication. In meticulous fashion, the trial judge charged the jury as to the proper limited use of the evidence as well as instructing the jury with respect to its impermissible uses. He told the jury the evidence was admissible to prove the narrative of events immediately after the murder and to prove Usher's state of mind when he went to Montreal. He carefully instructed the jury the statements were not admissible to prove the truth of their contents. [page195] Further, the statements were not admissible "as a consistent statement to be used in assessing his (Usher's) credibility".

[87] It is true the trial judge was in error in his mid-trial instruction when he told the jury Usher's utterances could be used in assessing his credibility as a witness. However, this error was corrected in his final instructions. The jury could be left in no doubt as to the proper uses of the evidence. I would dismiss this ground of appeal.

(d) Other issues

(i) Judge's remarks concerning prior miscarriages of justice

[88] The appellant raised several other grounds of appeal with respect to the conviction upon which we did not find it necessary to call upon Crown counsel to respond. I wish, however, to comment on one of those grounds. In his closing address, defence counsel, in an exhibition of unacceptable rhetorical excess, told the jury, "the penitentiaries of this country are littered with innocent people who are in jail solely because of shoddy or corrupt police investigations". In response to counsel's remarks, the trial judge commented in his final instructions on miscarriages of justice involving the prosecution of Guy Paul Morin, Donald Marshall and David Milgaard. This is what he said:

You are required by your oath of office to consider the evidence in this case, the submissions of counsel and my instructions to you. If, after diligently doing so, you are satisfied beyond a reasonable doubt of the guilt of the defendant, you must return a verdict of guilty against him. To decline to return a verdict of guilty if you are satisfied beyond a reasonable doubt of the guilty of the defendant because of the miscarriages of justice in other cases would be an improper step on your part.

[89] This court in R. v. Horan, [2008] O.J. No. 3167, 2008 ONCA 589, held that reference in a jury address to a parade of wrongful convictions outside a relevant context such as eyewitness identification risked inviting the jury to take into account irrelevant and imaginary dangers. Further "[t]he invitation to avoid convicting so as not to add to the list of wrongfully convicted is a form of intimidation that can be compared to the 'timid juror' instruction": see para. 67. Those comments are of particular application to this case. The trial judge's instruction was necessary and free of legal error.

(e) The sentence appeal

[90] The appellant was sentenced to life imprisonment without eligibility for parole for 20 years. Sentences of ineligibility for parole for 20 years are reserved for offenders who have an [page196] established pattern of violence in their lives from which it can be reasonably inferred that they present a high risk to re-offend in a violent manner. The appellant is such a man.

[91] In 1994, he shot another man with a 9 mm handgun, striking his victim in the chest and the leg. The victim survived the shooting. The appellant was sentenced to seven years in the penitentiary for aggravated assault. In sentencing the appellant at that time, Locke J. observed the appellant was a danger to society and his chances for rehabilitation were slim. Those comments were prophetic.

[92] In May 1999, the appellant was released from the penitentiary on mandatory supervision. In May 2000, he was arrested for a breach of the terms of his parole. In December 2000, the parole board reviewed his detention and declined to release him until the warrant expired in September 2001. The parole board was satisfied the appellant would likely commit an offence causing bodily harm to another person. He was released from the penitentiary approximately three months before killing Mr. Bryan.

[93] In addition to the aggravated assault offence, the appellant had been previously convicted of two robberies, assault and discharging a firearm with intent to wound.

[94] The killing of David Bryan was a cold-blooded execution. I agree with the trial judge that the appellant is a dangerous man and an individual with a high risk of committing future acts of violence. The trial judge committed no error in fixing a period of 20 years' eligibility for parole.

Disposition

[95] Accordingly, I would dismiss the appeal from conviction and from the period of parole ineligibility.

Appeal dismissed.