CITATION: R. v. Lewis, 2009 ONCA 874

DATE: 2009-12-09

DOCKET: C47763

Court of Appeal for Ontario

Before: Moldaver, Armstrong and Rouleau JJ.A.

BETWEEN

Her Majesty The Queen Respondent

and

Imo Atiba Lewis Appellant

Counsel: Heather A. McArthur and Victoria Rivers, for the appellant John McInnes, for the respondent

Heard: October 8, 2009

On appeal from the convictions for second degree murder and attempted murder entered by Justice Nancy M. Mossip of the Superior Court of Justice, sitting with a jury, on June 27, 2007.

Moldaver J.A.:

INTRODUCTION

[1] The appellant, Imo Lewis, was tried by Mossip J. and a jury on one count of second degree murder and one count of attempted murder. On June 27, 2007, he was found guilty as charged. He appeals from conviction on both counts.

[2] The offences in issue arose out of the same incident. The murder count related to the shooting death of Joines Connolly; the attempted murder count related to the non-fatal shooting of Andres Sotomayor.

[3] At the time of the shootings, Connolly and Sotomayor were at a neighbourhood bar, seated around a table with their mutual friend Nikita Mazur. Mazur was not injured in the gun fire, and he and Sotomayor provided identification evidence implicating the appellant as the shooter.

[4] Sotomayor’s evidence was given in the normal course. Mazur’s evidence, however, took the form of an audio recording of his testimony from the appellant’s preliminary inquiry – the reason being that he had moved to the Ukraine and was not available to testify at trial.

[5] Mazur’s evidence is central to the appellant’s appeal. It gives rise to the following two issues:

1. Was the audio recording of Mazur’s testimony at the preliminary inquiry admissible at trial?

2. If so, should it have attracted a Vetrovec warning?

[6] The trial judge admitted Mazur’s evidence under s. 715 of the Criminal Code, R.S.C. 1985, c. C-46. That provision provides that where evidence is given by a witness in the presence of the accused on the preliminary inquiry into the charge, and facts are proved on oath from which it can be inferred reasonably that the witness is absent from Canada, the previous testimony may be admitted as evidence at the accused’s trial unless the accused proves that he or she did not have full opportunity to cross-examine the witness.

[7] The appellant submits that s. 715 was unavailable in respect of Mazur’s evidence because he did not have full opportunity to cross-examine Mazur. Alternatively, he submits that the trial judge should have exercised her residual discretion under s. 715 to exclude Mazur’s evidence because its admission, in the circumstances, rendered his trial unfair.

[8] The Crown disagrees with the appellant and submits that the trial judge made no error in her interpretation of s. 715 or in her reasons for admitting Mazur’s evidence under it. Alternatively, the Crown submits that if Mazur’s evidence was not admissible under s. 715, it was admissible under the principled approach to the admission of hearsay evidence – a proposition which the appellant refutes.

[9] As for the Vetrovec issue, the appellant submits that if Mazur’s evidence was admissible, the trial judge should have given a Vetrovec warning in relation to it because Mazur was an important Crown witness and his evidence suffered from many credibility problems.

[10] The Crown disagrees and submits that the appellant’s failure to ask for a Vetrovec warning is fatal to the position he now advances for the first time on appeal. Regardless, the Crown maintains that the trial judge thoroughly instructed the jury on the frailties associated with Mazur’s evidence, along with the need to approach it with care and caution, and submits that nothing more was required in the circumstances.

[11] For reasons that follow, I am satisfied that Mazur’s evidence from the preliminary inquiry was admissible and properly received. I am further of the view that the trial judge was not obliged to provide the jury with a Vetrovec warning in relation to it. The only other ground of appeal relates to an item of evidence that the trial judge left with the jury as potentially confirmatory of Sotomayor’s testimony. In oral argument, counsel for the appellant, Ms. McArthur, fairly conceded that there was much less to this ground of appeal than she had originally anticipated. I agree. Standing alone, it could not possibly result in a successful appeal, regardless of its merit.

[12] Accordingly, I would dismiss the appeal from conviction.

OVERVIEW OF FACTS

[13] Because the issues on appeal are narrow and focus essentially on Mazur’s evidence, I propose to limit my review of the facts to a brief overview, adding detail where necessary to flesh out a particular ground of appeal.

[14] On August 30, 2005, at approximately 11:50 p.m., Andres Sotomayor, Joines Connolly and Nikita Mazur were seated in the patio area of D’Martini’s, a bar in Mississauga, awaiting the arrival of Tony Calvo. Sotomayor and Calvo had been long time friends and business associates in the drug trade. Earlier that day, however, they had come to blows over Sotomayor’s belief that Calvo was sleeping with Sotomayor’s ex-wife, Erica.

[15] The altercation took place in Calvo’s apartment. It was observed by Mazur, who had met his friend Sotomayor and accompanied him to Calvo’s apartment. Mazur interceded and broke up the fight. In the course of the altercation, Sotomayor demanded the repayment of $4,000 in drug money that Calvo owed him and the return of $15,000 worth of cocaine and 800 ecstasy pills. Calvo gave him $200 which was all the money he had on hand. Sotomayor also told Calvo that he could no longer sell drugs in the Peel area.

[16] After Mazur had interceded, he suggested that Calvo and Sotomayor speak directly to Erica and the three men left Calvo’s apartment. When Sotomayor and Mazur entered the elevator, Calvo took flight and succeeded in escaping. As Sotomayor and Mazur came out of the building, they saw Erica. She denied seeing Calvo or knowing his whereabouts. Sotomayor threatened her for sleeping with Calvo and then proceeded to slash two tires on Calvo’s car.

[17] Upon leaving the building, Sotomayor and Mazur drove around looking for Calvo, without success. While still in the car, Sotomayor called Kurt Downer, a friend and drug-dealing associate, who was also a close friend of Calvo. Sotomayor told Downer about his falling out with Calvo but assured Downer that this had nothing to do with him. He also reached Calvo on the phone and he and Calvo traded threats. Mazur, who was seated beside Sotomayor in the car, described how Calvo and Sotomayor were yelling and screaming at each other and he overheard Sotomayor say: “if you want to fucking bring it, bring it hard.”

[18] As the evening progressed, Sotomayor spoke again with Downer and arrangements were made for Sotomayor and Calvo to meet later that night to resolve their differences. Calvo was to pay back the money he owed to Sotomayor.

[19] To that end, Sotomayor and Mazur drove to the Mississauga area. They met with their friend Joines Connolly and at about 10:00 p.m., they went to the parking lot of an apartment building where the rendezvous with Calvo was supposed to occur. When Calvo did not show up at the prearranged time, Sotomayor called Downer and was told that Calvo was having a hard time getting the money together. Sotomayor replied that he would wait for Calvo at D’Martini’s Bar. Sotomayor, Connolly and Mazur arrived at D’Martini’s at around 11:00 p.m. and took a table on the patio.

[20] Shortly after their arrival, Sotomayor and Mazur noticed the appellant. He had parked his white Land Rover down the street and was walking up the wheel chair ramp leading into the bar. As he passed the Sotomayor group, who were seated beside the ramp, the appellant touched fists with them and then joined their table.

[21] Sotomayor knew the appellant. He had met him on about five prior occasions in the company of Downer. According to Sotomayor, the appellant and Downer were very close. The appellant’s white Land Rover was regularly parked at Downer’s residence and from what Sotomayor could make out, the appellant appeared to be Downer’s lackey.

[22] Mazur also recognized the appellant. He had seen him the previous night in the company of Downer and others. He and Sotomayor had met the Downer group on the street and they ended up giving Downer a ride home to his apartment at Kipling and Dundas.

[23] According to Sotomayor and Mazur, the appellant knew about the proposed meeting with Calvo and he made several phone calls and assured Sotomayor that Calvo would be there shortly. In the brief timeframe leading up to the shooting, the appellant got up from the table several times and was seen speaking on his cell phone. On two occasions, he returned to his white Land Rover. On the second occasion, he appeared to take something from the rear seat just before he started to walk back to the bar. At that time, another car pulled up. Sotomayor felt that something was wrong. Mazur heard him say “what the fuck is Snipes [Downer] doing here?”.

[24] Sotomayor and Mazur then saw a man, believed to be Shimmiha Duhaney, a friend of Downer and Calvo, get out of the second car and run to the appellant’s white Land Rover. As Duhaney was entering the driver’s door, the appellant was proceeding up the wheel chair ramp. As he got close to the Sotomayor group, he pulled a gun from underneath the waistband of his pants and opened fire. In an effort to grab the gun from the appellant’s hand, Sotomayor pushed Mazur to the ground and leaped towards the appellant. It was then that he was struck by a bullet. Connolly was also shot and he eventually succumbed to his wounds after crawling inside the restaurant from the patio.

[25] Sotomayor, though wounded, went after the appellant, but could not see him. Mazur crawled inside the restaurant. He did not see the actual shooting or the shooter because Sotomayor had pushed him to the ground. He only saw the appellant coming towards them just before the shooting and heard a gun go off right behind his head.

[26] A number of civilian witnesses saw a black man, dressed in black clothing, on the patio and inside portion of D’Martini’s around the time of the shooting. Some noticed he was constantly talking on a cell phone; others saw him shooting a gun from the wheel chair ramp. Their description of the shooter fit the description of the appellant given by Sotomayor and Mazur. Civilian witnesses also observed a white Land Rover speeding away from the scene moments after the shooting.

[27] Cell phone records from the phones used by Sotomayor, Mazur, Downer, Duhaney and Calvo confirmed extensive contact between Sotomayor, Calvo and Downer in the aftermath of the afternoon confrontation between Sotomayor and Calvo at Calvo’s apartment. They also confirmed later contact between Downer, the appellant and Duhaney. In particular, between 10:00 and 11:49 p.m., there were 17 calls between Downer’s phone and the appellant’s phone, and 5 calls between the appellant’s phone and Duhaney’s phone. In the same timeframe, there were numerous calls between Sotomayor’s phone and Downer’s phone, and Sotomayor’s phone and Calvo’s phone. Importantly, in the immediate timeframe leading up to the shooting, all of the calls made from the phones associated with the appellant, Sotomayor, Downer and Duhaney registered on the cell towers closest to D’Martini’s.

[28] It will be apparent from this summary that Mazur’s evidence, though not essential to the Crown’s case, was certainly of assistance. Mazur effectively shadowed Sotomayor on the day of the shooting and his evidence largely confirmed Sotomayor’s evidence as to the salient events.

[29] It is against that backdrop that I turn to the first ground of appeal.

ISSUE ONE: DID THE TRIAL JUDGE ERR IN ADMITING MAZUR’S TESTIMONY FROM THE PRELIMINARY INQUIRY?

Background Facts

[30] As indicated, this issue turns initially on whether the preconditions warranting the admission of Mazur’s testimony from the appellant’s preliminary inquiry were met. Some additional facts are needed to bring the issue into focus.

[31] On August 31, 2005, the day following the shootings, Mazur was interviewed by the police. He claimed he had no involvement in the shootings and denied knowing the victims or the shooter. As he was leaving the police station, Mazur was apprehended and returned to the station. The police had learned that he and Sotomayor were friends and they wanted to know why he had denied knowing Sotomayor. Once again, Mazur claimed no involvement in, or knowledge of, the shootings.

[32] On September 9, 2005, the police took a third statement from Mazur in which he was somewhat more forthcoming but continued to minimize his involvement. By this time, the police had arrested and charged the appellant and Downer with the murder of Connolly, and the attempted murder of Sotomayor.

[33] Thereafter, based on their continuing investigation, the police charged Mazur with robbery, arising out of the altercation between Sotomayor and Calvo at Calvo’s apartment on the day of the shootings. Mazur received bail on the robbery charge and remained at large until March 17, 2006, when he was arrested for breaching a condition of his release order.

[34] Following his arrest on the breach charge, Mazur was detained at the Maplehurst Correctional Institute. He retained Mr. Dhaman Kissoon to represent him. One week later, on March 26, when Mr. Kissoon appeared for Mazur in bail court, Crown counsel advised that she would be opposing Mazur’s release on the breach charge and would be seeking to revoke and estreat his bail on the robbery charge.

[35] That is how matters stood when Mazur, on his own, without Mr. Kissoon’s knowledge or approval, contacted the officer in charge of the Connolly murder investigation and asked to see him at the Maplehurst Correctional Institute. At their meeting, which occurred on April 4, 2006, Mazur provided an audio-recorded statement in which he identified the appellant as the “trigger man” and recounted the events of August 29 and 30, 2005, beginning with his brief encounter with the appellant on the night of the 29th, and culminating in his description of the shootings at D’Martini’s on the night of the 30th.

[36] Four weeks later, on May 3 and 4, 2006, Mazur testified at the appellant’s preliminary inquiry. His evidence mirrored the contents of his April 4 statement. Additionally, for the first time, he selected the appellant as the person he believed had fired the shots. Prior to that, Mazur had not physically identified the appellant in a photo lineup or otherwise, even though on August 31, 2005, when he was first interviewed by the police, Mazur was shown a series of photographs that included the appellant. He said nothing at the time because he wanted no involvement in the matter. On April 4, 2006, when he provided the police with an accurate account of the events, the police did not bring any photographs of the appellant with them.

[37] On April 26, some three weeks after Mazur had provided his April 4 statement, Mr. Kissoon appeared yet again in bail court and tried to persuade the Crown, Mr. Raftery, to agree to Mazur’s release on the breach charge. Mr. Raftery told Mr. Kissoon that he was aware of Mazur’s potential involvement as a witness in the Connolly murder. He said he wanted to speak to the investigating officer on that matter and would “consider bail depending on [that] discussion.” Mazur’s bail hearing was adjourned to the next day, at which time Mr. Raftery told Mr. Kissoon that he would “consider agreeing to bail for Mazur if Mazur testified at the appellant’s preliminary inquiry.” The bail hearing was accordingly adjourned to May 12, 2006 and in the interim, Mazur testified at the appellant’s preliminary inquiry. On May 12, the Crown consented to Mazur’s release on the breach charge.

[38] Prior to the commencement of the appellant’s preliminary inquiry, his counsel, Mr. Hinkson, had, with one exception, received disclosure of all of the pertinent information relating to Mazur. The disclosure included his various statements to the police, his criminal record, his previous involvement with drugs, his outstanding robbery charge, for which he had received bail, and his outstanding breach charge, for which he was in custody, with the Crown opposing bail.

[39] The one piece of information that Mr. Hinkson did not have related to the discussions between Mr. Kissoon and Mr. Raftery on April 26 and 27, 2006, concerning the possibility of Mazur’s release on the breach charge should he testify at the appellant’s preliminary inquiry. That information slipped through the cracks, in part it seems, because Mr. Raftery was not the Crown assigned to the appellant’s case and he did not conduct the preliminary inquiry. Be that as it may, it is common ground that the failure to disclose occurred through inadvertence.

[40] That is the background upon which the appellant rests his central submission that Mazur’s evidence should not have been received under s. 715 of the Criminal Code. In short, he submits that the Crown’s failure to disclose the pertinent discussions about the possibility of bail for Mazur’s testimony deprived him of information upon which he would have cross-examined Mazur had the Crown met its disclosure obligations. It follows, he submits, that he “did not have full opportunity to cross-examine” Mazur – a prerequisite to admissibility under s. 715.

[41] Alternatively, the appellant submits that because he was denied the opportunity, through lack of disclosure, to cross-examine Mazur on a matter that went directly to Mazur’s credibility and provided him with a “powerful motive to lie”, the admission of Mazur’s evidence deprived him of a fair trial. As such, the trial judge should have exercised her residual discretion in his favour and ruled Mazur’s evidence inadmissible: see R. v. Potvin, 1989 130 (SCC), [1989] 1 S.C.R. 525 per Wilson J. for the majority at pp. 547-553.

[42] The trial judge rejected both of those arguments. As for the appellant’s primary submission, she was satisfied that the appellant’s counsel “had full opportunity to cross-examine Mr. Mazur at the Preliminary Inquiry with respect to the truthfulness of his testimony that Mr. Lewis was the shooter on August 30, 2005.”

[43] With respect to the appellant’s alternate submission, although the trial judge did not address the issue of trial fairness explicitly, she pointed out, at para. 14 of her reasons, that the circumstances surrounding the so-called “deal” could be brought to the attention of the jury through the evidence of Mr. Kissoon and possibly the officer in charge or the Crown in charge. She went on to state that it would be for the jury to decide the impact of any such “deal” on “the reliability of Mr. Mazur’s testimony at the Preliminary Inquiry … as to his identification of Mr. Lewis as the shooter.”

Analysis

Relevant statutory provision

[44] Section 715(1) of the Criminal Code provides:

Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person

(a) is dead,

(b) has since become and is insane,

(c) is so ill that he is unable to travel or testify, or

(d) is absent from Canada,

And where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness. [Emphasis added.]

Meaning of the words “full opportunity to cross-examine”

[45] This issue turns initially on the meaning of the words “full opportunity to cross-examine”.

[46] The appellant submits that he did not have full opportunity to cross-examine Mazur because he was deprived of information upon which he would have cross-examined had the Crown met its disclosure obligations.

[47] The Crown, on the other hand, submits that the “full opportunity” requirement in s. 715 is not concerned with questions that could have been asked had the defence had more information, but with whether “the intention or desire to pursue certain questions was present and was frustrated”: per Wilson J. in. Potvin at p. 547.

[48] The problem, I confess, is a thorny one. To date, I know of no Canadian authority in which the “full opportunity” requirement has been interpreted in the context of information that should have been disclosed at, or before, the preliminary inquiry but was not.

[49] In R. v. Barembruch (1997), 1997 12518 (BC CA), 119 C.C.C. (3d) 185 (B.C.C.A.), the accused was charged with sexual assault and unlawful confinement. The case against him rested almost exclusively on the evidence of the complainant, who was a known drug addict and prostitute.

[50] On the morning of the preliminary inquiry, the complainant showed up in court, but left the building before the case was called. The investigating office located her and returned her to the Crown’s office, where she engaged in bizarre and threatening behaviour and had to be restrained in handcuffs. She was very distraught and made it known that she did not want to testify. Her primary concern related to the length of time she would be on the stand. She did not want to stay long and it was self-evident that she was intent on obtaining some form of drug.

[51] Despite this, the Crown convinced the complainant to testify and she was cross-examined at length. In particular, she was questioned about her use of drugs and repeatedly confronted with the suggestion that her involvement with the accused on the day of the alleged offence was motivated by her need for drugs. Defence counsel, however, was unaware of the events that had transpired that morning in the Crown’s office. He learned of them between the time of the preliminary inquiry and the trial.

[52] Prior to trial, the complainant died. At trial, over the objection of defence counsel, Crown counsel sought to have the complainant’s evidence from the preliminary inquiry introduced under s. 715 of the Criminal Code. The trial judge acceded to the Crown’s request. In doing so, he rejected defence counsel’s submission that, in the circumstances, the admission of the complainant’s testimony would “operate unfairly and deprive him of his right to a fair trial.”

[53] Barembruch was convicted. On appeal, Hollinrake J.A., for the court, first observed that counsel on appeal (who was also defence counsel at trial) was not faulting the Crown for having failed to disclose the morning’s events before he began his cross-examination at the preliminary inquiry. No malefides on the part of the Crown was suggested.

[54] Having made that observation, Hollinrake J.A. commenced his analysis by noting, at para. 18, that he did “not view this as a failure to disclose case.” He then went on to find that in the circumstances, “the death of the complainant … left the appellant in the position, through no fault on the part of anyone, of not being able to exercise his constitutional right to full answer and defence.” As such, he felt that it was incumbent on the trial judge, as a matter of principle, “to exercise his discretion under s. 715 of the Criminal Code against the admissibility of this evidence” (emphasis added). By way of explanation, he continued at paras. 18 and 19 as follows:

I reach this conclusion because in my opinion this conduct of the complainant immediately before giving her evidence was such as could have led to telling cross-examination of her on the issue of credibility which was the primary issue before the court. That was denied the appellant.

In my opinion it is not enough to say that defence counsel conducted a thorough cross-examination of the complainant when the facts I have outlined above on the issue of credibility were unknown to him. I have no hesitation in concluding that the absence of this knowledge on the part of defence counsel in this case amounted to a denial of the appellant’s right to full answer and defence rendering the trial an unfair one. [Emphasis added.]

[55] While not determinative, Hollinrake J.A.’s analysis tends, in my view, to support the Crown’s position that the “full opportunity” requirement in s. 715 was not meant to apply to questions the defence would have asked had it been aware of information it should have received by way of disclosure. Were it otherwise, the court in Barembruch could have arrived at the conclusion it did by simply noting the non-disclosure, and finding that by reason of it, the accused did not have “full opportunity to cross-examine” the complainant.

[56] That said, I acknowledge that the argument in Barembruch was framed in terms of trial fairness and it may be reading too much into the decision to conclude that the court construed the “full opportunity” requirement as the Crown in the instant case contends we should.

[57] I am however, of the view, that the “trial fairness” approach used by the British Columbia Court of Appeal is the correct one. The single qualification I would make is that the Crown’s failure to disclose could, in my respectful view, be a factor for the trial judge to consider in assessing whether the proposed evidence should be excluded under s. 715 on grounds of trial fairness. On a close call, for example, the Crown’s failure to disclose might well tip the balance in favour of exclusion. Certainly, a flagrant and deliberate breach involving highly relevant information would be more serious than an inadvertent one involving information of marginal relevance.

[58] I find support for the approach I am advocating in R. v. Michaud (2000), 2000 14347 (NB CA), 144 C.C.C. (3d) 62 (N.B.C.A.) – although I readily acknowledge that the “missing” information in Michaud had nothing to do with the Crown’s failure to disclose. It was discovered by the defence after the evidence, which the Crown sought to tender under s. 715, had been completed.

[59] Michaud was charged with murder. At both his preliminary inquiry and first trial, a witness by the name of Albert testified that, on the night of the murder, he and Michaud had gained entry into the victim’s home and while Albert did other things, Michaud raped and killed the victim. The two men then set fire to the victim’s home with a view to eliminating any vestige of their presence at the scene.

[60] Albert was thoroughly cross-examined at Michaud’s preliminary inquiry and first trial. Michaud was convicted, but a new trial was ordered on appeal. Before the second trial commenced, two things occurred. First, Albert committed suicide. Second, the defence discovered several witnesses who provided new information that might have proved useful in impugning Albert’s credibility at the previous proceedings.

[61] At the second trial, over defence counsel’s objection, the trial judge allowed the Crown to adduce Albert’s testimony from the preliminary inquiry and the first trial. Michaud was again convicted of murder.

[62] On appeal, Michaud argued that Albert’s evidence should not have been admitted under s. 715 for two reasons. First, he claimed that in the prior proceedings, he did not have “full opportunity to cross-examine” Albert because he was unaware of the recently discovered information that he could have used to impugn Albert’s credibility. Second, he claimed that, in the circumstances, having regard to the newly discovered evidence, the admission of Albert’s testimony rendered his trial unfair and, as such, the trial judge should have rejected it in the exercise of his residual discretion.

[63] Speaking for the court, Drapeau J.A. rejected both of Michaud’s arguments. For present purposes, it is his analysis of the first issue that I find instructive.

[64] On that issue – whether Michaud did not have full opportunity to cross-examine Albert – Drapeau J.A. said the following at paras. 20 and 21 of his reasons:

It is settled law that s. 715 is not concerned with the fact of cross-examination but with the opportunity to cross-examine. See the annotation by Professor Delisle at (1986), 1986 104 (MB CA), 50 C.R. (3d) 193, and R. v. Potvin, 1989 130 (SCC), [1989] 1 S.C.R. 525, at p. 543. I venture to say that no cross-examination ever takes place in circumstances where counsel is fully aware of all the information that might prove useful in challenging the credibility of the witness. In my view, if this court were to adopt the restricted interpretation championed by Mr. Michaud, it would strip s. 715(1) of any meaningful application; it is a result that is mandated neither by the terms employed by Parliament nor by any binding authority.

As a general rule, an accused can successfully claim not to have had “full opportunity to cross-examine” within the meaning of s. 715 when the presiding judge deprived him or her of the right to counsel or curtailed cross-examination by the imposition of improper limitations or restrictions. See R. v. Davidson (1988), 1988 7067 (ON CA), 42 C.C.C. (3d) 289 (Ont. C.A.), per Martin J.A. Now that R. v. Potvin has imported into s. 715(1) a residual discretion to exclude otherwise admissible prior testimony, there is no need to deform the expression “opportunity to cross-examine” by giving it a meaning that it cannot reasonably bear. As Justice Wilson explained in Potvin, at p. 547, “a denial or restriction [of cross-examination] can only have taken place if the intention or desire to pursue certain questions was present and was frustrated.” In my view, an accused person’s ignorance of potentially useful information does not deprive him or her of “full opportunity to cross-examine” within the meaning of section 715(1). [Emphasis added.]

[65] Having identified the governing principles, Drapeau J.A. observed, at para. 23, that Michaud’s counsel had cross-examined Albert at length, both at the preliminary inquiry and the first trial, and there was no suggestion that his right of cross-examination had been “improperly restricted or limited”. It followed, according to Drapeau J.A. that: “… there is no merit to Mr. Michaud’s complaint that he did not have full opportunity to cross-examine Mr. Albert in the previous proceedings. Indeed, I am satisfied that Mr. Michaud was allowed to fully exercise his right of cross-examination ‘in the broad and generous manner befitting its constitutional status’”: see Potvin at p. 544.

[66] I agree with Drapeau J.A.’s analysis and conclusion and find it apposite to the case at hand, despite the obvious differences relating to the discoverability of the missing information and the Crown’s failure in the present case to meet its disclosure obligations.

[67] In both Michaud and the case at hand, defence counsel lacked information that might have proved useful in attacking the credibility of a witness whose evidence the Crown wished to introduce under s. 715. What differs is not “the fact” that relevant information was missing, but the reason for it. With that in mind, where the task at hand is to determine the meaning of the words “full opportunity” in s. 715, I find it incongruous to suggest that counsel for the appellant in the instant case did not have full opportunity to cross-examine Mazur, whereas counsel in Michaud did have full opportunity to cross-examine Albert.

[68] The better approach, in my view, is to limit consideration of the “full opportunity” requirement to cases where, for example, a witness refuses to answer questions in cross-examination, a witness dies or disappears in the midst of cross-examination, or where the presiding judge curtails cross-examination by imposing improper limitations or restrictions. It should not apply where the failure to cross-examination stems from an accused person’s ignorance of potentially useful information, no matter the cause or reason. Those situations, in my view, are best dealt with under trial fairness, where, as I have indicated, the reason for the missing information can properly be taken into account as a factor.

[69] To hold otherwise, as the appellant contends we should, would render s. 715 valueless in any case where it could be shown that the Crown, through inadvertence, had failed to disclose an item of evidence that could have been used for cross-examination, regardless of its degree of relevance or probity. Thus, for example, in Mazur’s case, failure to disclose an old conviction for impaired driving or common assault would, on the appellant’s thesis, be fatal to the admission of his evidence under s. 715. I refuse to construe s. 715 that way, preferring instead a more robust interpretation.

[70] Applying the construction I favour to the present case, I have no doubt that the appellant had full opportunity to cross-examine Mazur at the preliminary inquiry. Between his counsel and counsel for his then co-accused Downer, Mazur was extensively questioned over the course of two days. His cross-examination, which filled 138 pages of transcript, included everything from his criminal background and history, to his use of drugs, his purported ability to identify the appellant, his prior inconsistent statements to the police and his motivation for speaking to the police on April 4 and implicating the appellant as the shooter.

[71] With respect to the last of these matters – his motivation for implicating the appellant as the shooter – he testified that he did so to clear his conscience and because he was upset with Calvo for having accused him of robbing Calvo at Calvo’s apartment. He also stated that his family had recently been threatened. He was not asked, nor did he volunteer any information about the possibility of obtaining bail on the breach charge in return for testifying at the appellant’s preliminary inquiry.

[72] Only once, during Mazur’s cross-examination, was counsel for the appellant’s co-accused prevented from questioning him. The proposed question related to the circumstances giving rise to the March 2006 breach charge for which Mazur was being held in custody.

[73] The appellant, for the first time on appeal, has raised that restriction, which all agree was the product of an erroneous evidentiary ruling, as a basis for contending that he did not have full opportunity to cross-examine Mazur under s. 715. That argument can be dealt with summarily. It has no merit, in my view, for several reasons.

[74] First, Mr. Hinkson, who represented the appellant at the preliminary inquiry and at trial, did not question Mazur about the breach charge and made no attempt to correct the preliminary inquiry judge’s erroneous ruling, even though he had overnight to research the point before resuming his cross-examination of Mazur the following day. Second, he did not raise the so-called “restriction” before the trial judge as a basis for resisting the Crown’s application to have Mazur’s evidence from the preliminary inquiry introduced under s. 715.

[75] Those two factors alone indicate to me that Mr. Hinkson did not view the erroneous evidentiary ruling as having deprived him of “full opportunity” to cross-examine Mazur. More to the point, just as I have refused to interpret the “full opportunity” requirement in a way that would effectively emasculate s. 715 in any case of non-disclosure, no matter the reason or the trivial nature of the missing information, so too, I reject an interpretation that would effectively stultify it in cases where erroneous evidentiary rulings of a non-jurisdictional nature have prevented cross-examination on isolated matters. This is to be contrasted with evidentiary rulings that, for example, place a blanket proscription on counsel’s right to cross-examine on matters of credibility at a preliminary inquiry.

[76] In short, I favour a more robust interpretation of s. 715 – one which recognizes its vital objective of ensuring that important and highly probative evidence is not lost because of the unavailability of a witness at trial: see Potvin at p. 553.

Trial Fairness

[77] Nor would I accede to the appellant’s alternate submission that the admission of Mazur’s evidence rendered his trial unfair. In that regard, I am not at all persuaded that his inability to cross-examine Mazur about the so-called “bail for testimony” inducement or the circumstances surrounding his breach charge, deprived him of his right to a fair trial.

[78] The breach charge involved a breach of curfew. The circumstances surrounding it were brought to the jury’s attention and it was for the jury to decide how, if at all, Mazur’s apparent disdain for authority and lack of trustworthiness impacted on his credibility. What the jury was missing was Mazur’s explanation for having committed the breach. That could only have inured to the appellant’s benefit.

[79] As for the “bail for testimony” inducement, once again, the jury was made aware of all of the circumstances surrounding it, including its lack of formality and amorphous nature. While I do not doubt that it could have been the subject of cross-examination, it must be remembered that Mazur was cross-examined about his motivation for implicating the appellant as the shooter. The jury heard his explanations, which it could weigh against the backdrop of the “bail for testimony” inducement and Mazur’s failure to mention it. As with the circumstances surrounding the breach charge, what the jury lacked was Mazur’s explanation for not referring to it in his testimony. This too, could only have inured to the appellant’s benefit, especially since Mazur’s testimony tracked what he told the police on April 4, several weeks before the issue of “bail for testimony” had even been broached. And while it is true that Mazur only physically identified the appellant for the first time at the preliminary inquiry, according to the investigating officer, he did so verbally in his April 4 statement.

[80] All of this is to say that the worth of the purported inducement, as a measure of Mazur’s overall credibility, was arguably not all that great.

[81] Be that as it may, trial counsel for the appellant was not deterred from raising the bail for testimony issue with the jury. Indeed, he devoted the better part of five pages of his closing address to the matter, urging the jury to find that Mazur falsely identified the appellant at the preliminary hearing so that he could be released on bail and regain his freedom. The trial judge, in her charge, which was both fair and thorough, reviewed the pertinent evidence surrounding the issue of bail and reiterated defence counsel’s position in relation to it.

[82] The following excerpts from defence counsel’s closing address are, in my view, instructive. They show how fully and effectively he was able to use the “bail for testimony” inducement as a basis for impugning Mazur’s testimony:

August 31st up to September 9th he never saw – didn’t know who the shooter is. April 4th, 2006 he has a revelation. But we know from the testimony of his lawyer, Mr. Kissoon, that on March 16th, 2006, Nikita Mazur is arrested for fail to comply. So when he speaks to the police on April 4th, 2006, Nikita Mazur is in custody. He’d been there since March 16th of that same year. So beforehand he’s out of custody, last statement he’s in custody. We know from his lawyer, Mr. Kissoon, that Nikita Mazur had a problem with bail. He couldn’t get bailed out because the Crown was opposed to his release on fail to comply charges. His mother was not acceptable as a surety. The Crown wanted to take away, forfeit the money posted for bail and they wanted to cancel the bail for the robbery charge. In other words, Nikita Mazur was not going anywhere in terms of bail as of March 16th, 2006. He was stuck in custody.

So what did Mr. Mazur do? He then makes contact with the police. He says he wants to clear his conscience. A conscience which didn’t need to be cleared before when he was out of custody, all of a sudden it needed to be cleared now when in custody.

A statement was taken April 4, 2006, and doesn’t result in Mr. Mazur being released from custody though. And you can understand that because prior to [that] he had given three different statements to the police where he lies. So as of April 4th he gives a new statement to the police, he’s not released from custody. But that changes though, however, when he has – his lawyer has a discussion with the Crown Attorney, Mr. Rafferty, from my friend’s office here.

Mr. Rafferty had a discussion with Mr. Kissoon and a discussion about what could happen if Mr. Mazur testifies at the preliminary enquiry of Mr. Lewis. Mr. Rafferty would communicate with the officer in charge of the case and see what could be possibly, no guarantees, about bail for Mr. Mazur if he testified.

The bail hearing of Mr. Mazur is adjourned until after the preliminary enquiry of Mr. Lewis. Mr. Mazur comes to court and testifies against Mr. Lewis. Subsequent to him testifying he goes back to court and low and behold, he’s granted bail. More than just a coincidence. So what is it that was so significant with the testimony of Mr. Mazur at the preliminary enquiry of Imo Lewis that awards him being released from custody? What testimony that was given on April 4th or statement that was given on April 4th that’s so different?

Well, according to Mr. Mazur, who is now freeing his conscience, he now knew who that person was that did the shooting at D’Martini’s on April (sic) 30th that night. He indicates that the person that did the shooting was Mr. Lewis. He indicates that he lied beforehand, didn’t want to get involved, and then he goes further and says, yes, I, he did the shooting and I met him the night before, August 29th. The shooting takes place on the 30th. I met this guy the night before. I’ve only met him once, never met him before. How convenient.

Nikita Mazur throughout the whole process lies, lies, lies. In fact, he states he is lying so much he couldn’t tell the difference between lying and telling the truth. That’s Nikita Mazur.

[83] For these reasons, I reject the appellant’s argument that the trial judge should have exercised her residual discretion under s. 715 and refused to admit Mazur’s testimony on grounds of trial fairness. Indeed, I do not see this case as a close call, and certainly not one in which the Crown’s failure to disclose should tip the scales in favour of exclusion. The admission of Mazur’s evidence did not, in my view, render the appellant’s trial unfair. Accordingly, I would reject this ground of appeal.

Alternative Basis for Admitting Mazur’s Testimony

The principled approach to the admission of hearsay evidence

[84] Had I given effect to the appellant’s argument that Mazur’s evidence was not admissible under s. 715 of the Criminal Code, I would nonetheless have found it admissible under the principled approach to the admission of hearsay evidence.

[85] Although hearsay evidence is presumptively inadmissible for the truth of its contents, under the principled approach, an exception exists where the proposed evidence is both necessary and reliable.

[86] No issue arises here about the necessity component. Mazur returned to the Ukraine after the preliminary inquiry and he was unavailable to testify at trial. The admission of his evidence therefore turns on the reliability component, which in this case, depends on whether there was a sufficient basis for the jury to assess the truth and accuracy of Mazur’s preliminary inquiry testimony in his absence. In my view, there was.

[87] As indicated, Mazur was extensively cross-examined at the preliminary inquiry. His testimony was given under oath and audio-recorded. Hence, although the jurors could not see him testifying, they had the advantage of hearing him.

[88] In R. v. Hawkins, [1996] 3 S.C.R. 104, at para. 76, the Supreme Court held that, generally, a witness’s testimony before a preliminary inquiry will satisfy the test for threshold reliability. At para. 79, the court observed that “the surrounding circumstances of such testimony, particularly the presence of an oath or affirmation and the opportunity for contemporaneous cross-examination, more than adequately compensate for the trier of facts’ inability to observe the demeanor of the witness in court. The absence of the witness at trial goes to the weight of such testimony, not its admissibility.”

[89] At para. 77 of Hawkins, the court mentioned two other factors that influenced its assessment, one being the unquestioned accuracy of the declarant’s statement; the other being the ability of “the party against whom the hearsay evidence is tendered … to call [at trial] the witness whose out-of-court statement is being offered.”

[90] The appellant focuses on the second of these factors and submits that his inability to call Mazur at trial distinguishes this case from Hawkins. I acknowledge that the distinction exists and I accept that where the witness whose evidence is in issue is available to the accused, that is certainly a factor that favours admission. However, in my view, its significance will vary depending upon the particular circumstances of each case.

[91] Hawkins, it must be remembered, was a somewhat unusual case in the sense that G., the witness whose testimony the Crown wished to tender, was Hawkins’ girlfriend at the time of the preliminary inquiry and his wife at the time of trial. Hence, given the nature of the charges against Hawkins (police corruption), G. could not be called by the Crown as a witness at trial.

[92] At the preliminary inquiry, G. initially testified against Hawkins, but later changed her evidence and testified in his favour. It was in that context that the Supreme Court, in holding that her evidence from the preliminary inquiry was properly admissible, under the principled approach, considered it significant that Hawkins could call G. as his witness at trial, presumably in the expectation that she would testify in his favour.

[93] That is a far cry from the case at hand. To my mind, it is fanciful to think that the appellant would have called Mazur as his witness had Mazur been available to him but not the Crown. There was little prospect that Mazur would have recanted or given evidence helpful to the appellant and if the purpose of calling him was to explore the alleged “bail for testimony” inducement, that would have been a risky business indeed. Mazur’s testimony, it will be recalled, tracked the substance of his April 4 statement – a statement that he had given to the police voluntarily, without counsel’s knowledge, and more importantly, without there being a hint of bail in return. Cross-examination designed to show that to secure his release, Mazur had come to court and falsely implicated the appellant as the shooter would have proved difficult, given that Mazur’s testimony mirrored what he had said in his April 4 statement when the matter of bail was not even on the horizon.

[94] Be that as it may, the jury had all the tools it needed to assess the truth and accuracy of Mazur’s preliminary inquiry testimony. The circumstances surrounding the “bail for testimony” inducement were fully explored before the jury and as I have already pointed out, defence counsel made much of the matter in his closing address.

[95] In the circumstances of this case, the appellant lost nothing by not having the opportunity to call Mazur as his witness. If anything, I believe Mazur’s absence inured to his benefit.

[96] It follows, in my view, that Mazur’s evidence was properly received, if not under s. 715, then under the principled approach to the admission of hearsay evidence.

[97] For these reasons, I would not give effect to the appellant’s first ground of appeal.

ISSUE TWO: WAS A VETROVEC WARNING ESSENTIAL IN RELATION TO MAZUR’S EVIDENCE?

[98] The appellant submits that a Vetrovec warning was essential in Mazur’s case and that the trial judge’s failure to give it constituted reversible error.

[99] I disagree. Mazur was an important Crown witness, but his evidence was not critical to the Crown’s case. Sotomayor’s evidence bore that burden and the trial judge quite properly gave the jury a Vetrovec warning in relation to it, as requested by defence counsel. Mazur’s evidence played a supportive role. Defence counsel, after considering the matter, did not ask the trial judge to give a Vetrovec warning in relation to Mazur. In this regard, while the trial judge may have expressed her personal view against such an instruction, she left the matter entirely in defence counsel’s hands. Given the fair and balanced manner in which the trial judge conducted the trial as a whole, I strongly expect that she would have acceded to defence counsel’s request had he made it clear that he wanted a Vetrovec warning in relation to Mazur.

[100] But defence counsel made no such request. Presumably, he did not see a need for a Vetrovec instruction. He was obviously content with the cautionary instructions the trial judge was prepared to give in relation to Mazur, short of a full blown Vetrovec warning. The trial judge did not second guess defence counsel’s decision; nor would I.

[101] The trial judge carefully reviewed the various frailties associated with Mazur’s evidence, including his prior convictions, his involvement with drugs, and his prior inconsistent statements. She made special note of the fact that the jury had not seen him testify and she devoted a full page and a half to his outstanding charges of robbery and breach of bail, as well as the incentive he may have had, because of those charges, to testify “favourably” for the Crown. In that regard, she specifically warned the jury of the need to approach his evidence “with care and caution.”

[102] In the circumstances, it is apparent that defence counsel made a conscious, and in my view, reasonable decision not to ask for a Vetrovec instruction. He effectively got the best of both worlds. The jury was alerted to the pitfalls in Mazur’s evidence and warned of the need to proceed with care and caution. They were not alerted to the many items of evidence that were capable of confirming Mazur’s evidence, which would have been the case had a Vetrovec warning been given.

[103] In sum, defence counsel was in the best position to gage the need for a Vetrovec warning and he chose not to ask for one. The trial judge gave effect to his decision and made no error in doing so. Her charge was a model of fairness and it provided the jury with the tools it needed to properly assess the worth of Mazur’s evidence.

[104] I would accordingly reject this ground of appeal.

ISSUE THREE: DID THE TRIAL JUDGE IMPROPERLY LEAVE A PORTION OF MAZUR’S EVIDENCE AS POTENTIALLY CONFIRMATORY OF SOTOMAYOR’S TESTIMONY?

[105] The appellant submits the trial judge erroneously instructed the jury that Mazur’s evidence about a number of phone calls between Sotomayor and Downer, in which the two men were trying to arrange for Calvo to deliver money to Sotomayor, was evidence capable of confirming Sotomayor’s testimony.

[106] To the extent that Mazur was not privy to these calls and was only reporting what Sotomayor told him, the appellant’s point is valid. That said, the error in my view was harmless and could not possibly have altered the verdict.

[107] Apart from this one item of evidence, the trial judge properly instructed the jury on the wide body of evidence that was capable of confirming Sotomayor’s testimony. There was a wealth of such evidence in this case, including the evidence linking the appellant to the white Land Rover that was seen fleeing from the scene. The trial judge did not mention that evidence to the jury. She could have, and it would have been a powerful substitute for the evidence about which the appellant complains.

[108] In the end, the impugned instruction resulted in no significant prejudice to the appellant, especially here, where the evidence implicating him as the shooter was very powerful.

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

CONCLUSION

[110] The appellant had a fair trial. The trial judge correctly received Mazur’s testimony from the preliminary inquiry and she was not required to give a Vetrovec warning in relation to it. The one error relating to confirmatory evidence was harmless and could not possibly have affected the result. I would accordingly dismiss the appellant’s appeal from conviction.

Signed: “M. J. Moldaver J.A.”

“I agree Robert P. Armstrong J.A.”

“I agree Paul Rouleau J.A.”

RELEASED: “MJM” December 9, 2009