Court File and Parties

CITATION: R. v. Hall, 2010 ONCA 421

DATE: 20100608

DOCKET: C44241

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Laskin and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sean Hall

Appellant

Michael Dineen, for the appellant

Jamie Klukach and Brad Greenshields, for the respondent

Heard: June 1, 2010

On appeal from the conviction entered on November 14, 2004, and the sentence imposed on December 3, 2004, by Justice Donald S. Ferguson of the Superior Court of Justice, sitting with a jury.

By the Court:

OVERVIEW

[1] The appellant, Sean Hall, and Cosmo Jacobson were jointly charged with the first degree murder of a security guard, Roy Jones. They were also charged with various offences relating to a home invasion.

[2] The home invasion occurred in 2000. Jones identified Jacobson when he used a bank card stolen during the home invasion to withdraw money from an ATM. In February 2001, just before the start of Jacobson’s preliminary inquiry, Jones was fatally shot as he returned from work. The motive for the murder was to prevent Jones from testifying against Jacobson. The Crown alleged that Jacobson shot Jones, and that the appellant, who was Jacobson’s close friend, helped plan the murder and drive the get-away car.

[3] The Crown’s case against the appellant rested mainly on three planks: (i) the appellant made statements amounting to an admission of guilt to undercover officers posing as members and associates of the Hell’s Angels in the course of an elaborate “Mr. Big” operation; (ii) cell phone records placed the appellant at the scene of the murder minutes before it occurred; and, (iii) the appellant tacitly admitted his guilt in a telephone conversation with his friend, Nigel Browne.

[4] The appellant testified in his own defence. He maintained that he lied to the undercover officers about participating in the murder of Jones to impress them and gain their trust so they would give him work. He also claimed that Jacobson borrowed his cell phone the night of the murder. And, he denied admitting his guilt to his friend, Browne.

[5] The trial before Ferguson J. and a jury took ten months. Near the end of the trial, the trial judge granted an application for severance because Jacobson sought to use recently disclosed evidence that would have prejudiced the appellant. The trial then continued against the appellant alone. The jury convicted him of first degree murder and the home invasion charges.

[6] On his conviction appeal, the appellant makes three submissions:

(1) the trial judge erred by permitting the Crown to invite the jury to engage in prohibited “propensity” reasoning;

(2) the trial judge erred in ruling that the appellant had violated the rule in Browne v. Dunn, and in his remedy for the violation; and

(3) the trial judge erred in instructing the jury on the co-conspirator’s exception to the hearsay rule.

[7] We called on the Crown to respond only to the appellant’s first submission.

1. Prohibited propensity reasoning

[8] This ground of appeal arises out of the appellant’s conversations with the undercover officers during the “Mr. Big” operation. The appellant submits that, both in his examination of the appellant and in his closing address, the Crown invited the jury to use the appellant’s statements to the officers to engage in impermissible propensity reasoning.

[9] During his discussion with the undercover officers, the appellant said that he would be willing to carry out crimes with murderers, including driving a get-away car, as long as he did not have to wield a gun. The appellant contends that the Crown used this evidence improperly – by inviting the jury to conclude that as the appellant had acknowledged a propensity to participate in murders, it was therefore more likely that he had been willing to assist Jacobson with the murder of Jones. The appellant argues that the Crown’s position rendered the trial unfair.

[10] We do not agree with the appellant’s submission. As we have said, the appellant testified that he lied to the undercover officers about his role in the murder of Jones because he hoped to work for them. During cross-examination and closing argument, the Crown asked the jury to conclude that the appellant’s trial testimony was implausible and not credible. The Crown argued the jury should instead conclude that the appellant was telling the truth when he told the officers he drove the get-away car for Jacobson, and that was why he was prepared to do the same thing for persons he believed to be involved in violent crimes. This was not an invitation to engage in impermissible propensity reasoning.

[11] We agree with the distinction Ms. Klukach drew during the course of her submissions on behalf of the Crown. She distinguished two lines of argument. The first posits that because the appellant was willing to drive for persons he believed to be violent criminals, he was, therefore, more likely to have been willing to drive for Jacobson. The second posits that, as the appellant was willing to drive for Jacobson, he was also willing to drive for violent criminals. The first line of argument invites the jury to engage in propensity reasoning; the second invites the jury to conclude that the appellant was truthful when he told the undercover officers he had driven the get-away car for Jacobson.

[12] The trial Crown focused almost entirely on the second line of argument. On a few occasions, however, the trial Crown put the first line of argument – the propensity argument – to the jury. An example is at p. 12769 of the transcript, where he said to the jury:

…as he said in his examination in-chief, he was prepared to do that. And in my respectful submission to you, if he was prepared to do that for the bikers, he was prepared to do that for Cosmo Jacobson.

[13] These examples were isolated, and very likely would have had no effect on the jury. Indeed, the trial judge’s repeated instructions on bad character evidence alleviated any concern that the jury would have used this evidence improperly. Both during the trial and in his charge, the trial judge told the jury that it was not to use bad character evidence for the purpose of engaging in propensity reasoning.

[14] That no unfairness was occasioned by this evidence or the Crown’s use of it is reinforced by the absence of any objection from defence counsel. From the record it is apparent that defence counsel was very concerned about the jury’s possible misuse of bad character evidence. During his closing argument, defence counsel cautioned the jury not to use this evidence to engage in propensity reasoning. Yet, although defence counsel went on to criticize several aspects of the Crown’s closing address, he did not criticize the aspect the appellant now seeks to challenge on appeal. Moreover, after having been given an extensive opportunity to review the trial judge’s charge before it was given, defence counsel did not object to the trial judge’s instructions on bad character evidence.

[15] For these reasons, the appellant’s main ground of appeal must fail. It is therefore unnecessary to address the Crown’s alternative argument that this evidence was admissible as situation-specific propensity evidence.

2. The Browne v. Dunn ruling

[16] Defence counsel cross-examined Jacobson at length. He did not, however, cross-examine him on two key components of the appellant’s defence: (i) unbeknown to the appellant, Jacobson had borrowed his cell phone the day of the murder; and (ii) Jacobson told the appellant that he had killed Jones with the assistance of the “Rampage Crew”. After the appellant testified on these two matters, the Crown asked for a ruling that the appellant had violated the rule in Browne v. Dunn. The trial judge so ruled. Then, in his closing address, Crown counsel relied on defence counsel’s failure to cross-examine on these two matters.

[17] The appellant submits that the trial judge erred in ruling that Browne v. Dunn had been violated, and that he compounded his error by prohibiting defence counsel from telling the jury that the Crown could have recalled Jacobson. We do not accept this argument for three reasons.

[18] First, the trial judge was correct in ruling that Browne v. Dunn had been violated. The rule in Browne v. Dunn is a rule of fairness: if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given an opportunity to address the contradictory evidence. It may be that counsel is not required to put every contradictory detail to a witness. However, the two matters in issue were hardly mere details. They lay at the heart of the appellant’s defence. The cell phone evidence was particularly damaging, unless the appellant could show that someone else was using his phone the night of the murder. We can only conclude that defence counsel, who is both an able and experienced criminal defence lawyer, made a tactical decision not to cross-examine on these two matters. His failure to do so amounted to a breach to of the rule in Browne v. Dunn.

[19] Second, the trial judge did not give a general Browne v. Dunn instruction to the jury. Instead, he let counsel deal with the issue in their jury addresses. The lack of a Browne v. Dunn instruction favoured the defence.

[20] Third, the trial judge left open the possibility that defence counsel could tell the jury the Crown had a right to call reply evidence – a possibility the defence did not pursue. This was a fair balancing of the respective interests of both sides. On the one hand, the trial judge recognized the obvious reluctance of the Crown to recall Jacobson: he was not the Crown’s witness; the severance order had been made by the time this issue arose; and Jacobson’s propensity for falsehoods on the witness stand left the Crown with no idea what he might say about the two matters in question. On the other hand, defence counsel had the opportunity to even the balance by telling the jury about the Crown’s right to call reply evidence. As defence counsel precipitated the problem by deciding not to cross-examine on the cell phone or the “Rampage Crew” evidence, the trial judge’s handling of this issue was fair to the appellant.

3. The co-conspirator’s exception of the hearsay rule

[21] The so-called Carter instruction on the co-conspirator’s exception of the hearsay rule is universally acknowledged to be a complicated instruction and a difficult instruction to absorb and apply. Wherever possible, it is best avoided.

[22] Nonetheless, the trial judge twice gave a Carter instruction to the jury. The appellant argues that he erred in doing so, that it should not have been given, and that it had the potential to confuse the jury. We do not agree with the appellant’s argument. Even assuming the Carter instruction should not have been given, it caused no prejudice to the appellant. On the matters covered by the hearsay instruction, the Crown led direct evidence implicating the appellant. Moreover, defence counsel did not object to the Carter instruction and the jury asked no questions about it. The lack of objection from counsel or of questions from the jury suggests that the instruction was of no consequence during the trial.

CONCLUSION

[23] The conviction appeal is dismissed

RELEASED: June 8, 2010

“DOC” “Dennis O’Connor A.C.J.O.”

“John Laskin J.A.”

“E.E. Gillese J.A.”