R. v. Singh, 2010 ONCA 808
CITATION: R. v. Singh, 2010 ONCA 808
DATE: 20101130
DOCKET: C45215
COURT OF APPEAL FOR ONTARIO
Doherty, Feldman and Gillese JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Prabhjot Singh
Appellant
Joseph S. Wilkinson, for the appellant
Brian McNeely, for the respondent
Heard: November 1, 2010
On appeal from the conviction entered by Justice Joseph M. Fragomeni of the Superior Court of Justice, sitting with a jury, on November 25, 2004.
Doherty J.A.:
[1] The appellant was charged with first degree murder. He was convicted of second degree murder and sentenced to life imprisonment without eligibility for parole for 13 years. He appeals his conviction.
[2] The appellant and the deceased, Patrycja Skibinska (“Trish”), had been involved in a relationship for about three years before the homicide. On the Crown’s theory, Trish decided to end that relationship and told the appellant so. The Crown contended that the appellant, an obsessively jealous person who had threatened the deceased and had been physically violent towards her in the past, would not accept that the relationship was over. On the Crown’s theory, anger and jealousy led the appellant to murder the deceased. There was evidence to support the Crown’s contention that the relationship between Trish and the appellant was volatile and that the appellant was very jealous and did not want the relationship to end.
[3] Trish and the appellant were together very shortly after 2:00 p.m. on July 7, 2001. There was evidence in the form of a statement made by Trish to a friend during a telephone call that she was still with the appellant about a half an hour later at 2:34 p.m. The admissibility of the statement is a ground of appeal. Trish’s body was found in the Little Etobicoke Creek at about 7:05 p.m. the next day (July 8). She had been manually strangled and forcibly drowned. Trish had not been seen since the previous day and had missed a scheduled hair appointment at 6:00 p.m. on July 7. Her cell phone had become inoperative at 3:41 p.m. on July 7. On the Crown’s theory, she was murdered at about that time.
[4] The appellant was in his apartment with his younger brother shortly after 4:00 p.m. on July 7. According to the brother’s preliminary inquiry evidence, which was admitted for its truth at trial, the appellant had Trish’s cell phone. He destroyed the phone.
[5] The appellant, knowing he was under investigation for the homicide, fled to India about 10 days after the homicide occurred. He voluntarily returned to Canada, some seven months later, in February 2002.
[6] The Crown alleged that the appellant had confessed to his father and his two brothers. All three testified at trial and gave varying versions of the relevant events. There was considerable evidence as to the circumstances surrounding both the alleged statements by the appellant and the police interviews of his father and brothers. The defence contended that the family members had been coerced and threatened by the authorities into giving statements that inculpated the appellant.
[7] Gurvinder Singh, the appellant’s older brother, testified that the appellant had initially denied any involvement in the murder, but had confessed when Gurvinder went to India to meet with the appellant. Gurvinder had given three statements to the police. In the first two, he indicated that his brother had told him that he did not know anything about the homicide. Gurvinder’s third statement, given under oath and videotaped and made after Gurvinder had been told that charges against him would be dropped if he told the truth, was consistent with his trial testimony.
[8] Hardeep Singh (“Hardeep”), the appellant’s father, testified in his examination-in-chief that the appellant had admitted killing Trish and had said that it was a mistake made in anger. Hardeep had given a similar statement to the police.
[9] In cross-examination, Hardeep testified that the statement had been given after he was coerced and threatened by the police. He testified in cross-examination that his son had, in fact, denied any involvement in the murder.
[10] In re-examination, Hardeep returned to the version of events he had given during his examination-in-chief and once again said that the appellant had confessed to him.
[11] Ranjit Singh (“Ranjit”), the appellant’s younger brother, had initially given a statement to the police on July 11, 2001, about four days after the murder. He told the police that his brother had been with him all afternoon. Ranjit gave a second statement in August 2002 indicating that his brother had confessed that he murdered Trish. Ranjit testified at the preliminary inquiry eight months later. In his testimony, he described how the appellant had returned to the apartment with wet pants and shoes and had proceeded to destroy the deceased’s cell phone. Ranjit testified that his brother confessed to having drowned the deceased albeit “by mistake”.
[12] At trial, Ranjit recanted his preliminary inquiry testimony and reverted to his initial statement testifying that he and the appellant were together all afternoon on July 7, 2001 at the apartment. He explained that he had told the police that his brother confessed and testified to that effect at the preliminary inquiry because he had been threatened and assaulted by the police and the Crown. The police had threatened him before he gave his August 2002 statement, and both the police and the Crown had threatened and assaulted him immediately before he testified at the preliminary inquiry indicating that he would go to jail if his testimony differed from his August 2002 statement.
[13] On a voir dire to determine the admissibility of Ranjit’s preliminary inquiry testimony, the trial judge rejected Ranjit’s evidence that he had been threatened and assaulted by the police and the Crown. He admitted Ranjit’s preliminary inquiry testimony for the truth of its contents. The appellant initially took issue with that ruling, but abandoned that ground of appeal at the outset of oral argument.
[14] The appellant did not testify.
[15] The defence called Renu Sanghera. She testified, for the first time in cross-examination, that one Darius Tarko (“Tarko”), had told her that he killed Trish. Trish had worked in the massage parlour owned by Tarko.
[16] Tarko had testified for the Crown and denied any knowledge of or involvement in the homicide. He had not been confronted by the defence with his alleged admission to Ms. Sanghera as apparently no one had any knowledge of that alleged confession until Ms. Sanghera disclosed it during her cross-examination. She had previously testified on a voir dire during the trial and had made no reference to the alleged confession.
[17] The Crown made a powerful attack on Ms. Sanghera’s credibility. She had a lengthy criminal record, including many convictions for crimes of dishonesty. The Crown, with good cause, depicted her as a “professional fraudster”.
[18] Identity was the central issue at trial. The defence made four arguments in support of the contention that the Crown had failed to prove that the appellant was the killer:
- The Crown’s case at its highest was not sufficiently strong to bear the burden of proof beyond a reasonable doubt on the issue of identity;
- Ms. Sanghera’s evidence was sufficiently credible to leave a reasonable doubt as to the identity of the killer and, in particular, whether Mr. Tarko was the killer;
- Ranjit’s evidence at trial was sufficiently credible to give the appellant an alibi for the time of the homicide;* and
- The police investigation was tainted from the outset by “tunnel vision” that fixated on the appellant and by general incompetence.
Grounds of Appeal
[19] There are three grounds of appeal:
- Did the trial judge err in admitting for its truth evidence of a telephone conversation at 2:34 p.m. on July 7, 2001 in which the deceased said she was with the appellant?
- Was the Crown’s cross-examination of Ranjit and Ms. Sanghera so improper as to result in a miscarriage of justice?
- Did the trial judge err in failing to give a limiting instruction to the jury in respect of the lead investigator’s testimony concerning the nature, extent and ambit of the investigation and his testimony expressing his personal opinions with respect to the conclusions to be drawn during that investigation?
Issue 1: The Admissibility of the Telephone Conversation
[20] The Crown sought to lead evidence from Dorota Bielawski that she spoke to her friend Trish at 2:34 p.m. on July 7, 2001. According to Ms. Bielawski, she and Trish were very good friends and spoke on the telephone quite often. She called Trish to see if she wanted to go to the mall that afternoon. Trish told her that she could not go to the mall as she was with the appellant. Trish also mentioned that she had a hair appointment later that afternoon. The conversation lasted about five minutes.
[21] The Crown tendered this evidence not only to show that Ms. Bielawski spoke to Trish at 2:34 p.m. on July 7, meaning Trish was still alive at that time, but also as evidence that the appellant was with Trish at that time. This latter use was clearly a hearsay use of the evidence.
[22] The admissibility of Trish’s statement that she was with the appellant was considered in a pre-trial voir dire during which the admissibility of a number of pieces of evidence was considered by the trial judge. The trial judge, applying the principled approach to the admission of hearsay evidence as described in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, held that the evidence was admissible as evidence that the appellant was with Trish when she spoke to her friend at 2:34 p.m.
[23] Counsel for the appellant makes two submissions in support of the contention that the trial judge erred in admitting the evidence as evidence that the appellant was with Trish at 2:34 p.m. First, he argues that the hearsay statement should have been excluded because on the entirety of the voir dire record there was “a possibility that the deceased had reason to fabricate the statement or was at least capable of deceiving Bielawski”.
[24] Counsel also submits that even if the trial judge’s ruling was correct on the law as it stood at the time of the ruling, the decision in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, decided after the trial, has changed the law and compels a different result. Counsel submits that in light of Khelawon, the evidentiary inquiry into the reliability of Trish’s statement that the appellant was with her is expanded to include evidence other than evidence relating to the circumstances in which the statement was made. Counsel submits that on this expanded review of reliability, the evidence of a telephone conversation between Trish and a man named Jeffrey Clarke a few minutes before the conversation with Ms. Bielawski casts doubt on the reliability of Trish’s statement that she was with the appellant when speaking to Ms. Bielawski. The admissibility of the conversation between Mr. Clarke and Trish was contested at trial as part of the same omnibus pre-trial voir dire during which the admissibility of the conversation with Ms. Bielawski was argued. The defence unsuccessfully resisted the admissibility of the Clarke conversation arguing that the evidence of the contents of the conversation was unreliable.
[25] It is unclear from the trial record whether the evidence relating to the Clarke conversation is properly considered in deciding whether the trial judge erred in admitting the evidence of the conversation with Ms. Bielawski. Understandably, given the state of the law, no connection was made at trial between the Clarke conversation and the admissibility of the conversation with Ms. Bielawski. Attempts to reshape the record upon which admissibility was determined at trial to accommodate legal arguments based on changes in the law of evidence subsequent to the trial must adversely affect the integrity of the trial process: R. v. Polimac (2010), 2010 ONCA 346, 254 C.C.C. (3d) 359 (Ont. C.A.), leave to appeal to the S.C.C. requested, at paras. 59-60. However, as the record is not entirely clear, and in fairness to the appellant, I will assume that the Clarke conversation is properly considered in determining whether the trial judge erred in admitting the evidence of Trish’s statement to Ms. Bielawski.
[26] In holding that the evidence of Trish’s statement that she was with the appellant was admissible hearsay, the trial judge emphasized that “the subject matter of the call was mundane and routine between two close friends.” He further noted that the “conversation was spontaneous and the declarant [Trish] was speaking about contemporaneous events.” The trial judge also held, after a careful analysis of this court’s decision in R. v. Czibulka (2004), 189 C.C.C. (3d) 199 (Ont. C.A.), that he was satisfied that he could infer that Trish had no motive to lie to her friend about whom Trish was with at the time of the telephone call.
[27] The trial judge’s factual findings, including the inferences drawn from primary facts, and his reliability assessment are entitled to deference absent any material misapprehension of the evidence or error in principle: see R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 36; R. v. Moo (2009), 2009 ONCA 645, 247 C.C.C. (3d) 34 (Ont. C.A.); and Polimac at para. 61.
[28] Trish was, of course, unavailable for cross-examination at trial. There were no substitutes for cross-examination, such as cross-examination of Trish on the statement at some earlier proceeding, which could mitigate the inability to cross-examine Trish at trial. The trial judge correctly recognized that the admissibility of the statement turned entirely on whether the circumstances in which the statement was made provided sufficient indicators of the inherent trustworthiness of the statement to render cross-examination of the declarant at trial an unnecessary prerequisite to admissibility. As Charron J. put it in Khelawon, at para. 62, when discussing reliability in the context of the admissibility of hearsay evidence:
One way [to demonstrate reliability] is to show that there is no real concern about whether the statement is true or not because of the circumstances in which it came about. Common sense dictates that if we can put sufficient trust in the truth and accuracy of the statement, it should be considered by the fact finder regardless of its hearsay form.
[29] As identified in R. v. Smith, [1992] 2 S.C.R. 915, at pp. 935-36, cross-examination of a declarant may target the accuracy of a statement or the honesty of the witness who made the statement or both. Insofar as Trish’s statement that she was with the appellant is concerned, there could be no possible advantage in cross-examining her about the accuracy of that statement. The appellant’s presence with Trish when she spoke to her friend was not something that Trish could possibly have been mistaken about. If the statement was unreliable, it was because Trish may have been lying about the appellant’s presence.
[30] In determining the admissibility of hearsay statements, a trial judge begins with the presumption that the evidence is inadmissible: Blackman at para. 37. Where, as in a case like this, reliability turns on the circumstances in which the statement was made, and the challenge to the reliability is based on the possibility that Trish was lying and that cross-examination could disclose that possibility, I think the evidence can be admitted only if the trial judge is satisfied that there is no realistic possibility that Trish was lying when she told her friend that she was with the appellant. I see this approach as reflecting the analysis in Khelawon. Charron J., in the course of applying the general principles to the statements made in that case and holding the statements to be inadmissible hearsay, said at para. 107: “[T]he circumstances raised a number of serious issues such that it would be impossible to say that the evidence was unlikely to change under cross-examination” (emphasis added).
[31] The trial judge identified circumstances that made out a cogent case for the reliability of Trish’s statement. She and her friend were engaged in a routine social conversation about mundane matters. The reference to the appellant’s presence came up as an aside in the course of that conversation. The conversation was not an inquiry into whom Trish was with at that time, but was rather a discussion between friends about a possible meeting later that day. I also accept the trial judge’s finding that on the evidence there was no plausible motive for Trish to lie to her friend about being with the appellant. This finding can be contrasted with the comments in Smith, a case heavily relied on by the appellant, where Lamer C.J.C. notes, at p. 936, that there was evidence from which it could be inferred that the declarant had a reason to lie to her mother in the relevant telephone call.
[32] Counsel for the appellant attempts to undermine the credibility of Trish’s statement that she was with the appellant by referring to evidence that could potentially impugn Trish’s credibility on other matters. For example, there was evidence that Trish had lied to Ms. Bielawski about working at the massage parlour. In my view, that evidence is irrelevant to the inherent trustworthiness of Trish’s statement to Ms. Bielawski that she was with the appellant. Given the nature of the employment and Trish’s youth, there were obvious reasons for her to mislead people, including Ms. Bielawski, about where she worked. I see no connection between the potential to mislead her friend on her place of employment and Trish’s potential to mislead her friend about the appellant’s presence during a casual telephone conversation.
[33] Counsel for the appellant also referred to evidence of other things that Trish had done, of which Ms. Bielawski was unaware, in support of his argument that the statement to Ms. Bielawski was unreliable. Evidence that Trish did not tell Ms. Bielawski about certain things that were going on is irrelevant to Trish’s credibility on a general level, much less to the reliability of her statement that she was with the appellant when Ms. Bielawski spoke to her on the telephone.
[34] On the law as it stood when the ruling was made, there are no grounds to successfully challenge the trial judge’s ruling. After Khelawon, the reliability inquiry can extend beyond the circumstances of the making of the statement. Counsel submits that this court must reassess the admissibility of Trish’s statement to Ms. Bielawski using the wider reliability lens described in Khelawon.
[35] Counsel submits that the wider lens crafted in Khelawon captures the evidence of a conversation between Jeffrey Clarke and Trish. Trish had met Clarke about five days before her death. They had one five minute conversation and exchanged phone numbers. Mr. Clarke telephoned Trish at 2:30 p.m. on July 7, 2001, a few moments before Trish spoke to Ms. Bielawski. According to Mr. Clarke, Trish was in a rush. She told Mr. Clarke that she was with “another guy”. Mr. Clarke thought that she said she was with “Matt” or “Mike”, but agreed that she may have said she was with “Monte”. The appellant’s nickname is “Monte”.
[36] It is somewhat speculative to attempt on appeal to assess the impact of Clarke’s evidence on the reliability of Trish’s statement to Ms. Bielawski when the two were not connected during the trial. It is, however, necessary to make that assessment given the approach to hearsay pronounced in Khelawon.
[37] I do not think that Mr. Clarke’s evidence undermines the reliability of the statement Trish made to Ms. Bielawski. Trish barely knew Mr. Clarke and by his admission seemed anxious to end the telephone conversation quickly. Trish certainly did not have a relationship with Mr. Clarke that would suggest any trust or friendship between the two of them.
[38] Most importantly, however, Mr. Clarke was uncertain of the name used by the appellant. Mr. Clarke, who had only spoken to Trish once, acknowledged that he found her difficult to understand because of her accent. On balance, I do not think that Mr. Clarke’s evidence as to what Trish said to him is necessarily inconsistent with her statement to her friend Ms. Bielawski, a few minutes later, that she was with the appellant. The evidence of the Clarke conversation does not give cause to question the correctness of the trial judge’s ruling on the admissibility of Trish’s statement to Ms. Bielawski.
Issue 2: The Crown’s Cross-Examination of Ranjit and Ms. Sanghera
[39] Counsel for the appellant submits that the Crown’s cross-examination of Ranjit and Ms. Sanghera was so improper as to result in a miscarriage of justice. Counsel contends that the Crown’s conduct towards those witnesses would inevitably have had a negative impact on the jury’s assessment of their credibility. Both witnesses offered evidence that, if not totally rejected, would have resulted in an acquittal. Counsel further submits that apart from any effect the improper cross-examination had on the witness’s credibility, that cross-examination so departed from the standards demanded of Crown counsel that it destroyed the appearance of the fairness of the trial and resulted in a miscarriage of justice.
[40] I do not propose to examine each of the many specific extracts from the cross-examinations relied on by the appellant in support of this ground of appeal. Many of those extracts placed in their proper context do not reveal anything improper in Crown counsel’s cross-examination. In any event, counsel agree that the merit of this ground of appeal must be determined by reference to the cumulative effect of the improprieties during the cross-examinations considered in the context of the entirety of the trial. Reference to isolated passages can be misleading both by overstating and understating the effect of improprieties.
[41] I also see no need to listen to the audiotapes of the cross-examination to resolve this ground of appeal. Counsel for the appellant did not refer to anything specific that, in his submission, would be assisted by listening to the audiotapes.
[42] There were instances, and more than a few, where Crown counsel’s cross-examination went beyond the appropriately vigorous to the improperly aggressive and demeaning. Crown counsel on appeal properly concedes that the Crown at trial, an experienced and able counsel, engaged in sarcasm and editorializing during the cross-examination of these two witnesses. Both tactics are inappropriate, especially for Crown counsel.
[43] I also agree with counsel for the appellant that Crown counsel on more than one occasion presented himself in the cross-examination of these witnesses as the spokesperson for the jury. This tactic unfairly implies that the Crown and its interests are aligned with the jury against the accused and his interest. Whatever may be said about the effectiveness of this technique as an advocacy tool, it is unavailable to the Crown who must maintain an objectivity and impartiality consistent with his or her obligations to the administration of justice: see R. v. F.S. (2000), 144 C.C.C. (3d) 466 (Ont. C.A.), at pp. 473-74.
[44] Accepting that the Crown did engage in some improper cross-examination of both witnesses, the effect of those improprieties must be placed in the context of the entire trial. This was a difficult, hard fought and, in many ways, nasty trial. The Crown was faced with witnesses who were changing their stories and, by their own admission, had lied under oath. The defence had advanced an attack not only on the competence and integrity of the police investigation but on the integrity of the Crown prosecutor.
[45] Ranjit and Ms. Sanghera, the two witnesses whose evidence is in issue on this ground of appeal, were difficult witnesses to cross-examine. They were far from shrinking violets and were not in any way intimidated by the Crown’s aggressive and, at times, improper cross-examination. Some of the Crown’s editorializing was a direct product of the manner in which the witnesses conducted themselves on the witness stand. The Crown was obligated to forcefully probe and challenge the evidence of both Ranjit and Ms. Sanghera. He did so, and in most respects, he did so in a proper and effective manner.
[46] It must also be remembered that the impugned parts of the cross-examinations occurred during lengthy cross-examinations which took place in the course of a lengthy trial. There is no complaint about Crown counsel’s conduct in the rest of the trial. Nor are there any complaints about the manner in which the trial judge conducted the proceedings. He gave the jury a fair, careful and effective jury instruction. That instruction included a description of the jury’s role and an admonition that statements made by counsel in the course of the trial were irrelevant to the jury’s role.
[47] I am satisfied that the improper parts of Crown counsel’s cross-examinations of these two witnesses could not have had any effect on the jury’s assessment of their credibility. Nothing done by the Crown prevented the witnesses from fully telling their story. The exculpatory portions of their evidence were far from credible. I think the jury would inevitably have made much more of the inherent and obvious frailties in the witnesses’ evidence than it would have made of the Crown’s unfortunate use of sarcasm and editorial comment from time to time during the cross-examinations.
[48] In considering the improper actions of the Crown during cross-examination to undermine the overall appearance of the fairness of the trial, weight must be given to the position taken by the participants in the trial. There was no request for a mistrial. Defence counsel did not ask the court to address any of the alleged improprieties in any way with the jury. In my view, the improper parts of the cross-examinations are properly viewed as relatively isolated events that were clearly collateral to the focus of the evidence adduced at trial. I have every confidence that the jury decided this case “on the evidence” as it was instructed to do by the trial judge.
Issue 3: The Absence of a Limiting Instruction as to the Use the Jury Could Make of Parts of Sergeant Baron’s Evidence
[49] Sergeant Baron, the lead investigator, was cross-examined for three days. Defence counsel attempted to demonstrate in that cross-examination that the police were aware of evidence pointing to several other suspects, but did not follow up on that evidence. Defence counsel also cross-examined Sergeant Baron to show that the case against the appellant was based largely on the statements allegedly made to the police by his brothers and father. Counsel’s purpose was clear. She wanted to show that the police had focused their investigation on the appellant to the exclusion of other viable suspects and that when that investigation failed to uncover sufficient evidence against the appellant, the police coerced statements from his relatives to make their case against the appellant.
[50] In the course of the lengthy cross-examination of Sergeant Baron, counsel elicited a great deal of hearsay evidence concerning other potential suspects, steps taken to investigate those suspects, and other facets of the police investigation. Counsel also elicited from Sergeant Baron, not only his own opinion about the state of the investigation at various points and time, but also his understanding of the opinion of other officers concerning facets of the investigation. This evidence appeared designed to show first, that Sergeant Baron had certain fixed opinions which were not subject to change regardless of the evidence, and second, that certain officers at certain points in the investigation regarded the circumstantial evidence tying the appellant to the homicide as far from strong.
[51] Not surprisingly, defence counsel’s line of questioning led Sergeant Baron to explain why the police took steps that they did and the manner in which they treated the evidence of other potential suspects. In the course of defending the investigation against counsel’s attack, Sergeant Baron made it clear that in his opinion the investigation was thorough, proper, had eliminated other potential suspects, and that the appellant was the killer. None of this evidence could possibly have come as a surprise to defence counsel.
[52] Counsel for the appellant accepts that all of the relevant parts of Sergeant Baron’s evidence were elicited on cross-examination. He also accepts that there was no request for any kind of a limiting instruction. He submits, however, that the trial judge was obliged in law to instruct the jury, at a minimum, that the hearsay parts of the evidence could not be used by the Crown to support its case and that the jury should disregard Sergeant Baron’s personal opinions about the guilt of the appellant. Counsel relies on R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716.
[53] In oral argument, counsel acknowledged that this ground of appeal, standing alone, would not merit a new trial. He submitted that it could, however, give added significance to the other errors alleged. As I am satisfied the other two grounds of appeal fail, it is not necessary for me to decide this ground. I will, however, address it briefly.
[54] This case is not like Van. In that case, the impugned opinion evidence was elicited by the Crown and in a manner that suggested that the officer was aware of other facts unknown to the jury. Here, the impugned evidence was elicited entirely on cross-examination as part of a calculated defence strategy. Nothing said by Sergeant Baron suggested that he was relying on information unavailable to the jury.
[55] Counsel’s failure to request a limiting instruction must be taken to have been a tactical decision. Counsel had the trial judge’s charge in draft form days before it was delivered. She did not request any limiting instruction. In her closing address, counsel made wide use of the hearsay evidence elicited from Sergeant Baron to support the contention that there were other viable suspects and that the police investigation was inadequate. A limiting instruction might have compromised defence counsel’s submission that the jury should take a broad view of Sergeant Baron’s evidence.
[56] Jury instructions are not an abstract dissertation on the fine points of criminal law or evidence. They are plain language directions intended to assist the jury in arriving at a true verdict. To fulfil that role, the instructions must be tailored to the issues raised and the positions taken at trial. The trial judge put Sergeant Baron’s evidence to the jury as it was elicited by the defence. Defence counsel had obviously decided that from the defence perspective, the less said about any limits on the jury’s use of Sergeant Baron’s evidence the better it would be for the defence. Counsel for the appellant cannot undo those tactical decisions several years later and criticize the trial judge for not including a limiting instruction that is inconsistent with the manner in which the defence was conducted at trial.
Conclusion
[57] I would dismiss the appeal.
RELEASED: “DD” “NOV 30 2010”
“Doherty J.A.”
“I agree K. Feldman J.A.”
“I agree E.E. Gillese J.A.”