R. v. Earhart, 2010 ONCA 874

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486. (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(2) For the purpose of subsection (1), the “proper administration of justice” includes ensuring that.

(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and

(b) justice system participants who are involved in the proceedings are protected.

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).

CITATION: R. v. Earhart, 2010 ONCA 874

DATE: 20101220

DOCKET: C48684 and C49686

COURT OF APPEAL FOR ONTARIO

Feldman, Simmons and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Donald Earhart

Appellant

Julian N. Falconer and Julian Roy, for the appellant

Howard Leibovich, for the respondent

Heard: April 16, 2010

On appeal from the conviction entered by Justice P. B. Hockin of the Superior Court of Justice, sitting with a jury, dated March 18, 2008.

Epstein J.A. (concurring):

I. OVERVIEW

[1] The appellant, Donald Earhart, appeals from his conviction for the first degree murder of Ronald Sullivan. His argument focuses on evidence of his bad character that was adduced by his co-accused, Ronald Kirk. He contends that in the unusual circumstances of this case, the fact that the jury had this evidence available to them for their deliberations, coupled with problems with certain related aspects of the jury charge, resulted in his being denied a fair trial.

[2] Sullivan was last seen alive during the night of October 14 and early morning of October 15, 2004. On the night of his disappearance, he had been observed in the company of Earhart, his girlfriend, T.D., and his cousin, Kirk. Sullivan’s mother reported him missing on October 19, 2004. His remains were located on April 26, 2005.

[3] The Crown charged both Earhart and Kirk with first degree murder. The two were tried together. In the month-long trial, the Crown’s case centred on the potential liability of each of the two men.

[4] Kirk’s defence was that Earhart killed Sullivan and did so, unassisted. In his testimony he admitted that he was with Earhart when the killing took place. However, he said, he took no steps then, or during the evening leading up to Sullivan’s death, to aid in the commission of the murder. Alternatively, Kirk took the position that if the jury were to find that he did assist Earhart, he did so under duress from Earhart.

[5] Earhart neither testified nor called evidence on his own behalf. His defence was that the main witnesses were unreliable and the case for the Crown did not establish beyond a reasonable doubt that he participated in the murder.

[6] On March 18, 2008, the jury returned a verdict of guilty of first degree murder in the case of Earhart and not guilty in the case of Kirk.

[7] In his factum, counsel for Earhart identified nine instances of bad character evidence, elicited by Kirk that the jury was allowed to hear.

i. He had scalded T.D.’s young son;

ii. He beat T.D. viciously and repeatedly;

iii. He had prior unspecified dealings with the Children’s’ Aid Society;

iv. His own family was frightened of him;

v. He provoked fights with Davey’s neighbours and was prepared to bring a gun to the fights;

vi. He had killed before and been on trial for murder before;

vii. He kept a baseball bat with nails in it in Kirk’s apartment;

viii. He had committed many crimes including break and enters and assaulting police officers and had a bad criminal record; and

ix. He was a frightening man who, for no apparent reason, threatened people.

[8] The trial judge admitted this evidence on a number of bases including that Kirk was mounting a “cut-throat” defence that it was Earhart, not he, who killed Sullivan. However, at the conclusion of the evidence, the Crown advised the trial judge that he was no longer taking the position that Kirk was a principal to the offence of murder as there was no evidence to support that position. The Crown was therefore going to argue to the jury that it was Earhart who had killed Sullivan and that the jury should only find Kirk guilty of murder on the basis that, by assisting Earhart, he was a party to the offence.

[9] On appeal Earhart submits that this change of position resulted in the jury’s being left with a substantial amount of highly prejudicial evidence that had little or no probative value to the issues the jury ultimately had to decide.

[10] I will focus on the evidence of two women that Earhart told each of them he had killed before (the “impugned evidence”). While I do not suggest that the rest of the bad character evidence was only trivial in terms of its prejudice, the impugned evidence was by far the most prejudicial.

[11] In the analysis that follows, I conclude that the charge to the jury was confusing in relation to Kirk’s potential criminal liability. Furthermore, I am of the view that the trial judge erred in his instructions to the jury with respect to the bad character evidence.

[12] However, while in my view the jury was not properly instructed in a number of respects, the Crown’s case against Earhart was formidable—sufficiently so that I would apply the curative proviso and dismiss the appeal.

II. UNDERLYING FACTS

[13] In the light of the central issue Earhart raises on this appeal, the admission of bad character evidence, I find it necessary to provide a rather lengthy summary of that aspect of the evidence and the trial chronology, including the charge, in order to explain the circumstances surrounding the admission of the impugned evidence and the instructions the jury was given as to the ways in which it could and could not be used.

Events of the Night of October 14, 2004

[14] The following summary of what transpired on the night when Sullivan was killed comes primarily from the testimony of Kirk, T.D. and members of Kirk’s family.

[15] The evening of October 14, 2004, began with Earhart and Kirk driving around and smoking crack. They were periodically accompanied by two women - Melissa Davey and T.D. With them, they had a gun belonging to Earhart.

[16] At one point, Earhart called Sullivan and arranged to meet him at a Burger King. Sullivan, who arrived with two other men, agreed to go off with Earhart, Kirk and T.D. As the four drove around, Earhart became increasingly angry at Sullivan. In addition to confronting him about some allegedly adulterated crack he had sold him, Earhart was enraged over the fact that Sullivan had come to meet him in the company of the other men. He thought that Sullivan had tried to “set him up”. On numerous occasions during the evening, Earhart violently assaulted Sullivan, both inside and outside of the car. After all four smoked some crack, Earhart made Sullivan take off his shirt, jacket and shoes and get into the front seat beside him. Earhart drove off with the gun in his lap, pointed at Sullivan.

[17] Kirk testified that as the group continued to drive around, Earhart’s ire increased. In addition to his growing rage against Sullivan, he was angry at Kirk for running low on gas.

[18] Eventually the group ended up at the house of Linda Wein, an aunt to both Earhart and Kirk. By this time, Sullivan had been blindfolded. Earhart woke Wein up to ask her for gas. Wein testified that Earhart told her “he was upset ... Ron [Kirk] was suppose to take them to somebody’s house and that he was going to kick the f’in shit out of him [Kirk]” and that he had been in a fight earlier with someone in his car, and he “beat the crap out of him.” She testified that Earhart was very angry when he left.

[19] Still in search of gas, the group proceeded to the house of B.K., a relative of both Kirk’s and Earhart’s, still in search of gas. Both B.K. and her son P.K. testified that Earhart took a blindfolded man to the side of the house and repeatedly beat him. Kirk, in response to shouted demands from Earhart, brought the gun to him.

[20] Eventually, Earhart drove off with Kirk and Sullivan. T.D. stayed with B.K.

[21] Kirk testified that the three men stopped at a bush lot where Earhart pulled Sullivan out of the car and yelled at him to remove the rest of his clothing. Earhart shouted to Kirk to “get the fuck over here. Bring me the fuckin’ gun.” When Kirk got out of the car, he saw Earhart and Sullivan fighting and pushing. He then saw Earhart “just slit his throat”. Sullivan fell to the ground and Earhart stabbed him again in the stomach area. Kirk helped Earhart pull Sullivan into the bush. Sullivan started gurgling and Earhart stabbed him twice more. They covered Sullivan with branches. Earhart told Kirk that if anyone found out, Kirk and his mother would be hurt.

[22] Kirk and Earhart returned to B.K.’s house. They had blood on their hands and clothing. B.K. asked where the other man was and Earhart said that he beat him up and he had run away. T.D., who was still at B.K.’s house, testified that Earhart told her that this was “his messiest kill yet”. Kirk made a gesture to his throat and a gurgling sound. Earhart and Kirk changed, borrowing clothes from one of Kirk’s relatives.

[23] Earhart and Kirk left together, looking for drugs. They threw Sullivan’s clothes into a field and disposed of the gun in a ditch. Later that day, on Earhart’s instructions, T.D. cleaned the car and got rid of a cell phone.

Earhart’s Arrest

[24] The police commenced an investigation when Sullivan’s mother reported him missing. Upon being interviewed by the police, T.D. made statements that were favourable to Earhart.

[25] Then, in early 2005, T.D. went to the police, recanted her previous story and provided the police with statements that incriminated Earhart. In April 2005, on the basis of T.D.’s new statements and an extensive police investigation, the police found Sullivan’s body and arrested Earhart and Kirk on the charge of first degree murder.

Statements Made After the Killing

[26] Various witnesses testified about statements Earhart made after Sullivan went missing. One of these was V.S., a friend of Sullivan’s who was living in his house. Her evidence, supported by T.D., was that on October 15, Earhart went to Sullivan’s house and asked where Sullivan was, claiming that he owed him money arising out of a drug deal. T.D. testified that Earhart instructed her to tell people that after they left Davey’s house that night, they went home and had sex. He also told her that he thought he should kill Kirk, because Kirk was going to crack. Davey testified that when it became apparent Sullivan was missing, Earhart told her he had just received a phone call from Sullivan and that he was in jail. P.K.’s evidence was that he was afraid to go to the police and tell them what he knew because Earhart had said to him “say anything, you’ll see what happens”.

[27] Kirk testified that, during the various court proceedings and while they were incarcerated, Earhart personally and through his father, repeatedly threatened him and his family if Kirk did not “get on the same page” and “shut up”.

The Admission of the Impugned Evidence

[28] T.D. was the eighth witness called on behalf of the prosecution. After she testified in chief, Kirk’s counsel made submissions to the trial judge that, during his cross-examination of T.D., he intended to elicit bad character evidence regarding Earhart on the basis that this evidence was relevant in three respects.

[29] First, it was relevant to the jury’s determination of whether Kirk had raised a reasonable doubt as to whether he was the one who killed Sullivan - the “cut-throat” defence. Counsel submitted as follows:

[Y]ou heard [T.D.’s] evidence that at some point Donny Earhart, Ron Kirk, with Ron Sullivan, leave [B.K.’s] house and the two of them come back without Ron Sullivan. So, what happens in that vacuum, who knows at this particular point in time, but one of the purposes for propensity, bad character type of evidence is to establish or at least create a reasonable doubt as to which of the two did commit that murder ... the court would have to instruct the jury that that type of evidence would not be proof that Mr. Earhart did it. But, it can raise a reasonable doubt as far as Mr. Kirk is concerned....

[30] Kirk’s counsel further argued that the evidence would be relevant to Kirk’s defence of duress:

And, also duress could be argued in this case and we hear that from T.D.’s evidence herself where she says at some point during that trip the focus seemed to turn away from Ron Sullivan and turn on Mr. Kirk and she says Mr. Kirk had the gun put in his face at some point and his life was threatened.

[31] Finally, defence counsel argued that the evidence of Earhart’s propensity for violence was relevant to T.D.’s credibility. It helped establish her fear of Earhart which, in turn, could be used to explain her inconsistent versions of the events that she gave to the police:

It would be my intention to bring out on cross-examination, your honour, that at the time T.D. gave I think seven statements to the police. The first two I think were not true and then the third one she’s starting to, I think, say something similar to what she’s trying to say here in court. But, before she gave that statement to the police she inquired about her safety, her son’s safety, her mother’s safety, in relation to Mr. Earhart, and I think any friends or associates, family etc. T.D. is certainly, you know, intimately connected to this whole – whole incident. I’d be asking T.D. – like she’s participated in things, for example, washing blood off Donny Earhart, cleaning out that car thoroughly ... and the reason why she did it in my submissions I would like to bring out in cross-examination is that, she has felt controlled, intimidated, and manipulated by Donny Earhart throughout that five to six year relationship as a result of physical – and not only physical abuse but emotional abuse by Donny Earhart over five or six years.

[32] On these three bases, the trial judge and all counsel agreed that propensity evidence in relation to Earhart was relevant.

[33] It followed that, apart from two instances in which the trial judge excluded reputation evidence and hearsay, all of the bad character evidence was admitted without further argument or consideration by the trial judge. This evidence, including the impugned evidence, was adduced through the testimony of a number of witnesses including Davey, Jurevicius, T.D., Wein and Kirk.

The Change in the Crown’s Position

[34] At the conclusion of all of the evidence, Crown counsel advised the trial judge that his position concerning Kirk’s potential involvement in Sullivan’s killing had changed. Crown counsel submitted that the evidence demonstrated that there was only “one principal,” Earhart, and as the trial judge suggested, reference to “killers” in the plural, should be removed from the charge. He submitted that, from Kirk’s various statements such as “we’ve gotta do this, we’ve gotta take care of this” and his role in holding the gun, there was sufficient evidence that Kirk had aided in the murder. However, there was “simply no evidence that they [Earhart and Kirk] did it together.”

[35] Counsel for Kirk agreed with the Crown’s change of position. Earhart’s counsel made no submissions on the turn of events.

Closing Submissions

[36] Focusing on Kirk and T.D., Earhart’s counsel reviewed the testimony of witnesses that potentially implicated Earhart, setting out reasons why those witnesses ought not to be believed. She argued that Kirk’s evidence was particularly suspect due to his predictably strong motivation to implicate Earhart as the killer. With respect to T.D., Earhart’s counsel pointed out that during the investigation, T.D. had made 12 statements to the police containing a number of admitted lies. Counsel drove the point home by asking the members of the jury the following rhetorical question: “How are we supposed to know what part is the truth and what part is a lie?” She also mounted a strong challenge to the credibility of other Crown witnesses, identifying, among other things, inconsistencies in their evidence and their close relationships with Kirk. The straight-forward defence advanced on behalf of Earhart was that given the prosecution witnesses were unworthy of belief; the Crown had failed to prove its case against Earhart beyond a reasonable doubt.

[37] Earhart’s counsel made a specific plea for the jury to ignore any evidence of Earhart’s bad character:

And, ladies and gentlemen, finally, you’ve heard bits and pieces of information about Donald Earhart’s character. Various people have suggested that they didn’t like Mr. Earhart for one reason or another and that he is a person of bad character. And, ladies and gentlemen, you’re not being asked to decide whether or not Mr. Earhart is or is not a nice person. You may think that he is, you may think he’s not, you may not know. You may not have enough information to make that decision. However, in deciding whether the Crown has proven their case against Mr. Earhart beyond a reasonable doubt you must put that out of your mind. You must not decide the case on the basis of saying, well, Mr. Earhart does not seem to be a nice person and therefore he must be guilty. His Honour will tell you more about this.

[38] In the course of his closing submissions, counsel for Kirk repeatedly suggested that Earhart’s lawyer had not taken the position that it was Kirk who killed Sullivan. It followed, he argued, that Earhart must have. Like Earhart’s counsel, he emphasized the point by way of a rhetorical question: “My friend gets up and she questions the credibility of a lot of these witnesses, but she’s not pointing the finger at Mr. Kirk ... And I say to you, if it wasn’t Mr. Kirk, then who else? Who else?”

[39] Kirk’s counsel focused his argument on a review of the evidence that would support Kirk’s defence of duress. He referred to evidence given by a number of witnesses who saw the men together during the period just prior to the killing, relating to Earhart’s threats toward and mistreatment of Kirk. And he referred to Kirk’s testimony about how Earhart treated him as the events leading to Sullivan’s death unfolded.

[40] Kirk’s counsel also spent considerable time on the bad character evidence adduced against Earhart, including statements Earhart had allegedly made about himself. In particular, he focused on the evidence of T.D. that Earhart had told her “this is my messiest kill yet” and on Jurevicius’s testimony that he had bragged to her about having killed before:

So, this is my messiest kill yet. Now, why would the word ‘yet’ be in there? My messiest kill yet. That’s a nice word to have in there, because recall that Krista Jurevicius, however you pronounce her name, you know who I’m talking about, Krista Jurevicius, she says and I’m going to reference her testimony a little bit but I just want to look at an aspect of it, she says – and there’s no doubt in your mind who’s running in the house, tearing their shirt off. It was Donny Earhart. But, she says he says, you don’t know who I am. ... you don’t know who I am but he also says, I’ve killed two people. He said that. He said, I’ve been in the penitentiary. And, [T.D.] tells us that he told her he killed people, she mentioned a number of 16. But, [T.D.] also said that Donny Earhart told her at one point that if he was going to kill somebody he’d go for the neck and that’s what we’ve got in this particular case. So, when you look at the word ‘messy’ when you look at the word ‘yet’, yet means – you know would tell you, oh, he’s probably killed some people, so it goes to support those two statements.

[41] The Crown summarized, relatively briefly, the evidence of the key witnesses, namely Kirk and T.D., in support of his position that the evidence demonstrated beyond a reasonable doubt that Earhart factually caused Sullivan’s death and, in law, should be found guilty of first degree murder.

[42] The Crown’s theory with respect to Kirk was that he was a willing participant with Earhart in the entire transaction, beginning with the abuse of Sullivan in the car and ending with Sullivan’s death. Crown counsel argued that Kirk had assisted Earhart by periodically driving the car, by blindfolding Sullivan, by holding Sullivan down, by retrieving the gun for Earhart, and finally by pointing the gun at Sullivan about 20 feet from the final struggle during which Sullivan was killed. According to the Crown, “Ron Kirk’s presence with the gun in these circumstances viewed objectively could be considered a substantial assistance to Don Earhart in committing the murder and another example of Ron Kirk backing up his cousin.”

[43] The Crown made it clear to the jury that the prosecution was no longer taking the position that Kirk was guilty as a principal to the offence of murder in the sense that Kirk was the one who committed the act that led to Sullivan’s death. The Crown’s position as to Kirk’s potential criminal responsibility rested solely in his being a party.

[44] The Crown argued that the defence of duress was not available to Kirk. He urged the jury to conclude that Kirk went along with Earhart due to the strength of their relationship as friends and cousins. He asked the jury to consider the number of occasions when Kirk could have removed himself from the situation that was building during the evening of October 14 and early morning of the 15th.

[45] The Crown next turned to Kirk’s criminal culpability, assuming the jury concluded that he acted under his own free will. The Crown said: “[i]t’s the position of the Crown that there is evidence in this case to support the guilt of Ron Kirk on first degree murder, not as a principal but as someone who assisted the principal”.

[46] The Crown then proceeded to review the possible verdicts against Kirk—guilty of first degree murder, second degree murder or manslaughter—telling them that any one of the three verdicts was available to them on the basis that Kirk assisted in the killing but did not actually kill Sullivan. That said, the Crown urged the jury to return a verdict of guilty of first degree murder.

The Jury Charge

Kirk – principal or aider or party

[47] The trial judge instructed the jury as to both possibilities relating to Kirk’s criminal culpability leading to a verdict of guilty of first degree murder – that Kirk was the actual killer or, by assisting Earhart, was a party to the offence.

[48] For example, the trial judge advised the jury that he had prepared two decision trees for their assistance. The first was the ‘perpetrator’ decision tree and the second was the ‘party’ decision tree. The trial judge explained to the jury that if they found that one of the co-accused was the perpetrator, then they would move to the second decision tree in order to determine if the other co-accused was a party. The first question on the ‘perpetrator’ tree, as described by the trial judge, was:

Did Mr. Earhart or Mr. Kirk, by an unlawful act, cause the death of Ronald Sullivan? ... [T]he first step in this case is to decide whether beyond a reasonable doubt that we have in this courtroom ... in the form of Mr. Earhart or Mr. Kirk, Mr. Sullivan’s killer.

[49] Notwithstanding the various parts of the trial judge’s instructions to the jury that it was open to them to find Kirk guilty as a principal to Sullivan’s murder, the trial judge also provided strong direction to the contrary. I refer to one passage in which he instructed the jury that “in this case ... all the evidence points away from Mr. Kirk as the killer or the principal. If you think Mr. Kirk is guilty of any criminal offence in this case, it may only be on the basis of the evidence that we have heard, as a party to the offence” (emphasis added).

[50] The trial judge actually went further and expressed his own unequivocal opinion that there was no evidence that Kirk participated in killing Sullivan, in a physical way. He said:

I can think of no evidence in this case that Mr. Kirk by a physical act became an essential, substantial or integral part of the knife attack and so Mr. Sullivan’s death, and I haven’t heard anybody suggest anything. Now, the decision is for you to make but I can think of no evidence. None. [Emphasis added.]

Bad character evidence in relation to Earhart

[51] As for the uses to which the propensity evidence could be put, the trial judge gave three distinct instructions to the jury. They involved the potential relevance of the evidence to T.D.’s credibility, to Kirk’s defence of duress and to whether Kirk or Earhart was the actual killer.

[52] First, with respect to T.D.’s credibility, the trial judge charged the jury as follows:

In assessing what weight or importance you will give to the evidence of [T.D.] you may reasonably take these inconsistencies and her admission to lying to the police into account. You may as well take into account her explanation for the difficulties with her statements and why she lied to the police. She explained that what she told the police initially is what Mr. Earhart told her to say and that in the first two statements she was covering up for him.

T.D.’s evidence was that at the beginning she followed Mr. Earhart’s instructions to cover up for him. She had been in an abusive relationship with him which involved control and manipulation. She gave examples of assaultive behaviour by Mr. Earhart. She was frightened of Mr. Earhart, she told us.

[53] The trial judge also instructed the jury on how Earhart’s propensity for violence could be used with respect to Kirk’s defence of duress:

With respect to Mr. Kirk’s state of mind and what he might reasonably expect of Mr. Earhart at that point [of the alleged murder], you may take into account the belligerence – the history of belligerence and threats to Mr. Kirk through October 14^th and into the early hours of October 15. That evidence is lengthy and included Mr. Kirk’s description of Mr. Earhart shoving the gun into his face when Mr. Kirk argued with Mr. Earhart about going to B.K.’s residence, and the evidence that the gun had been fired earlier in the evening. You may as well take into account the evidence of T.D., B.K. and P.K. with respect to Mr. Earhart’s behaviour to Mr. Kirk and the effect of the behaviour on Mr. Kirk that they observed. There is evidence as well, that the level of Mr. Earhart’s agitation and assaultive behaviour increased as the night wore on, and that Mr. Kirk experienced or watched this on the trip north, at Huron Park and the home of [B.K.]. You may as well take into account Mr. Kirk’s understanding of Mr. Earhart’s disposition to violence in considering Mr. Kirk’s state of mind and how he would react to Mr. Earhart, whether he would believe that any threat might be carried out by Mr. Earhart.

[54] With respect to the question of who, as between Earhart and Kirk, had killed Sullivan, the trial judge told the jury that the evidence could be used to raise a reasonable doubt about Kirk’s involvement as principal but could not be used to support the inference that Earhart was the killer:

In this case, you have heard evidence with respect to Mr. Earhart’s disposition or propensity for violence so I want to instruct you specifically on how you can use this evidence in considering the case of Mr. Kirk and how you must not use the evidence in considering the case of Mr. Earhart. Firstly the use to which Mr. Kirk may make use of such evidence:

Such evidence may assist you in deciding whether the Crown has proven its case against Mr. Kirk. So you may take such evidence into account in deciding whether Mr. Kirk committed the offence, because Mr. Earhart’s propensity to commit the offence charged may raise a reasonable doubt that Mr. Kirk committed the offence or convince you that he was not involved. So it is really nothing more than a piece of circumstantial evidence which may form the basis of a finding that he did not commit the offence charged or that there is a reasonable doubt that Mr. Kirk committed the crime charged.

Secondly, the use to which such evidence must not be put in considering the case of Mr. Earhart: You must not use such evidence to decide that Mr. Earhart committed the offence of murder because he is the sort of person who would likely do so.

It is a fundamental rule of our criminal justice system that criminal responsibility depends on the Crown’s ability to prove beyond a reasonable doubt that the accused committed the act of murder set out in the indictment. Mr. Earhart is not on trial for past misconduct or misconduct which followed the alleged event. He is being tried only for the events of October 14th and 15th.

So, to summarize, you may use the evidence of Mr. Earhart’s propensity for violence to help you decide that in fact, Mr. Kirk did not commit the offence or there must be in your minds, is the position of Mr. Kirk, reasonable doubt that Mr. Kirk committed the offence of murder or helped in its commission. You must not use this evidence, however, as I say, to help you decide that Mr. Earhart committed the offence charged.

[55] The trial judge immediately went on to highlight examples of the bad character evidence, including the following:

Some of the evidence on Mr. Earhart’s propensity or disposition for violence is the following:

Krista Jurevicius, at Donald [sic] Sullivan’s house, Mr. Earhart told her that he had killed two people and been to penitentiary.

[T.D.], over the time they were together, Mr. Earhart hit her with a bat and belt and struck her shins with a crow bar. ... He told her that he had killed before.

[56] Significantly, later in the charge, the trial judge returned to the issue of Earhart’s bad character evidence and instructed as follows:

There is evidence in this case of Donald Earhart’s disposition to violence:

There is an absence of such evidence in Mr. Kirk. As I have instructed you over the use of such evidence it may be used to decide as between the two men, who is more likely to have attacked Ronald Sullivan.

[57] There were no objections to the charge. The jury asked only one question. After three hours of deliberation the jury asked the following question: “Can you review again for us in Decision Tree 2, the definition of aiding and abetting, party to the offence?”

[58] An hour and a half after the question was answered, the jury returned their verdicts.

III. ISSUES

[59] The three issues for this Court are:

1. Was the bad character evidence admissible?

2. If it was admissible, was the jury adequately instructed as to its use?

3. If the jury was not adequately instructed can the Crown rely on the proviso?

IV. ANALYSIS

The impugned evidence

[60] I will start by setting out the specific exchanges in which Kirk’s counsel elicited the impugned testimony.

[61] During Jurevicius’s cross-examination by counsel for Kirk, the following discussion took place:

Q: ... Now, I understand that on that evening you were at Ron Sullivan’s house and this person, Little Don or Don Earhart, came in down the hall to the kitchen taking his shirt off, correct?

A: Yes.

Q: And he stated, “Don’t you know who I am?” ...

A: Yes.

Q: ... correct? And I take it that not only did he say, “Don’t you know who I am,” he also said that he killed two people?

A: Yes.

Q: What was that?

A: Yes.

Q: You recall him saying that?

A: Yes.

Q: And that he had been in the penitentiary?

A: Yes.

Q: And that was as he came in in that aggressive rage, taking his shirt off, you know, sort of charging up to Ron Sullivan?

A: Yes.

[62] The jury heard similar evidence from T.D., also elicited by Kirk’s counsel:

Q: But you don’t remember Donny saying anything about he stabbed the guy in the neck?

A: No, I don’t know if I just assumed that or if he actually said it. What I do know is that through all the years I was with Donny, he always said that that was how he would kill someone.

Q: That was how he would kill someone?

A: Yes.

Q: And I take it from your testimony in cross-examination, at one point you said that he’s told you that he’s killed somebody?

A: Yes, he told me killed 16 people.

Q: Oh, he told you he killed 16?

A: Yes.

Q: And did he mention who they were?

A: No.

[63] In these passages, each of Jurevicius and T.D. are testifying about what someone else told them. Because the ‘someone else’ is Earhart himself, the evidence falls within the ‘admissions by a party’ exception to the rule against hearsay. There was no issue as to the necessity and reliability of this evidence and therefore, from a hearsay perspective, it was admissible for the truth of its contents: see R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358 at para. 34.

The meaning that could be attributed to the impugned evidence

[64] It is important to distinguish between what the jury could take from the impugned evidence and what use they could make of it. The former I will refer to as the “meaning” of the evidence. The meaning was for the jury to decide, although, as discussed at paras. 106-107 below, in my view, it was incumbent on the trial judge to give them some direction in this regard.

[65] The meaning the jury could assign to the impugned evidence depended on the answers to a series of questions. First, they had to determine whether they believed the testimony of each of T.D. and Jurevicius that Earhart told them he had killed before. Assuming they believed one or both of the witnesses, the jury then had to decide whether or not Earhart was telling the truth when he made those statements. If they decided that he was, then it was open to them to conclude that Earhart had in fact killed before. If they decided that he was not telling the truth, then they could conclude that he was bragging, or simply trying to intimidate, or lying for some other reason.

[66] The use that could be made of the impugned evidence depended to some degree on what meaning the jury took from it. If they concluded that it demonstrated that Earhart had in fact killed before, the testimony of T.D. and Jurevicius was powerful evidence of Earhart’s bad character. If they concluded that he was simply bragging, in such an extraordinary way, the evidence also demonstrates bad character but arguably not of the same degree of seriousness. Either way, the impugned evidence is relevant; but the former interpretation carries significantly more prejudice.

[67] Regardless, given the charge contained no instructions in relation to the meaning of the evidence, and in the light of the final argument of Kirk’s counsel set out in para. 40 above, it must be assumed, for the purposes of considering Earhart’s fair trial rights, that the jury took the evidence at its highest and concluded that he had killed before.

1) Admissibility of the Bad Character Evidence

The Legal Principles

[68] In order for any evidence to be admitted at trial, it must first be found to be relevant to a material issue. For the majority of evidence adduced, relevance will be obvious, but in some cases a more careful analysis is required. If evidence is relevant, then the focus turns to an assessment of whether there is any reason not to admit it.

[69] This latter step is particularly important when considering bad character evidence. As will be explained below, different tests relating to admissibility apply depending on whether the evidence is led by the Crown or by a co-accused.

[70] Character evidence, though relevant, is always inherently prejudicial. Its relevance comes from the view that “[t]he tendency or disposition of a person to do a certain act is relevant to indicate the probability of his doing or not doing the act”: R. v. McMillan (1975), 7 O.R. (2d) 750 (C.A.) at p. 757, aff’d [1977] 2 S.C.R. 824. The inherent prejudice flows from the natural human tendency to judge a person’s actions on the basis of character.

[71] The concern over prejudice is two-fold. First, a jury might “infer guilt from general disposition or propensity”: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 139. This error is commonly referred to as “moral prejudice”. Second, there is a distracting nature to character evidence, creating what has been called a “reasoning prejudice”. Rather than focusing the trial on whether the Crown has proven the charges, propensity evidence risks distracting a jury with details of other criminal conduct: Handy at paras. 144-46; see also R. v. Pollock (2004), 187 C.C.C. (3d) 213 (Ont. C.A.) at paras. 99-102.

[72] Because of this high and inherent prejudice, evidence of the bad character of the accused is presumptively inadmissible when led by the Crown. In Handy, at para. 36, Binnie J., citing several recent cases, summarized the position of the Supreme Court with respect to this evidence, saying: “[t]he exclusion of evidence of general propensity or disposition has been repeatedly affirmed in this Court and is not controversial.”

[73] The situation is different, however, when one accused seeks to lead evidence of the bad character of a co-accused, in cases where what is known as a “cut-throat” defence is raised by one of the accused against the other. This is where two accused are jointly tried, each with equal opportunity to commit the crime and each alleging that the other committed it: see R. v. Suzack (2000), 141 C.C.C. (3d) 449 (Ont. C.A.) at para. 72. In this scenario, one accused may be permitted to lead propensity evidence against the other accused on the basis of his or her right to make full answer and defence, even though the Crown would not be permitted to lead such evidence: see Suzack at para. 111.

[74] However, in Suzack, at para. 116, Doherty J.A. cautions that even in cases where the cut-throat defence is in play, care must be taken not to “discard a rule that is so fundamental to an accused’s right to a fair trial”, namely, the rule that the Crown cannot make its case by showing the accused’s propensity to commit the crime with which he or she is charged.

[75] In Pollock, at para. 106, Rosenberg J.A. spoke of the “very grave risk of prejudice” associated with the admission of bad character evidence, as follows:

… [S]ince evidence of propensity or bad character can carry a very grave risk of prejudice to the fair trial of the accused against whom the evidence is led, it is incumbent on the trial judge to examine closely the probative value of the evidence and the purposes for which the evidence is tendered. In my view, in a joint trial, counsel’s mere assertion that the evidence is necessary for the accused to make full answer and defence is not sufficient given the grave potential for prejudice to the fair trial of a co-accused. There must be some evidentiary foundation to support this assertion.

[76] The effect of the direction from these authorities is this. Propensity evidence, while inherently prejudicial, may be led by a co-accused so long as the prejudicial effect of that evidence does not clearly outweigh its probative value. This is a lower threshold of admissibility than is applied to character evidence led by the Crown, where the prejudicial effect need only outweigh the probative value for the evidence to be rendered inadmissible: see Pollock at paras. 110, 123.

[77] Despite these differing standards, the concern over prejudice is the same. When bad character evidence becomes potentially admissible, the trial judge, after going through the analysis mandated by Pollock, has the discretion whether to admit the evidence. Its admission is not automatic and the trial judge must engage in a careful and explicit balancing of probative value and prejudicial effect.

[78] If the trial judge concludes the evidence should be admitted, the jury must be carefully and clearly instructed as to how they can use the evidence in considering the case of the accused who adduces it, but not in considering the case of the co-accused: see Suzack at paras. 127-28. The jury must be told in no uncertain terms that the propensity evidence may be used to raise a reasonable doubt as to the guilt of the accused who leads the evidence, but cannot be used in any way to support the Crown’s case against the co-accused. Furthermore, Sharpe J.A., in R. v. Diu (2000), 49 O.R. (3d) 40, makes it clear that the trial judge has an additional obligation to instruct the jury not only as to the use they cannot make of propensity evidence but also the use that they can make of it. He refers to these as positive and negative instructions. A failure to give either prejudices the accused against whom the evidence was led: see Diu at paras. 140-42.

Application of these principles to the impugned evidence

i) Relevance

a. Kirk’s potential liability

[79] I start with the relevance of the impugned evidence to the issues the jury had to decide. Its relevance depends on a number of issues, the first of which is the Crown’s case against Kirk, as it was left to the jury.

[80] As previously indicated, the Crown made it clear in his submissions that he was no longer taking the position that Kirk was a principal in the murder of Sullivan, but rather a party to the offence committed by Earhart. The trial judge, however, gave the jury internally contradictory instructions on this issue: he instructed them that they had to decide which of the two accused killed Sullivan, yet also instructed them that there was no evidence that Kirk killed Sullivan.

[81] While the charge in this respect was confusing, examining the impact of the confusion involves an inquiry into the avenues of liability that were open to the jury in relation to finding Kirk guilty of murder. In R. v. Pickton, 2010 SCC 32, at para. 27, the Supreme Court makes it clear that it is a trial judge’s responsibility to charge the jury on all avenues of liability that arise on the evidence, regardless of the positions of counsel. The jury was therefore entitled to find Kirk guilty as a principal if there was sufficient evidence upon which they could reasonably arrive at that conclusion.

[82] Of course, a person may be found guilty of murder either as a party or as the principal; the offence is the same either way. What adds complexity in this case is that the probative value of the impugned evidence depends on whether or not both of these avenues of liability were properly before the jury in relation to Kirk. If Kirk’s only potential liability was as a party, then the question of who actually killed Sullivan was not a live one. This in turn would affect the probative value of the impugned evidence, as it would no longer be admissible to raise a reasonable doubt, as between Kirk and Earhart, that Kirk was the principal. Its probative value would have to derive from other issues to which it was relevant.

[83] The totality of the evidence of Kirk’s participation in the events of the night, other than his own testimony, can be summarized as follows: Kirk participated in Sullivan’s abuse prior to the murder; Kirk was present when Sullivan was killed; as in the case of Earhart, when Kirk returned to B.K.’s house, he was covered in blood; and, Kirk helped Earhart clean up and dispose of evidence after the killing.

[84] The only evidence about what happened at the scene of the murder itself, and therefore who actually killed Sullivan, was Kirk’s testimony that it was Earhart who killed Sullivan.

[85] This evidence clearly establishes a basis upon which the jury could conclude that Kirk was a party to the offence. Taken at its highest, it shows that Kirk was complicit in the abduction, abuse and confinement of Sullivan, and that he aided and abetted Earhart in his fatal attack on Sullivan. However, the evidence simply cannot form a basis upon which a jury could conclude that Kirk was a principal.

[86] In Pickton, at paras. 62-75, the Supreme Court considered the different levels of participation in an offence that give rise to liability as a principal versus liability as a party. In his concurring reasons, which were not disagreed with by the majority on this point, Lebel J. noted, at para. 73, that:

Although the ultimate legal liability is the same for a principal or for an aider or abettor, the findings of fact necessary and the specific legal principles which apply to each are different.

[87] Specifically, in relation to murder or manslaughter, in order to be liable as a principal one must be a legal cause of the death of the victim, that is, a significant contributing cause. In relation to first degree murder, this requirement is only made out when the accused is an “essential, substantial and integral part of the killing”: see Pickton at para. 64. Either way, this goes beyond acting in concert to lure and kill the victim—it requires participation in the actual killing: see Pollock at para. 75.

[88] In this case, as noted above, there was ample evidence on which the jury could have found that Kirk actively participated in the confinement and abuse of Sullivan leading up to the murder. But there was simply no evidence upon which a jury could have concluded that Kirk participated in the actual killing.

[89] In my view, therefore, the trial judge was correct in instructing the jury that there was no evidence that Kirk killed Sullivan and that the only way in which they could find him criminally responsible for Sullivan’s death was as a party to the offence.

[90] It follows that the trial judge ought not to have left the jury with the possibility that they could find Kirk guilty of murder as a principal. However, while that error may well have caused confusion in the minds of the jury, I am persuaded, based on the evidence, the Crown’s argument and the trial judge’s charge taken as a whole, that the jury went into their deliberations with the understanding that Kirk could be found guilty of Sullivan’s murder, if at all, only as a party to the offence.

[91] Because Kirk’s liability as a principal was not or should not have been before the jury, the impugned evidence was no longer relevant to show that, as between Kirk and Earhart, Kirk was less likely to have been the actual killer due to Earhart’s propensity for violence. However, I disagree with counsel for Earhart that this conclusion renders the bad character evidence, including the impugned evidence, nothing more than impermissible evidence of disposition.

[92] The only consequence of the fact that it was no longer open to the jury to find Kirk guilty of murder as the principal was that it eliminated one basis upon which he could be found guilty of the offence. It remained open to the jury to find Kirk guilty of murder as a party to the offence.

[93] The impugned evidence remained probative of Kirk’s defence that he took no active role in helping Earhart kill Sullivan. This is because, if the jury believed all or part of this evidence, they could conclude that Earhart had killed before and therefore was more than capable of doing so again - without assistance. Of course, the issue in party liability is not whether the principal needed or wanted assistance or encouragement. The inquiry is simply concerned with whether or not the alleged party to the offence actually did render assistance. Nevertheless, as a matter of common sense if there is no evidence that the conduct that underlay the charge, here a brutal killing, was common to the accused, it is open to the jury to reason that it was less likely that he or she committed the offence unassisted. It follows that in the circumstances here, if there is evidence that Earhart has previously committed the same or similar crimes, the jury may take that into consideration in their determination of whether they believe Kirk’s testimony that he played no part in assisting Earhart in the killing.

b. T.D.’s Credibility

[94] The bad character evidence was also important to Kirk for the purpose of supporting T.D.’s credibility. T.D.’s evidence was significant to Kirk because it supported his testimony that Earhart was the aggressor and that his threats and abuse were directed at both Sullivan and Kirk.

[95] For a number of reasons T.D.’s credibility was very much in issue. Most significantly, T.D. told the police different stories about Earhart’s activities on the night in question. At trial, T.D. sought to explain having initially lied to the police by saying that she was afraid of Earhart. Her evidence that he told her he had killed before was therefore relevant to this issue – her fear of Earhart.

[96] Jurevicius’s statement also had at least some probative value in relation to T.D.’s credibility, as the fact that Earhart told Jurevicius he had killed before made it more likely that he said the same thing to T.D. In addition, Jurevicius’s testimony spoke to Earhart’s violent character more generally and hence made it more likely that he had actually done the various things T.D. claimed had made her afraid of him. While Jurevicius’s evidence did not have significant probative value in this regard, it was nonetheless relevant.

c. Kirk’s Defence of Duress

[97] Kirk’s evidence was that, throughout the evening, he acted out of fear of Earhart. Kirk, on a number of occasions in his testimony expressed his fear. I refer to passages such as “I was scared for my family, I was scared for [T.D.], I was scared for [Sullivan] ... when somebody pulls a gun on you, you just do what you’re supposed to do.”

[98] The impugned evidence was relevant to Kirk’s defence of duress in two ways. The jury could use evidence of Earhart’s violent disposition in assessing whether they believed Kirk that he acted in a threatening manner toward him. The evidence could also be used by the jury in their assessment of whether Kirk was ever in a position where he could safely escape.

[99] While, in my view, the probative value of the impugned evidence in relation to Kirk’s defence of duress is not high, its relevance to this issue merits consideration along with the testimony’s relevance to the other issues outlined above.

d. Summary

[100] I therefore conclude that the impugned evidence remained relevant to Kirk’s ability to raise a reasonable doubt as to whether he actively assisted Earhart in his killing of Sullivan. Putting it another way, the change in Kirk’s potential liability from that of a principal to that of a party, modified but did not eliminate the concept of the so-called cut-throat defence. The jury was entitled to take the impugned evidence into account in assessing whether Earhart was the type of person who would have killed Sullivan on his own. It therefore supported Kirk’s assertion that he did not actively participate in the murder.

[101] Furthermore, the change in the route to Kirk’s potential culpability in Sullivan’s murder did not alter the circumstantial relevance of the impugned evidence to Kirk’s defence of duress or to T.D.’s credibility.

(ii) The Prejudicial Effect

[102] I have already discussed the highly prejudicial nature of the impugned evidence. Significantly, for the purposes of this analysis, courts have expressed particular concern over bad character evidence that establishes past criminal conduct, especially when that conduct is similar to the charge at issue. As LaForest J. noted in R. v. Corbett, [1988] 1 S.C.R. 670 at p. 741:

Clearly, too, the more similar the offence to which the previous conviction relates to the conduct for which the accused is on trial, the greater the prejudice harboured by its admission. ... I think that a court should be very chary of admitting evidence of a previous conviction for a similar crime...

Although writing in dissent, the factors enumerated by LaForest J. were specifically endorsed by the majority at pp. 697-98: see also R. v. Wilson (2006), 210 C.C.C. (3d) 23 at paras. 33-35.

[103] Earhart was on trial for first degree murder, and the jury heard testimony that he claimed to have killed before. It is hard to imagine evidence more likely to give rise to the danger of moral prejudice that is the hallmark of character evidence.

(iii) Balancing Probative Value and Prejudicial Effect

[104] As outlined above, the impugned evidence was probative of three separate issues relevant to Kirk’s defence. Its prejudicial effect, as I have said, was high. Nevertheless, in my opinion the probative value of the impugned evidence was not clearly outweighed by its prejudicial effect. I do not reach this conclusion easily, but I am mindful of the importance of T.D.’s testimony, and hence her credibility, to Kirk’s defence, and of the importance to Kirk of establishing that Earhart acted alone.

2) Adequacy of the Instructions to the Jury

[105] I have concluded that, despite the change in the case against Kirk, the impugned evidence was properly before the jury. The question then becomes whether the trial judge’s instructions adequately equipped them to use it in a manner that did not interfere with Earhart’s right to a fair trial.

[106] First, I consider the trial judge’s failure to give the jury appropriate guidance concerning the meaning of the impugned evidence. As previously discussed, the jury was not instructed as to the manner in which they should approach the testimony of T.D. and Jurevicius. In the light of the potentially dangerous nature of this evidence, I am of the view that it was incumbent on the trial judge to provide the jury with careful instructions in order to ensure that they did not automatically leap to the conclusion that Earhart was a seasoned killer. This did not happen.

[107] I am not suggesting that a trial judge must engage in an instruction of this nature for every piece of evidence adduced—this would be an insurmountable and, ultimately unhelpful task. But in my view, having regard to the grave prejudice to Earhart of the impugned evidence, if misused, the trial judge was required to single it out for individualized treatment.

[108] Admittedly, early in his charge, the trial judge instructed the jury with respect to out-of-court statements. However, he limited that portion of his charge to the testimony of various witnesses about what Sullivan had said. I therefore conclude that he erred in failing to adequately instruct the jury with respect to the meaning they could assign to the impugned evidence.

[109] Next, I consider the trial judge’s instructions relating to the uses the jury could make of the impugned evidence.

[110] As noted by Sharpe J.A. in Diu, a cut-throat defence creates a challenging situation when it comes to the use that can be made of propensity evidence. The court has an obligation to balance the fair trial rights of the accused whose character has been attacked with the co-accused’s right to make full answer and defence. This obligation requires careful instructions as to the uses that can and cannot be made of such evidence, that is, careful positive and negative instructions.

[111] In my view, the charge was deficient in this respect. Specifically, it did not contain give clear instructions about the permissible and impermissible ways in which the evidence could be used in Kirk’s defence.

[112] In terms of the instructions concerning the prohibited use of the impugned evidence, on several occasions the trial judge clearly and accurately instructed the jury that they must not use the propensity evidence to determine whether the Crown had proven its case against Earhart.

[113] However, there were two problems with the negative aspect of the charge concerning the propensity evidence. First, I refer to the following passage that the jury may have taken to mean that they could use the fact that Earhart confessed to previous murders to decide the case against him.

Anything you find Mr. Earhart said to a witness about himself – what he did or said or saw, may be used to decide his case but only his case. What he said is not evidence which may be considered in deciding Mr. Kirk’s case.

[114] Second, in the passage noted in para. 56, above, the trial judge instructed the jury that evidence concerning Earhart’s propensity for violence “may be used to decide as between the two men, who is more likely to have attacked Ronald Sullivan.” This is incorrect. As the trial judge had himself repeatedly said, it could only be used to raise a reasonable doubt as to Kirk’s guilt, not to infer that Earhart was more likely the attacker. It is a subtle distinction, but all the more important for that reason.

[115] These two passages cause me considerable concern, but the main problem was the failure to tell the jury what use they could make of the evidence.

[116] In considering the positive aspect of the trial judge’s charge concerning the propensity evidence, I return to the three issues for which this evidence was relevant - T.D.’s credibility, Kirk’s claim that Earhart killed Sullivan and that he acted alone and Kirk’s defence of duress. It was incumbent upon the trial judge to explain to the jury how the impugned evidence was relevant to each of these three issues. He failed to do so.

[117] With respect to T.D.’s credibility, while the trial judge did not specifically make reference to the impugned evidence, he did remind the jury that T.D. had testified that she was frightened of Earhart. In my view, it would not escape the jury that one source of T.D.’s fear would have been that he had told her of his previous killings. His instructions in this regard were adequate.

[118] With respect to Kirk’s claim that he did not aid Earhart, the trial judge all but failed to give any direction at all on how the impugned evidence supported this position. The sole reference to be found is the following:

So you may take such evidence into account in deciding whether Mr. Kirk committed the offence, because Mr. Earhart’s propensity to commit the offence charged may raise a reasonable doubt that Mr. Kirk committed the offence or convince you that he was not involved. [Emphasis added.]

[119] This instruction flags for the jury that the impugned evidence is relevant to Kirk’s liability as a party, but leaves them in the dark as to how. The chain of inferences leading from the impugned evidence to Kirk’s involvement as a party was reviewed above and I will not repeat it here. What is important is that the jury received no assistance with the task of connecting the evidence to the available inferences. It was up to the trial judge to carefully and clearly guide them through this complex process. Such assistance would not only have shown the jury how to use the evidence properly but also have made it less likely they would use it improperly.

[120] With respect to Kirk’s defence of duress, the trial judge makes a similar error. Again, his sole instruction on how the impugned evidence could be used was inadequate:

You may as well take into account, Mr. Kirk’s understanding of Mr. Earhart’s disposition to violence in considering Mr. Kirk’s state of mind and how he would react to Mr. Earhart, whether he would believe that any threat might be carried out. [Emphasis added.]

[121] The problem with this instruction is that the impugned evidence was not known to Kirk and therefore did not form part of his understanding of Earhart’s disposition to violence. As well, the jury was left without any direction at all concerning whether or how the evidence could be used in relation to Kirk’s defence of duress.

[122] As Sharpe J.A. explained in Diu, the failure to give a positive instruction concerning character evidence not only prejudices the accused who led the evidence, but also the co-accused against whom it was led. At para, 141 he said:

The failure to provide the jury with guidance as to the appropriate use of the evidence left the jury in a vacuum. The evidence had been admitted and the jury should have been clearly told what use it could make of it. The positive part of the instruction was relevant to the situation of [the co-accused] as it would help to ensure that the jury would not use the evidence in an impermissible way. [Citations omitted.]

[123] I agree with this reasoning and conclude that the trial judge erred in failing to give the jury guidance as to the appropriate use of the character evidence. This alone would constitute a significant error warranting a new trial and it is only exacerbated by the problems I have identified with the negative part of the bad character instruction.

3) The Proviso

[124] The Crown submits that given the strength of the case for the prosecution, it is appropriate to apply the proviso.

[125] In R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at paras. 34-36, the Supreme Court recently reviewed the jurisprudence regarding the application of the curative proviso under s. 686(1)(b)(iii) of the Criminal Code. LeBel J., writing for the majority, found that the jurisprudence established two categories of error that could be cured by application of the proviso. The first is “an error so harmless or minor that it could not have had any impact on the verdict.” The second category contains “serious errors that would otherwise justify a new trial or an acquittal, but for the fact that the evidence against the accused was so overwhelming that any other verdict would have been impossible to obtain.”

[126] As I have already noted, the inadequacies in the charge to the jury cannot be called “harmless” or “minor” errors. Thus, the question in this case must be whether the evidence against Earhart is so overwhelming that there is no realistic possibility that a new trial would produce a different verdict.

[127] LeBel J. described errors falling into the second category as follows, in para. 36:

An appellate court can also uphold a conviction under s. 686(1)(b)(iii) in the event of an error that was not minor and that cannot be said to have caused no prejudice to the accused, if the case against the accused was so overwhelming that a reasonable and properly instructed jury would inevitably have convicted. ... The high standard of an invariable or inevitable conviction is understandable, given the difficult task for an appellate court of evaluating the strength of the Crown's case retroactively, without the benefit of hearing the witnesses' testimony and experiencing the trial as it unfolded. It is thus necessary to afford any possible measure of doubt concerning the strength of the Crown's case to the benefit of the accused person. The rationale for upholding a conviction in these circumstances is persuasive; in the words of Binnie J. in R. v. Jolivet, at para. 46:

Where the evidence against an accused is powerful and there is no realistic possibility that a new trial would produce a different verdict, it is manifestly in the public interest to avoid the cost and delay of further proceedings. Parliament has so provided.

[Emphasis in original, citations omitted.]

[128] Here, there was a considerable amount of evidence pointing to Earhart’s culpability as the person who killed Sullivan, including:

a) Jurevicius, who was at Sullivan’s house, testified that Earhart was armed with a knife, was angry and aggressive towards Sullivan;

b) Sullivan said he was going to see Earhart at the Burger King and he was last seen by his friends getting into Earhart’s car;

c) T.D., Kirk, B.K. and P.K. all testified that Earhart was angry, aggressive, and assaulted Sullivan the night of the murder;

d) Kirk testified that Earhart killed the victim by slashing his throat and stabbing him in the chest. The forensic evidence confirmed his testimony. Kirk described how they covered up the body;

e) T.D. and Kirk testified as to how they cleaned up after the murder;

f) B.K. testified that Earhart, after returning to her house without Sullivan, said that they had beaten up Sullivan and kept pacing and stating that they had to do it;

g) P.K. testified that after the murder, Earhart told him that he had hurt Sullivan “real bad”, threatening P.K. to keep silent;

h) B.K., P.K. and T.D. testified that Earhart had blood on him when he returned to the house;

i) Earhart, in an effort to cover his tracks, spoke to the people who saw him before the murder and told them different lies about where Sullivan was; and

j) most significant of all, T.D. testified that Earhart, after returning to B.K.’s house without Kirk, said that this was his “messiest kill yet”.

[129] While this amounts to overwhelming evidence that Earhart was involved in the death of Sullivan, it is only Kirk’s testimony that speaks to Earhart’s being the actual killer. This was eye witness testimony from a co-accused whose credibility was in question. It is therefore possible that a jury would choose not to believe his testimony, leaving the Crown unable to establish that Earhart killed Sullivan.

[130] However, even if the Crown could not establish Earhart’s guilt as a principal, the case remained overwhelming that he participated in the murder. The record is replete with evidence that Earhart was with Sullivan on the night in question, demonstrated animus toward him and abused him throughout the entire night. This evidence, together with the lack of any evidence Earhart was under duress leads inexorably to the conclusion that Earhart was necessarily either a principal or a party to Sullivan’s murder.

[131] The curative proviso does not require that any particular theory of liability be overwhelmingly established, only, in the words of LeBel J. that “a reasonable and properly instructed jury would inevitably have convicted”: see Van at para. 36; Pickton at para. 86.

[132] In this case, it would, in the words of LeBel J. in Pickton at para. 86, “surpass belief that a properly instructed jury would not have found [Earhart] guilty of murder in the presence of such cogent evidence of his involvement…” I therefore conclude that this is an appropriate case for the application of the curative proviso.

V. DISPOSITION

[133] For these reasons, I would dismiss the appeal.

“G.J. Epstein J.A.”

Simmons J.A.:

I. OVERVIEW

[134] I have had the benefit of reading the reasons of my colleague, Epstein J.A. Although I agree with my colleague’s conclusion that this appeal should be dismissed, I reach that conclusion for somewhat different reasons.

[135] Ronald Kirk and the appellant, Donald Earhart, were jointly charged with the first degree murder of Ronald Sullivan. Following a trial by judge and jury, Kirk was acquitted and Earhart was convicted of first degree murder.

[136] Kirk was permitted to lead bad character evidence at trial concerning Earhart’s disposition for violence. The main issues on appeal concern whether the trial judge erred in admitting the bad character evidence and whether he erred in his instructions to the jury with respect to the use they could make of the bad character evidence.

[137] My colleague has concluded that the bad character evidence was admissible in relation to only some of the issues about which the trial judge instructed the jury and that the trial judge made certain errors in his jury instructions. However, she would apply the proviso and dismiss the appeal because the evidence that Earhart participated in the first degree murder of Sullivan was overwhelming.

[138] In my opinion, the bad character evidence was admissible in relation to all of the issues about which the trial judge instructed the jury. Further, in my view, if the trial judge made any error in this case, it was in instructing the jury in a manner that was beneficial to Kirk. I am sceptical that any such error affected Earhart. In any event, if it did, I agree with my colleague’s conclusion that the evidence that Earhart participated in the murder of Sullivan was overwhelming and that a reasonable and properly instructed jury would inevitably have convicted Earhart of first degree murder.

II. FACTS

[139] As the relevant facts are fully set out in my colleague’s reasons, it is unnecessary that I repeat them here. For the purposes of these reasons, it will be sufficient to recall the following aspects of the evidence that was before the jury:

• Sullivan was last seen alive on October 15, 2004.

• The Crown adduced evidence at trial indicating that, during the early morning hours of October 15, 2004, Earhart, his cousin Kirk, and Earhart's girlfriend, T.D., drove around with Sullivan and that, as they did so, Earhart assaulted Sullivan repeatedly. Although Kirk participated in confining Sullivan to some extent, T.D.’s evidence was that Earhart was the primary aggressor and that Earhart was angry at Kirk as well as Sullivan. The group ended up at the home of a family member of Kirk, where Earhart again assaulted Sullivan repeatedly. Earhart and Kirk left the home with Sullivan in their car and returned about half an hour later without him. When they returned, both Earhart and Kirk had blood on their hands and on their clothing. After they returned, Earhart told T.D. that this was his messiest kill yet. Kirk made a gesture towards his neck and a gurgling sound, which T.D. took as meaning that Earhart stabbed Sullivan in the neck. Sullivan's body was found on April 26, 2005, in a wooded lot about a five-minute drive from the family member’s house. Although the medical evidence was not entirely conclusive, it appeared that Sullivan had been stabbed in the throat and torso a number of times.

• Kirk was permitted to introduce bad character evidence at trial concerning Earhart’s propensity for violence. Such evidence included the testimony of T.D. and another woman, Krista Jurevicius, to the effect that Earhart told each of them that he had killed before.

• Kirk testified at trial, while Earhart did not.

• Kirk gave the only eyewitness evidence concerning the murder. He testified to the effect that it was Earhart who killed Sullivan by stabbing him in the neck and chest or stomach area, that he did not know Earhart was planning to kill Sullivan, that he was afraid of Earhart, that he did not assist Earhart in killing Sullivan, and that anything he did do to assist Earhart was because of his fear of Earhart.

III. ANALYSIS

1) Was the Bad Character Evidence Admissible?

[140] As my colleague has explained, the question of the admissibility of bad character evidence in relation to Earhart arose following T.D.’s examination-in-chief. Kirk’s counsel sought permission to elicit bad character evidence and advanced three bases for its admission:

• given the potential inference that one or both of Earhart and Kirk must have killed Sullivan, to raise a reasonable doubt concerning whether Kirk was the person who killed Sullivan;

• if the jury was satisfied that Kirk participated in killing Sullivan, to raise a reasonable doubt concerning whether Kirk was acting under duress;

• to support T.D.’s credibility by demonstrating that inconsistencies in her statements to the police were due to her fear of Earhart.

[141] Earhart’s trial counsel did not object to the proposed evidence to the extent that it related to specific events tending to show Earhart’s propensity for violence or his bad character. She was, however, concerned that more general evidence of bad character, rooted in rumours in the community about Earhart’s reputation, should not be admitted.

[142] The trial judge was familiar with this court’s decision in R. v. Pollock (2004), 187 C.C.C. (3d) 213, and its authoritative guidance on the admissibility of bad character evidence tendered by an accused against a co-accused. He agreed with counsel that bad character evidence relating to specific events was admissible for the purposes identified and that open-ended questions regarding rumours in the community about Earhart's general reputation should not be permitted. Apart from a couple of isolated instances in which the trial judge excluded reputation evidence and hearsay, all of the bad character evidence was admitted without further argument or discussion.

[143] During the pre-charge conference, the trial Crown advised that it was his position that there was one principal offender, given that there was no evidence that the two accused acted together to kill Sullivan. He also indicated that he was not taking the position that Kirk was guilty as the person who actually killed Sullivan. Rather, it was the Crown’s position that Kirk aided Earhart in killing Sullivan, and that his liability for first degree murder was as a party rather than as a perpetrator.

[144] On appeal, Earhart argues for the first time that once the trial Crown took the position that Kirk was not liable for first degree murder as the perpetrator, but only as a party, the bad character evidence was no longer admissible and the trial judge should have instructed the jury that such evidence was not available for their consideration.

[145] Like my colleague, I would reject this submission.[1] However, I do not agree with her conclusion that the trial judge erred in instructing the jury that Kirk was potentially liable as a principal and that the bad character evidence was available for consideration in relation to that issue.

[146] Where an accused seeks to introduce bad character evidence against a co-accused, the test for admissibility is whether the prejudicial effect of the evidence substantially outweighs its probative value: Pollock, at para. 110. Although in this case, aspects of the bad character evidence had significant potential prejudicial effect, the bad character evidence retained high potential probative value for Kirk’s defence despite the Crown’s change in position.

[147] Assuming for the moment that the only route to a guilty verdict against Kirk was as a party, Kirk was entitled to rely on the bad character evidence to support his defence that Earhart was the killer and that he acted alone. The bad character evidence also remained relevant to raise a reasonable doubt concerning whether Kirk participated in the offence under duress and to support T.D.’s credibility. The bad character evidence had significant potential probative value for all of these purposes.

[148] In support of the position that Kirk aided Earhart in killing Sullivan, the Crown relied on evidence indicating that:

• Kirk participated in confining Sullivan over the course of the evening;

• while at the family member’s home, Kirk made a comment to the effect that people would be after him and Earhart if they did not rough up Sullivan;

• before driving off with Earhart and Sullivan, Kirk said he and Earhart had “to do this” or there would be consequences for them and their families;

• Kirk was present at the scene of Sullivan’s murder; and

• on Kirk’s own admission, just before Earhart stabbed Sullivan, Kirk was standing behind the car, about 20 feet away from Earhart and Sullivan, and he was holding a gun.

As I have said, there was also evidence before the jury that Kirk had blood on his hands and on his clothing when he returned to his family member’s home from the murder scene.

[149] In the face of this evidence, the bad character evidence concerning Earhart’s disposition for violence was essential to Kirk's ability to make full answer and defence because it supported the credibility of his assertions that Earhart acted alone in killing Sullivan and that, to the extent that Kirk participated in the events, he did so under duress.

[150] The bad character evidence was also important to Kirk for the purpose of supporting T.D.’s credibility. T.D.’s evidence was significant to Kirk because it supported his testimony that it was Earhart who was the aggressor over the course of the evening and that Earhart's threatening actions were directed at both Sullivan and Kirk. The bad character evidence concerning Earhart’s conduct towards T.D. and her son provided an explanation concerning T.D.’s inconsistent statements to the police. In addition, Jurevicius’s evidence supported the likelihood that Earhart told T.D. that he had killed before.

[151] Further, in my opinion, even though the trial Crown was no longer taking the position that Kirk was a principal in Sullivan’s murder, liability as a perpetrator remained a viable route to first degree murder vis-à-vis Kirk.

[152] If the jury rejected Kirk’s evidence concerning what happened at the murder scene but accepted, at least in general terms, the evidence favouring the Crown concerning the events leading up to Kirk and Earhart’s departure with Sullivan from the family member’s home, an inference remained that either Earhart or Kirk killed Sullivan.

[153] Further, if the jury rejected the evidence of the Crown witnesses and Kirk concerning Earhart’s involvement in Sullivan’s death but accepted Kirk’s admission that he was at the scene and knew how Sullivan was killed, it would have been open to the jury to draw an inference that Kirk was the killer.

[154] Moreover, the fact that the Crown was not advancing the position that Kirk was a perpetrator did not render that route to Kirk’s liability unavailable: see R. v. Pickton, 2010 SCC 32, at para. 27.

[155] Accordingly, despite the Crown’s change in its theory of Kirk’s liability, in my view, the bad character evidence remained relevant to the issue of whether there was a reasonable doubt that Kirk acted as a perpetrator in killing Sullivan.

[156] In the result, although for somewhat different reasons, I agree with my colleague’s conclusion that the bad character evidence was properly admitted and I would not give effect to this ground of appeal.

2) Did the Trial Judge Err in his Instructions to the Jury concerning the Bad Character Evidence?

[157] Earhart submits that there was no live issue at the trial concerning whether, as between Earhart and Kirk, Kirk was the likely killer. Accordingly, the trial judge’s instruction concerning the use the jury could make of the bad character evidence to address that issue would have been confusing. Moreover, the trial judge’s specific instruction that the jury could use the bad character evidence to determine who, as between the two men, was the likely attacker was wrong in law and could have led the jury into misusing the bad character evidence to find Earhart guilty.

[158] In addition, Earhart contends that the trial judge erred in his instructions to the jury concerning the use of the bad character evidence in relation to duress. Finally, he submits that the trial judge erred in failing to give adequate instructions concerning the use that could be made of the bad character evidence.

i) Whether the Trial Judge Erred in His Suzack Instruction

[159] Near the end of the general part of his charge to the jury, and before turning to the definition of murder, the trial judge gave a Suzack instruction: see R. v. Suzack (2000), 141 C.C.C. (3d) 449 (Ont. C.A.), application for leave to appeal to the Supreme Court of Canada dismissed, [2000] S.C.C.A. No. 583. This instruction explained to the jury one of the reasons why the evidence concerning Earhart’s propensity for violence was admitted – to enable Kirk to raise a reasonable doubt about whether he participated in the murder. The instruction also explained to the jury that while such evidence could be used for that purpose, it could not be used to support an inference that Earhart was the killer. In the words of the trial judge:

At times, someone charged with a crime will say, it was not me, it was the other person charged who committed the crime. And, he or she may point to evidence which may point to the other person as the sort of person to commit the offence charged.

In this case, you have heard evidence with respect to Mr. Earhart’s disposition or propensity for violence so I want to instruct you specifically on how you can use this evidence in considering the case of Mr. Kirk and how you must not use the evidence in considering the case of Mr. Earhart.

Firstly, the use to which Mr. Kirk may make of such evidence:

Such evidence may assist you in deciding whether the Crown has proven its case against Mr. Kirk. So you may take such evidence into account in deciding whether Mr. Kirk committed the offence, because Mr. Earhart's propensity to commit the offence charged may raise a reasonable doubt that Mr. Kirk committed the offence or convince you that he was not involved. So it is really nothing more than a piece of circumstantial evidence which may form the basis of a finding that he did not commit the offence charged or that there is a reasonable doubt that Mr. Kirk committed the crime charged.

Secondly, the use to which such evidence must not be put in considering the case of Mr. Earhart:

You must not use such evidence to decide that Mr. Earhart committed the offence of murder because he is the sort of person who would likely do so.

It is a fundamental rule of our criminal justice system that criminal responsibility depends on the Crown's ability to prove beyond a reasonable doubt that the accused committed the act of murder set out in the indictment. Mr. Earhart is not on trial for past misconduct or misconduct which followed the alleged event. He is being tried only for the events of October 14th and 15th.

So, to summarize, you may use, the evidence of Mr. Earhart’s propensity for violence to help you decide that in fact, Mr. Kirk did not commit the offence or there must be in your minds, is the position of Mr. Kirk, reasonable doubt that Mr. Kirk committed the offence of murder or helped in its commission. You must not use this evidence, however, as I said to help you decide that Mr. Earhart committed the offence charged.

[160] After summarizing some of the bad character evidence, the trial judge then turned to the definition of murder. As part of those instructions, the trial judge provided the jury with two decision trees, one for the route to liability as a perpetrator and, if the jury decided that one of the two accused was the perpetrator, a second decision tree for a party to the offence.

[161] Concerning the perpetrator decision tree, the trial judge instructed the jury that the first question was: “did Mr. Earhart or Mr. Kirk, by an unlawful act, cause the death of Ronald Sullivan?”

[162] After explaining what is meant by an unlawful act, the trial judge turned to the issue of identity. First he summarized the positions of the parties as follows: the Crown and Kirk both took the position that Earhart was the attacker; Earhart’s position was that the Crown witnesses were liars or unreliable and that the Crown had not proved its case against him beyond a reasonable doubt.

[163] The trial judge next reviewed the evidence relevant to the question of identity. As part of that review, he referred to the evidence of Earhart’s disposition for violence:

There is evidence in this case of Donald Earhart's disposition to violence.

There is an absence of such evidence in Mr. Kirk. As I have instructed you over the use of such evidence it may be used to decide as between the two men, who is more likely to have attacked Ronald Sullivan. [Emphasis added.]

[164] The trial judge then explained the questions posed on the perpetrator decision tree. After dealing with the remaining issues, he gave the jury a W.D. instruction concerning Kirk’s liability as perpetrator:

If you accept Mr. Kirk's evidence — if you accept his evidence — Mr. Kirk's evidence that he did not kill Mr. Sullivan or on the bases of his denial and the other evidence that you have heard in this case, you are left with a reasonable doubt that he was the perpetrator, or the killer, then you must find that Ronald Kirk’s only involvement, if there is any, may be as a party to the offence of murder and not as a perpetrator or principal.

[165] Next, the trial judge turned to the party decision tree. At the beginning of those instructions, he said:

Now, the focus of my charge here will be on Mr. Kirk. I do that for a couple of reasons. One, it is not the position of the Crown that Mr. Kirk was the killer. The Crown agrees that if Mr. Kirk is involved, he is involved as a party to the offence as an “aider”. ... Two, I think it is fair to say in this case that all the evidence points away from Mr. Kirk as the killer or the principal. If Mr. Kirk is guilty of any criminal offence in this case, it may only be, on the basis of the evidence that we have heard, as a party to the offence.

[166] On the question of aiding, the trial judge told the jury that “the only evidence with respect to any act of assistance by Mr. Kirk is his evidence of what happened [at the woodlot]”. Further, he said, “from my memory, there was no evidence that Mr. Kirk displayed that gun – showed it to anybody – showed it to, for example, Sullivan, once out of the car.”

[167] Later, when dealing with a question of whether Kirk aided Earhart in Sullivan’s murder in the aggravating circumstances of a confinement, so as to be guilty of first degree murder, the trial judge said he could think of no evidence that “Mr. Kirk by a physical act became an essential, substantial or integral part of the knife attack and so Mr. Sullivan’s death”.

[168] Earhart contends that the Suzack instruction was confusing because it related to the issue of whether Kirk was the perpetrator; however, that was not a live issue at the trial. Neither the Crown nor Earhart took the position that Kirk was the perpetrator and the trial judge reminded the jury of that. Further, according to Earhart, the trial judge’s specific instruction that the bad character evidence could be used to determine who, as between the two men, was the likely attacker was wrong in law and may have caused the jury to misuse the bad character evidence to find Earhart guilty.

[169] I am not persuaded that the jury would have found the trial judge’s instruction confusing for the reason advanced by Earhart. The trial judge explained at the outset of the Suzack instruction that the basis for admitting bad character evidence was that, on some occasions, a person charged with a crime will point at another person charged as having committed the crime and, in doing so, will rely on evidence that may demonstrate that the other person is the type of person to commit the offence. That was Kirk’s position here.

[170] Moreover, as part of the Suzack instruction, the trial judge told the jury that “Mr. Earhart’s propensity to commit the offence charged may raise a reasonable doubt that Mr. Kirk committed the offence or convince you that he was not involved.” The trial judge instructed the jury to consider Kirk’s potential liability as a perpetrator as well as his potential liability as a party. Having regard to the instructions to consider Kirk’s liability as both a perpetrator and a party, I fail to see how the jury would have been confused by the Suzack instruction.

[171] Concerning the trial judge’s specific instruction when reviewing the evidence relevant to the issue of identity that the bad character evidence “may be used to decide as between the two men, who is more likely to have attacked Ronald Sullivan”, it would have been obvious to the jury that that instruction was a short way of referring the jury back to the trial judge’s earlier, more specific instruction concerning how the jury could, and could not, use the bad character evidence. Accordingly, I am not persuaded that this instruction constituted an error in law.

[172] That said, it seems to me that considered as a whole, the trial judge’s instructions were favourable to Kirk because, on a practical basis, they left no evidentiary route to a finding of guilt against Kirk. Earhart’s main complaint is that the bad character evidence was legally irrelevant. As I read the charge, the trial judge’s instructions may have made the bad character evidence irrelevant from a practical standpoint, but, as I will explain, the instructions did not constitute an error of law in relation to Earhart.

[173] Although the trial judge left Kirk’s potential liability as a perpetrator with the jury, he did not identify the evidentiary route that could give rise to Kirk’s guilt as a perpetrator if the jury rejected Kirk’s evidence. Nor did he review the evidence that could have supported such a finding. Perhaps more importantly, he expressed his opinion that the evidence pointed away from Kirk as the perpetrator and that the only route to Kirk’s guilt was as a party.

[174] Similarly, concerning Kirk’s potential liability as a party, the trial judge did not summarize the evidence the Crown relied on as supporting Kirk’s liability as a party and effectively told the jury there was no evidence capable of supporting such a finding. Significantly, except when he gave the Suzack instruction set out at para. 26 above, the trial judge did not refer to the bad character evidence as being relevant to the question of whether Kirk performed some act that amounted to aiding Earhart.

[175] I am sceptical that the trial judge’s favourable instructions in relation to Kirk amount to legal error vis-à-vis Earhart. To some extent, the trial judge’s favourable instructions in relation to Kirk may have detracted from Earhart’s assertion that none of the Crown witnesses were credible or reliable. However, the trial judge was entitled to express his opinion on the evidence so long as he made it clear to the jury, which he did, that they were free to disregard his opinion. The trial judge’s instructions that the jury was obliged to acquit Earhart if they had a reasonable doubt about his participation in Sullivan’s death were crystal clear.

[176] In the pre-charge conference, the trial judge explained that he thought it necessary to leave Kirk as perpetrator with the jury because Earhart’s position raised that issue. Earhart’s trial counsel confirmed that was an issue. Having decided to leave the issue with the jury, the trial judge effectively took it away. If this constitutes legal error vis-à-vis Earhart, I would apply the proviso and dismiss the appeal.

[177] As I have explained, in my opinion, Kirk as perpetrator remained an available route to Kirk’s liability despite the Crown’s change of position. Had the jury been properly instructed on the available routes to Kirk’s liability, I agree with my colleague’s conclusion that the case against Earhart was overwhelming for the reasons she identified and that the jury would have inevitably returned a verdict of first degree murder against him.

ii) Whether the Trial Judge Erred in his Instructions Concerning the Use of the Bad Character Evidence in Relation to Duress

[178] Earhart submits that since Kirk did not have personal knowledge of all of the evidence relating to Earhart’s disposition for violence, the trial judge erred in leaving such evidence with the jury because it was not relevant to the issue of duress.

[179] I would not accept this submission. The bad character evidence was relevant to Kirk’s defence of duress in two ways: first, matters Kirk was aware of were relevant to enable the jury to evaluate Kirk’s state of mind; and second, in the context of raising a reasonable doubt about Kirk’s liability, to demonstrate the likelihood that Earhart acted in the manner that Kirk described: see, for example, R. v. Pilon (2009), 2009 ONCA 248, 243 C.C.C. (3d) 109 (Ont. C.A.), at paras. 32–33. Although the trial judge did not give the jury specific instructions concerning this second use, in my view, that omission could only have inured to Earhart’s benefit.

iii) The Adequacy of the Trial Judge’s Instructions Concerning the Bad Character Evidence

[180] Earhart contends that the trial judge erred by failing to instruct the jury about how to approach the evidence of T.D. and Jurevicius concerning his statements that he had killed before. He complains that it was never made clear to the jury that the statements may have been nothing more than boasting.

[181] I would not accept this submission. It would have been obvious to the jury that they could interpret Earhart’s statements that he had killed before as merely boasts. In any event, to the extent that this particular interpretation was significant, it was a factual issue that could have been addressed by counsel through cross-examination or in the closing address.

[182] Finally, I am not persuaded that Earhart was prejudiced in any way by the trial judge’s failure to give the jury more complete instructions concerning the use they could make of the bad character evidence in relation to the issues of T.D’s credibility and duress. The trial judge gave the jury a Suzack instruction, which made it clear that the jury could use the bad character evidence in assessing Kirk’s liability for the offence as a perpetrator or a party. The trial judge’s failure to give more complete instructions on other potential uses that the jury could make of the bad character evidence against Earhart could only have inured to Earhart’s benefit.

IV. DISPOSITION

[183] Based on the foregoing reasons, I would dismiss the appeal.

RELEASED:

“DEC 20 2010”

“JS” “Janet Simmons J.A.”

“I agree K. Feldman J.A.”

[1] At para. 7 of her reasons, my colleague identifies the nine areas of bad character evidence to which Earhart objects. However, in conducting her analysis my colleague focuses on the evidence of T.D. and Jurevicius to the effect that Earhart told each of them he had killed before. I agree that this evidence should be the focus of the admissibility analysis because it carried the most significant potential for prejudice. As for the balance of the evidence to which Earhart objects, some of it was led by his own counsel and some of it did not amount to bad character evidence as against Earhart. Other aspects of the bad character evidence (for example, evidence that he beat T.D. repeatedly) were properly before the jury, as will be explained in these reasons, as being relevant to T.D.’s credibility or Kirk’s defence of duress. Other portions were admissible as part of the narrative concerning the events of October 14 and 15, 2002 or as being relevant to the issue of whether Earhart had a knife. In essence, I have accepted the Crown’s arguments concerning the balance of the evidence to which Earhart objects.