Her Majesty the Queen v. Rohan Ranger, 2011 ONCA 311

CITATION: R. v. Ranger, 2011 ONCA 311

DATE: 20110420

DOCKET: C45555

COURT OF APPEAL FOR ONTARIO

Moldaver, Simmons and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rohan Ranger

Appellant

James Lockyer and Brian Snell, for the appellant

Brian McNeely, for the respondent

Heard: March 28 and 29, 2011

On appeal from conviction by Justice Edward Then of the Superior Court of Justice, sitting with a jury, dated August 10, 2005.

By the Court:

[1] This appeal comes to us sixteen years after Marsha and Tammy Ottey were killed and six years after the appellant’s second trial at which he was convicted of first degree murder in relation to the death of Marsha and manslaughter in relation to the death of Tammy.

[2] The appellant appeals against these convictions. He does not suggest that the verdict is unreasonable. Rather, he seeks a new trial based on errors he alleges the trial judge committed. He raises numerous grounds of appeal, some relating to evidentiary rulings, others to the trial judge’s instructions to the jury.

[3] We have considered the various grounds of appeal, both individually and collectively, and conclude that they do not leave us concerned about the integrity of the jury’s verdict. Apart from a minor instance, which we consider to be inconsequential, the trial judge made no errors of fact or law in his evidentiary rulings and he provided the jury with correct legal instructions.

[4] Nor in our view does this case raise the spectre of a miscarriage of justice. The trial was fair, the appellant was ably defended by experienced defence counsel, the charge to the jury was even-handed and the jury’s verdict is amply supported by the evidence.

OVERVIEW OF THE FACTS[^1]

[5] On August 16, 1995, Marsha Ottey and her sister Tammy Ottey were killed. Marsha was 19 years old at the time and Tammy was 16. They were both living at home with their mother in Scarborough.

[6] Marsha was a gifted athlete and had won a full track and field scholarship to attend Arkansas State University. She was scheduled to leave for university two days after she was killed. Tammy was a high school student and was working during her summer vacation.

[7] Avis Ottey, the mother of Marsha and Tammy, left for work at about 7:00 a.m. on August 16, 1995. Marsha and Tammy were both at home at the time she left. Tammy was getting ready to go to work herself. Marsha had finished working for the summer and was making final preparations to leave for Arkansas. She was still in bed when her mother left for work.

[8] Mrs. Ottey returned home later in the day, between 5:15 and 5:20 p.m. Once inside, she immediately noticed that the furnishings were in a state of disarray and that something appeared to be wrong. She went to the basement, where she saw Marsha lying on the floor. She tried to call 911, but could not get a dial tone. She then ran to a neighbour’s house to obtain assistance and directed her neighbour to the basement of her home, where the neighbour discovered the dead bodies of Marsha and Tammy.

[9] Emergency crews arrived shortly after. Marsha was found partially clothed, lying on her stomach. Tammy was found fully clothed, lying on her side. Both sisters had been stabbed and were covered in blood. Autopsies revealed the cause of death for both young women as multiple cut and stab wounds to their neck and chest areas. Although the house appeared to have been ransacked, nothing was taken other than three items: a gold necklace given to Marsha by the appellant which she always wore; Marsha’s electronic organizer; and possibly a video of Marsha playing soccer (although Mrs. Ottey did not discover that the video was missing until much later, and the issue of whether or not it was taken the day of the murders was disputed at trial).

[10] The appellant became an immediate suspect in the police investigation into these deaths because of his relationship with Marsha. He and Marsha had met in high school in 1990. They began dating in 1991 and were involved in a romantic relationship for about three years. Marsha ended this relationship in the summer of 1994. It was the Crown's position at trial that the appellant never accepted that his relationship with Marsha was over and that he relentlessly stalked and harassed her. According to the Crown, the appellant decided that if Marsha was going to go to the United States and he couldn't have her, then no one would. He was said to have enlisted his cousin, Adrian Kinkead, to help him kill Marsha.

[11] It was the theory of the Crown that on two mornings immediately before the day of the homicides, the appellant stood in the walkway across from the Ottey home staking out the early morning activities at the home. On the morning of the homicides, the appellant and Kinkead returned to the Ottey home. Kinkead intercepted Tammy as she walked towards her bus and forced her to return to the Ottey house. The appellant remained in the walkway across the street until Kinkead and Tammy were inside, following which he also entered the house.

[12] The Crown called a number of people who lived near the Ottey’s in support of this theory. These witnesses testified about seeing a man in a walkway across the street from the Ottey home on the mornings preceding, or the morning of, August 16, 1995 and about seeing Tamara being led to her house by a man on the morning of August 16.

[13] One of these witnesses, Mr. Victor Lo, testified at the appellant’s second trial that on the morning before the murders, on his way to catch the 7:35 a.m. bus, he saw a black man crouching in the corner of the walkway. He further testified that on the morning of the murders, again while on his way to catch the 7:35 a.m. bus, he saw the same man in the walkway. The Crown was also permitted to lead Mr. Lo’s evidence from the 1996 preliminary inquiry that Kinkead was not the person he had seen in the walkway on the morning before and the morning of the homicides. This evidence is the subject of appeal and is described in more detail later.

[14] The police approached the appellant on August 18, 1995, two days after the homicides. The appellant provided the police with a statement and with the clothes that he had been wearing on the day of the homicides. The appellant was placed under 24-hour surveillance. During the subsequent investigation, no forensic evidence was found to link the appellant to the crime scene. The investigation continued for months without any arrest being made.

[15] In early January 1996, the police uncovered a central piece of evidence in the case. Concurrent with the Ottey murder investigation, the police were investigating the robbery and murder of a subway attendant as well as two aggravated sexual assaults that occurred in September and October 1995. Kinkead was a suspect in these investigations. During their investigation into these other crimes, the police discovered that Kinkead’s DNA profile match a DNA profile found under one of Marsha’s fingernails. The police arrested Kinkead in February 1996 and charged him with the murders of Marsha and Tammy, as well as with the murder of the subway attendant and the two aggravated sexual assaults. In February 1996, the appellant was arrested and also charged with the murders of the Ottey sisters.

[16] The appellant and Kinkead were tried separately and the appellant relied on the theory that Kinkead was the sole killer. The appellant did not testify. Both men were convicted at their first trials of first degree murder and manslaughter, and both appealed to this court. Kinkead’s appeal was denied, but the appellant’s appeal was allowed on the basis that, taken cumulatively, various errors by the trial judge had resulted in an unfair trial.

[17] At the second trial, the appellant again did not testify. He took the position that he was not involved in the homicides and that Kinkead acted alone in killing the Ottey sisters. The appellant was once again convicted of first degree murder in relation to the death of Marsha and manslaughter in relation to the death of Tammy. It is from those convictions that he appeals to this court.

GROUNDS OF APPEAL AND ANALYSIS

[18] The appellant raises six grounds of appeal as follows:

(1) The trial judge erred in several respects in his treatment of the evidence of Victor Lo.

(2) The trial judge failed to charge the jury on the defence theory concerning the use of Kinkead’s prior statements and evidence.

(3) The trial judge erred in excluding evidence that tended to show that Kinkead had a motive to kill the Ottey sisters.

(4) The trial judge erred in excluding evidence relevant to Kinkead’s pattern of behaviour.

(5) The trial judge erred in admitting unreliable hearsay.

(6) The trial judge erred in ruling that the Crown did not have to lead the appellant’s statement to the police during its case in-chief if it wished to use the statement during cross-examination for impeachment purposes.

Ground One: The Trial Judge’s Treatment of the Evidence of Victor Lo

[19] The appellant submits that the trial judge erred in three respects in relation to his treatment of the evidence of Mr. Lo:

i) The trial judge erred by admitting evidence of Mr. Lo’s testimony at the preliminary inquiry that Kinkead was not the man he saw in the walkway near the Ottey residence on the day of the murders.

ii) The trial judge erred in failing to hold a voir dire in which Mr. Lo could be questioned about the basis for that non-identification.

iii) The trial judge erred in failing to deal adequately with the frailties of Mr. Lo’s testimony as eyewitness evidence in his charge to the jury.

[20] For the reasons that follow, we would not give effect to these arguments. We first describe the nature of Mr. Lo’s evidence.

Background

[21] As previously noted, the Crown’s theory at trial was that on two mornings before the murder and on the morning of the murder, the appellant was standing in the walkway across from the Ottey home. Victor Lo lived near the Otteys. In September 1995, a month after the murders, the police showed Mr. Lo a photographic line-up consisting of 12 men. Mr. Lo said he was 80-90 percent certain that the appellant's photograph was a photograph of the man he had observed in the walkway across from the Ottey home on the morning before and the morning of the murders. He picked another man's photograph in the same line-up as the man he saw in the walkway with only 30 percent certainty.

[22] At the preliminary inquiry in December 1996, Mr. Lo made an in-court identification of the appellant as the man he had seen in the walkway on the morning before and the morning of the murders. He also indicated that Kinkead was not the man he saw in the walkway. When Mr. Lo made the in-court identification of the appellant and the non-identification of Kinkead, the two men were seated beside each other in the prisoners’ dock.

[23] At the appellant’s first trial, Mr. Lo testified that he saw the same man crouching in the walkway around 7:30 a.m. on August 15 and on August 16, 1995. However, he was not able to make an in-court identification of the appellant as the man he saw in the walkway.

[24] Prior to the commencement of the second trial, Crown counsel – for reasons that need not be discussed – undertook not to lead evidence of Mr. Lo’s identification of the appellant as part of its case. In the same undertaking, the Crown agreed not to lead evidence that Mr. Lo had identified the appellant from the photo line-up as the man in the walkway with 90 percent certainty.

[25] After the trial began, the Crown sought to introduce Mr. Lo’s evidence that Kinkead was not the man he had seen in the walkway on the morning before and the morning of the murders. Defence counsel objected to the Crown’s proposal and asked the trial judge to rule that this evidence was inadmissible on Seaboyer[^2] grounds, i.e., that its prejudicial effect outweighed its probative value.

[26] Defence counsel asserted that this evidence was of negligible probative value given the highly suggestive circumstances in which Mr. Lo excluded Kinkead as the man in the walkway. The appellant and Kinkead were sitting together in the prisoners’ dock and Mr. Lo had just identified the appellant as the man in the walkway, so it followed inevitably that he would say that Kinkead was not that man. Defence counsel also submitted that this evidence would be highly prejudicial because the jury would not be made aware of the suggestive circumstances in which Mr. Lo excluded Kinkead, due to the Crown’s undertaking not to call evidence of Mr. Lo’s positive identification of the appellant. Counsel complained that he would be “handcuffed” in his ability to reveal these circumstances, because doing so would require him to reveal that Mr. Lo identified the appellant at the preliminary inquiry as the man in the walkway.

The Trial Judge’s Ruling

[27] The trial judge allowed the Crown’s application to admit this aspect of Mr. Lo’s evidence. He rejected the defence argument that the proffered evidence was of negligible probative value. The trial judge pointed out that Mr. Lo’s identification of the appellant at the preliminary was not a mere in-dock identification, but was preceded by Mr. Lo’s photo line-up identification of the appellant with 80-90 percent accuracy. He also noted that Mr. Lo at the preliminary could have said that Kinkead was a possibility, as he did with a second photograph in the photo line-up, but he did not do so even though both the appellant and Kinkead are of the same basic height and build.

[28] The trial judge also rejected defence counsel’s submission that the evidence should be excluded because the defence would be “handcuffed” in trying to meet it. He pointed out that, although counsel faced a difficult strategic decision, it was still open to the defence to adduce Mr. Lo’s identification at the preliminary of the appellant, as well as his inability to do so at the first trial. In the trial judge’s view, the tactical conundrum faced by the defence was irrelevant to the determination of admissibility.

i) Did the trial judge err in admitting Mr. Lo’s evidence excluding Kinkead as the man in the walkway?

[29] As we understand the appellant’s submissions, there are two branches to his argument that the trial judge erred in admitting this evidence.

[30] The first branch of the argument arises out of the alleged link between Mr. Lo’s evidence at the preliminary inquiry that Kinkead was not the man he saw in the walkway and his evidence that the appellant was that man. Relying on the accepted principle that evidence of an in-dock identification of an accused, although prima facie admissible, is notoriously frail because of the inherently suggestive circumstances surrounding it, the appellant submits that Mr. Lo’s identification of the appellant as the man in the walkway was weak and would not have been admissible on Seaboyer grounds. Having identified the appellant as the man in the walkway at the preliminary hearing and in the earlier line-up procedure, the appellant says it followed inevitably that Mr. Lo would testify that Kinkead was not the man in the walkway. Accordingly, because the non-identification evidence was derivative of the identification evidence, it, too, ought not to have been admitted on Seaboyer grounds since it had negligible probative value independent of that identification. In addition, Mr. Lo’s exclusion of Kinkead was highly prejudicial to the appellant because the jury was not able to hear about the circumstances in which Mr. Lo positively identified him at the preliminary hearing, or about the line-up identification, given the Crown’s undertaking.

[31] The Seaboyer balancing of prejudicial effect and probative value is a delicate exercise particularly suited to the trial judge who is fully aware of the trial context and dynamics. Absent an error in law or principle, this court should not interfere. There was no such error here.

[32] We acknowledge that in disposing of the appellant’s first appeal to this court, Charron J.A. described Mr. Lo’s evidence identifying the appellant as the man he had seen in the walkway as “very weak”: Ranger, at para. 170. However, this description was at least partly because in Mr. Lo’s testimony at the first trial, he did not make an in-court identification of the appellant as the man he observed in the walkway. Whether he was unable to make the in-court identification, or – as the trial Crown submitted – unwilling to do so, was an open question at the first trial.

[33] The trial judge’s ruling indicates that he was alive to the defence submission that the non-identification evidence was of only slight probative value in the circumstances. We agree with the trial judge’s refusal to accept that submission. Mr. Lo’s identification of the appellant at the preliminary inquiry was not the particularly frail type of in-dock identification where a witness identifies the accused – often for the first time – while the accused is sitting alone in the dock and by means of a bare assertion uninformed by detail and unconfirmed by other evidence. Here, Mr. Lo had identified the appellant as the man in the walkway from an earlier line-up to an 80-90 percent certainty. At the preliminary hearing, he had to make a choice between the two young men of similar height and build in the prisoners’ dock, and he chose the appellant, free of any suggestion favouring that choice. Mr. Lo testified at the second trial that he had an opportunity to observe the person he saw in the walkway at close quarters twice, and that he had concentrated on the facial features when doing so. Although Mr. Lo was not asked to identify either the appellant or Kinkead at this trial, in our view, his evidence carried sufficient weight to be admissible.

[34] The trial judge’s ruling indicates that he was also sensitive to the defence submission that admitting the evidence excluding Kinkead would be unfair to the appellant because he would be “handcuffed” in meeting it, since to do so, he would inevitably have to reveal that Mr. Lo had identified the appellant as the man in the walkway at the preliminary hearing.

[35] The trial judge properly recognized that the tactical conundrum, which was created by defence counsel having extracted the Crown undertaking referred to above, was not a recognized form of prejudice under Seaboyer. He said:

In my view, this submission [the “handcuffed”/unfairness submission] cannot affect the admissibility of relevant evidence. It is open to [defence counsel] to adduce the evidence of Mr. Lo as to his identification of Mr. Ranger at the preliminary and his inability to do so at trial. While this may be a difficult strategic decision for the defence to make, that consideration is irrelevant, in my view, to the determination of the admissibility of the evidence of Mr. Lo that, at the preliminary inquiry, when given an opportunity to identify Mr. Kinkead as the person in the walkway at 7:35, he stated that Mr. Kinkead was not that person. In my view, the evidence of Mr. Lo is admissible.

[36] We conclude that it was open to the trial judge to reject the defence submissions regarding the prejudicial effect of this evidence.

[37] The second branch of the appellant’s argument is that the trial judge erred in law by taking into account the preliminary hearing identification of the appellant in arriving at his decision to admit Mr. Lo’s evidence excluding Kinkead. The appellant says that the trial judge ought not to have taken the identification evidence into account because the jury would not hear this evidence in light of the Crown’s undertaking not to lead it. According to the appellant, the trial judge, in exercising his Seaboyer discretion, ought not to have considered inadmissible evidence that the jury would not hear.

[38] The flaw in this argument is that the preliminary hearing evidence of identification was not determined to be inadmissible. The Crown had simply undertaken not to lead the evidence. The jury might well have still heard it, however, because it was open to the defence to choose to bring it out in order to try to expose the frailties of the evidence excluding Kinkead head on. For tactical reasons (and it was admittedly a difficult tactical decision), the defence opted not to do so and instead attempted to undermine the non-identification evidence alone.

[39] In the end, we are not persuaded that the trial judge made any error in taking the identification evidence into account in reaching his ruling on admissibility.

ii) Failure to Hold a Voir Dire

[40] The appellant further submits that the trial judge compounded his error in admitting Mr. Lo’s evidence by refusing to hold a voir dire during which Mr. Lo would be examined and cross-examined on his reasons for excluding Kinkead as the man in the walkway, apart from his previous line-up identification. As defence counsel put it at trial:

[Crown counsel], in his recitation of the examination [in-chief of Mr. Lo] he proposes, does not want to – does not intend to ask the question, what was different, and does not intend to ask the question, how did the man look in the witness box, what was he like, in order to make the comparison, which is the only basis on which this can have proper probative value.

... if this is a meaningful process of non-recognition, then it has to be made meaningful in legal terms. And the raw material to determine it and litigate it should be placed before the Court and not left to the vagaries and inevitable risks of counsel’s tactical decision-making.

[41] The Crown argues that defence counsel did not seek a voir dire during the Seaboyer motion, but only requested it after that motion was lost. The Crown submits that defence counsel had solid tactical reasons for remaining ignorant of the basis for Mr. Lo’s exclusion of Kinkead during the Seaboyer deliberations because that ignorance fed the defence position that the non-identification evidence was nothing more than the by-product of Mr. Lo’s identification of the appellant at the preliminary hearing. Having lost the Seaboyer motion, defence counsel then in effect sought disclosure and a “dry run” for his trial cross-examination of Mr. Lo by way of a voir dire. But the Crown had nothing to disclose because, given its undertaking and the issues surrounding it, and fearful of allegations of witness tampering, it had studiously avoided speaking with Mr. Lo in advance of his testimony. Moreover, the Crown argues, the defence was not entitled to a preview of Mr. Lo’s evidence in advance, or to have a “dry run” for cross-examination.

[42] The trial judge accepted the Crown’s position and refused to hold a voir dire. He ruled:

It is my view that, coupled with the Crown’s approach in instructing the witness, as well as the fact that the witness will be led through this area, that [defence counsel] is a very skilled advocate who has, in my view, demonstrated his ability to formulate his questions in a manner that will minimize any risk of receiving answers which the Crown has instructed the witness to avoid, and, accordingly, under those circumstances, I see no reason why there should be a departure from the usual practice in respect of cross-examination.

[43] At the same time, the trial judge observed that he thought Crown counsel understood that if there was disclosure to be made about the basis for Mr. Lo’s exclusion of Kinkead, it should be made.

[44] We see no error in the trial judge’s reasoning or in the way he crafted a resolution to the problem posed. There was nothing to prevent the defence from interviewing Mr. Lo “off stage” (as the Crown put it), if it wanted to, in order to determine what he would likely say. For the reasons outlined above, the Crown had nothing to disclose in that respect, since it had not itself interviewed the witness before the trial.

[45] The trial judge was entitled to conclude, as he did, that there was no reason why Mr. Lo’s cross-examination should not play out in the usual fashion without the advantage of a previous rehearsal. Again, the trial judge’s refusal to hold a voir dire in the circumstances was a discretionary ruling, and is entitled to considerable deference. We are not prepared to intervene. In so concluding, we note that defence counsel was able to conduct a meaningful cross-examination of Mr. Lo at the second trial. He elicited that Mr. Lo’s opinion at the preliminary excluding Kinkead was based on observations he made 16 months earlier and that he could not now point to any detail that would lead him to conclude that Kinkead was not the man he saw in the walkway.

iii) Did the Trial Judge Fail to Deal Adequately with the Frailties of Mr. Lo’s Evidence in the Charge to the Jury?

[46] The appellant also contends that the trial judge’s charge to the jury with respect to Mr. Lo’s evidence was inadequate in the circumstances. We do not accept this submission either.

[47] The trial judge properly instructed the jury that Mr. Lo’s “non-identification” of Kinkead was analogous to an eyewitness identification of a person and therefore called for the type of charge that is normally given in connection with the well-known frailties of that type of testimony.

[48] The appellant points out, however, that the trial judge failed to include in his instruction the customary caution that the jurors should not mistake the confidence and honesty of an eyewitness with the reliability of his or her testimony. In addition, he complains that the trial judge failed to give effect to defence counsel’s request at trial that he instruct the jury – in a Vetrovec way perhaps – that it would be “risky or dangerous” to rely on Mr. Lo’s exclusion of Kinkead as the person in the walkway on the morning of the murders.

[49] The appellant contends that two other features of the trial judge’s instruction also play into the analysis. The first is the trial judge’s direction that the jurors could consider Mr. Lo’s non-identification evidence when looking for corroboration of the testimony of Kinkead, a witness who was the subject of a very strong Vetrovec warning. The second is that the trial judge specifically drew the jurors’ attention at the end of his eyewitness testimony instructions to the fact that Mr. Lo was the only one of the walkway witnesses to have been “specifically focusing on the facial features of the man” and that “he related the time he saw this person in his statements to the police as 7:30, when events were fresh in his mind.” According to the appellant, the trial judge’s failure to caution the jurors that they should not confuse an eyewitness’s confidence and honesty with reliability, or to tell them it would be risky or dangerous to rely on Mr. Lo’s testimony, when combined with the two positive instructions outlined above, resulted in a fatally flawed “eyewitness testimony” charge.

[50] In our view, this argument cannot prevail. The two positive instructions were correctly given in the circumstances, and the two omissions are not fatal when the charge with respect to Mr. Lo’s evidence is read as a whole. While it may have been preferable for the trial judge to include the customary “confidence and honesty do not equal reliability” caution, we are satisfied that, after hearing the instructions in their entirety, the jurors would understand that a “non-identification” like Mr. Lo’s carried with it the same risks or dangers that characterize eyewitness identification evidence. The trial judge instructed the jury in relation to eyewitness testimony generally, that an honest witness may be mistaken and that seemingly honest eyewitness testimony has led to many miscarriages of justice in the past.

[51] Moreover, the trial judge specifically instructed the jury that they:

should be cautious in evaluating Mr. Lo’s statement that Kinkead was not the man he saw in the walkway, based on his observations of Kinkead at his preliminary hearing, because Mr. Lo’s opinion was based on his observations 16 months later, and because Mr. Lo cannot now point to any detail which would lead him to conclude that Kinkead was not the man he saw.

[52] In addition, as part of his overview of Mr. Lo’s testimony, the trial judge highlighted for the jurors’ attention the principal arguments advanced by the defence as to why they should not rely on Mr. Lo’s evidence, namely:

• There was a critical issue about the timing of Mr. Lo’s observations on the day of the murders. The defence contended that Mr. Lo was mistaken in testifying that he had taken the 7:35 bus that morning when he had probably taken the 7:20 bus. This timing meant that Mr. Lo in fact observed Kinkead in the walkway.
• Based on the defence view of the evidence of two other witnesses, Mr. Lo was arguably mistaken about seeing any man in the walkway on the day of the murders.
• It would make no sense for the appellant, who was known in the neighbourhood because he had been Marsha Ottey’s boyfriend for several years, to stand in the walkway where he could be easily identified.

[53] We are satisfied that in the light of these cautionary notes sounded by the trial judge in his instructions regarding Mr. Lo’s evidence, the trial judge was not also required to tell the jury that it was “risky or dangerous” to rely on it.

[54] Finally, we note that immediately after dealing with Mr. Lo’s evidence excluding Kinkead as the man in the walkway, the trial judge turned to the issue of the timing of his observations on the morning of the murders. He instructed the jury that they had to examine that evidence with great caution as well. He left it for the jury to determine whether the non-identification evidence, together with the timing evidence, carried sufficient weight to support a finding that the appellant was in the walkway on the morning of the homicides.

[55] We conclude, therefore, that the trial judge’s instruction to the jury on how they should assess the value of Mr. Lo’s evidence was sufficient in the circumstances.

Ground Two: Failure to Charge the Jury on the Defence Theory Concerning the Use of Kinkead’s Prior Statements and Evidence

[56] Following the trial judge’s instructions to the jury, defence counsel at trial objected to the failure of the trial judge to charge the jury on the defence theory that the evolution of Kinkead’s various statements to the police provided circumstantial evidence that Kinkead acted alone in murdering the Ottey sisters and could therefore support a finding that Kinkead’s initial statement to the police, in which he admitted the killings and said that he acted alone, was true.

[57] The trial judge declined to re-charge the jury. The appellant renews his objection on appeal.

[58] For the reasons that follow, we would not give effect to this ground of appeal.

Background – Kinkead’s Prior Statements and Evidence

[59] Toronto Police Service officers arrested Kinkead in Miami on February 17, 1996. They informed him that he was being charged with the August 16, 1995 murders of the Ottey sisters and three other crimes – the robbery-murder of the subway attendant and the two aggravated sexual assaults, all of which occurred in September-October 1995.

[60] Following his arrest, Kinkead began to talk. Although he initially denied involvement in any of the crimes, after being confronted with DNA evidence linking him to the September-October 1995 crimes, he confessed to sole responsibility for those crimes as well as the Ottey murders.

[61] When asked, in Miami, if the appellant was with him when he committed the Ottey murders, Kinkead said the appellant was not. Rather, Kinkead said he abducted one of the sisters outside the house (he thought it was Marsha). On entering the home, he called the other sister downstairs and then stabbed both young women to death. Kinkead told the police that he stole a camera, a Walkman, and “other electronic shit” from the home. He said he later threw the knife he used in the murders in a river.

[62] Kinkead consented to his extradition and was soon on a flight back to Toronto. During the flight, he initiated a conversation with one of the police officers accompanying him, Detective Whitefield. He told Detective Whitefield: “This is off the record. I didn’t kill those girls … Off the record, it wasn’t me; it wasn’t Rohan either.”

[63] Following his return to Toronto, Kinkead gave a lengthy videotaped statement (508 pages of transcript) to the police on February 20, 1996 in which he claimed that a man named “Fuji” from the drug world was responsible for murdering the Ottey sisters.

[64] In the Fuji statement, Kinkead claimed that Fuji drove Kinkead to the Ottey home looking for the appellant. Once outside the home, Fuji grabbed one of the sisters and crouched beside her while the sister knocked on the door. Fuji and the sister he had accosted entered the home; Kinkead followed them in a few minutes later.

[65] Inside the home, Fuji was waving a gun around and demanding to know where the appellant was. Kinkead helped Fuji tie up the sisters and then the two men ransacked the home to make it look like a home invasion. While Kinkead was upstairs, Fuji murdered the sisters. In his statement, Kinkead claimed that he was unaware of Fuji’s intentions, that he played no role in the killings and that, after discovering the murders he fled the home in a state of shock.

[66] Kinkead completed the Fuji statement in the early morning hours of February 21, 1996. At about 2:50 a.m., he said to a Detective Wilson: “You guys want me to say it’s Rohan.” Detective Wilson responded: “If it’s the truth, I do.”

[67] A short time later, Kinkead spoke to his father, who arrived at the police station in the early morning hours with a tape recorder. According to Kinkead, before going on tape, his father told him the appellant was in Jamaica. In a recorded discussion, Kinkead told his father that the appellant had killed the Ottey sisters and that he (Kinkead) had lied to the police to cover up for his cousin. Kinkead told his father that he had tried to stop the murders and that he had fled to Miami at the appellant’s suggestion.

[68] Several hours after speaking to his father, Kinkead gave another videotaped statement to the police. In this statement, Kinkead told the police that the appellant phoned him at 6:30 a.m. on the day of the murders and subsequently picked him up at the Scarborough Town Centre. Ricardo Bernard was also in the car. The appellant drove to the vicinity of the Ottey home and parked the car on the street. When Tammy came out of the house, the appellant grabbed her and walked to the Otteys’ front door.

[69] Tammy knocked on the door while the appellant hid. When the door was opened, the appellant and Tammy went inside the house. After a while, Kinkead followed them in. He went downstairs and saw Tammy lying in a pool of blood. The appellant was astride Marsha, holding a knife, and yelling at her. Kinkead tried to intervene but the appellant was too strong for him. Kinkead ran out of the house, but then he and Bernard, who was waiting in the car, returned to the Ottey home. They found the appellant ransacking the house and Kinkead fled, leaving the other two in the house.

[70] Kinkead gave yet another version of events at the appellant’s first trial. Although the substance of his evidence remained relatively consistent at the appellant’s second trial, Kinkead acknowledged, at the second trial, that he had “sensationalized” his evidence at the appellant’s first trial because he was angry at him at the time.

[71] At the second trial, Kinkead testified that he and the appellant planned to surprise Marsha with a trip to Canada’s Wonderland on August 16, 1995 to celebrate her university scholarship. Kinkead claimed that he was involved in a sexual relationship with Tammy at the time and that she was in on the surprise. Tammy was to gain entry to the house while Kinkead and the appellant hid so their arrival would be a true surprise.

[72] Instead of picking Kinkead up as planned, the appellant telephoned Kinkead on the morning of August 16, 1995 and asked him to come to the Scarborough Town Centre. Ricardo Bernard was with the appellant when Kinkead arrived. They dropped Bernard off while en route to the Ottey home. Tammy was waiting for the two men at the street corner. The appellant told Kinkead to go with her while he went to get some money. Kinkead got out of the car and walked with Tammy to the Ottey home where Marsha let them in.

[73] Once inside, Kinkead and Tammy started kissing and “fooling around” on the main floor while Marsha went upstairs. The appellant arrived a short time later and went down to the basement with Marsha. Within minutes, Kinkead and Tammy heard loud arguing – they also heard something fall. They went downstairs, where Kinkead saw the appellant straddling Marsha as she lay on the ground. The appellant had a knife in his hand and was yelling angrily. Tammy fainted. Kinkead tried to pull the appellant off of Marsha but the appellant warned him off with his knife. Marsha tried to escape but the appellant hit her in the face and threatened to cut out her tongue.

[74] Kinkead left and walked around for 20 or 30 minutes in an effort to calm down. He tried to call the Ottey home but the line was busy. He received a page from the appellant who told him to relax. He returned to the house because he had forgotten his hat. The house was a mess. He saw Marsha and Tammy’s bodies in the basement. He left the house and went home.

The Defence Closing

[75] Defence counsel at the appellant’s second trial made a powerful closing argument to the jury that Kinkead’s claim that he confessed initially to protect the appellant had no credibility and that his subsequent statements implicating the appellant reflected an ongoing effort to undo the damage he had done to himself. Moreover, counsel contended that the evolution in Kinkead’s statements and evidence demonstrated that he was using his increasing knowledge of the Crown’s case, gained from disclosure and testimony at the preliminary inquiry, to tailor his statements and evidence, thereby enhancing the credibility of his claim that the appellant was the killer. (As a simple example, defence counsel asserted that Kinkead’s initial statements did not reflect an awareness that the appellant and Marsha had broken up, or that Marsha had obtained a scholarship to attend an American university.)

[76] Further, defence counsel argued that the contradictions and evolutions in Kinkead’s statements amounted to circumstantial evidence from which it could be inferred that Kinkead likely acted alone and that apparent Vetrovec “corroborations” provided by the evidence of other witnesses were, in fact, nothing more than modifications and changes manufactured by Kinkead as his knowledge of the case improved.

[77] So, for example, defence counsel suggested that, when confronted during his original Miami statement with the DNA evidence linking him to the September-October 1995 crimes, Kinkead initially tested the waters with the police to see if he could shift the blame to the appellant for those crimes by trying to suggest the appellant may have worn his clothes. This was hardly the conduct of a person acting out of loyalty to his cousin or faithfulness to the “code of the street” (as defence counsel put it). And, if Kinkead was not acting out of loyalty to the appellant when he confessed to killing the Ottey sisters on his own in his Miami statement, what did that say about his subsequent statements to the police?

[78] Further, defence counsel claimed that the evolution in matters such as Kinkead’s narration of Ricardo Bernard’s involvement, his portrayal at the first trial of the appellant as a jealous and obsessive boyfriend and his modification of his story to allow for the observations of Mr. Lo all pointed to Kinkead adapting his story that the appellant was the killer to fit with the evidence in the case as he came to understand it. Not only that, but the omission of such details from Kinkead’s earlier statements showed that he did not possess a credible story of the appellant as the killer when the earlier statements were made.

[79] Defence counsel also argued that Kinkead’s reference to the mysterious killer, Fuji, in his second statement to the police was in reality a reference to himself – as a fugitive. Moreover, parallels between Kinkead’s statements to the police – all of which portrayed the abductor as the killer – and Kinkead’s trial evidence – in which he acknowledged that it was he who took Tammy to the door – amounted to circumstantial evidence that Kinkead was the killer and that he acted alone.

The Trial Crown’s Objection to the Defence Closing

[80] During the course of defence counsel’s closing address, the trial Crown objected to defence counsel’s submissions to the jury, claiming that defence counsel was inviting the jury to use Kinkead’s unadopted prior statements for the truth of their contents.

[81] The trial judge responded that it was not entirely clear at that point how the jury was being asked to treat Kinkead’s statements. He said that defence counsel could carry on and that he [the trial judge] would do what he had to do to deal with it.

The Trial Judge’s Charge to the Jury

[82] In his charge to the jury, the trial judge gave a Vetrovec caution concerning Kinkead’s evidence. In particular, he instructed the jury that it would be “unsafe to act alone on the evidence of Kinkead, in the absence of confirmatory evidence from another witness or from the crime scene itself, to conclude beyond a reasonable doubt that the accused, Rohan Ranger, was in the Ottey home on Wednesday, August 16, 1995.” The trial judge referred to the evidence of Mr. Lo as a possible example of such confirmatory evidence.

[83] The trial judge also pointed out that both counsel had emphasized in their closing addresses the dangers associated with Kinkead’s evidence and even the Crown had acknowledged that the jury should not act on his evidence unless it was corroborated or confirmed by other testimony.

[84] The trial judge then turned to the subject of prior inconsistent statements. He gave a standard instruction indicating that while unadopted prior inconsistent statements could be used to discredit the testimony of a witness, they could not be used to prove the truth of the contents of the prior statement.

[85] As part of this instruction, the trial judge noted that Kinkead had made four prior statements to the police and that he testified at the appellant’s first trial. He pointed out that Kinkead had “admitted” that his first and second statements to the police, implicating himself and Fuji respectively, were untrue. Such statements could therefore be used only for the purpose of assessing Kinkead’s credibility.

[86] The trial judge also observed that while Kinkead had implicated the appellant in his third and fourth statements to the police, there were material differences between those statements and Kinkead’s trial testimony that could be used to assess Kinkead’s credibility. Finally, the trial judge noted that Kinkead acknowledged that he “may have placed undue emphasis on certain matters” at the appellant’s first trial, and reiterated that the jury could use differences in his testimony at the two trials to assess his credibility.

[87] Concerning the defence position in relation to Kinkead’s prior statements and evidence, the trial judge said this:

Now, Mr. Campbell spent a significant part of his address to you in developing the reasons for the inconsistencies between the first statement, or the Miami statement, and by attempting to demonstrate how the third and fourth statement implicating Mr. Ranger evolved as a result of the hole that Mr. Kinkead had dug for himself by confessing to be the sole killer of the Ottey sisters in the Miami statement.

Mr. Campbell submits that once the interest of the police in Mr. Ranger’s participation became clear to Mr. Kinkead, he falsified or fabricated the participation of Mr. Ranger on the basis of information which became available to him at the time of the third and fourth statement, and subsequently tailored his evidence implicating Mr. Ranger at the first trial to the information he received by way of disclosure and at the preliminary hearing.

If you accept Mr. Campbell’s analysis, you will, of course, have a powerful reason for rejecting the credibility of Mr. Kinkead at this trial implicating Mr. Ranger as a participant in the killing of the Ottey sisters.

However, as Mr. Kinkead has not adopted his Miami statement as true, you may not, as a matter of law, use the Miami statement as proof of the truth of its content, namely, his confession that he acted alone in killing the Ottey sisters. [Emphasis added.]

The Defence Objection to the Trial Judge’s Charge

[88] Defence counsel at trial objected to the manner in which the trial judge charged the jury on the defence theory concerning Kinkead’s prior statements and evidence. He noted that Kinkead had been put forward as a witness capable of being corroborated and submitted that there were two central features of the defence attack on Kinkead’s evidence: one, that Kinkead was not to be believed at all, whether corroborated or not; and two, that the history and sequence and contents of his statements showed him to be the killer and that he acted alone.

[89] Defence counsel claimed that the defence attack on Kinkead’s evidence did not violate the rule against using prior inconsistent statements to prove the truth of their contents. He outlined four areas in which the trial judge’s instructions failed to convey the defence theory adequately.

[90] First, the trial judge failed to refer to the defence arguments about the subtle meanings of Kinkead’s statements to the police and his evidence, and how collectively they could all be viewed as confessions – the Fuji as fugitive, namely Kinkead, argument relating to Kinkead’s second statement to the police – and the significance of the abductor as killer theme in all of his police statements, coupled with his testimonial acknowledgements that he was the abductor.

[91] Second, the trial judge failed to caution the jury adequately about the risk of relying on any evidence as corroborating Kinkead’s testimony where it was apparent that Kinkead was tailoring his version of the events to fit with the other evidence.

[92] Third, the trial judge failed to refer to the significance of various omissions from Kinkead’s earliest police statements as demonstrating that Kinkead did not have a viable story of the appellant as the killer when the earlier statements were made.

[93] Fourth, the trial judge failed to highlight three stages of the progression in Kinkead’s statements supporting the defence theory that his statements constituted circumstantial evidence that he was the killer and acted alone, namely:

• Kinkead’s airplane conversation with Detective Whitefield in which he began the process of attempting to extricate himself from his Miami statement;
• Kinkead’s February 21, 1996 conversation with Detective Wilson in which he effectively offered to make a statement implicating the appellant; and
• Kinkead’s subsequent tailoring of his statements to fit with his evolving knowledge of the evidence.

The Trial Judge’s Ruling on the Defence Objection

[94] The trial judge did not accede to the defence request that he re-charge the jury by summarizing the defence position in the manner requested.

[95] In essence, the trial judge concluded that aspects of the defence position violated the rule against using prior inconsistent statements for the truth of their content. Moreover, the defence assertion that the evolution of Kinkead’s statements constituted circumstantial evidence that he was the killer and that he acted alone was simply not correct.

[96] In declining to re-charge the jury, the trial judge said this:

Mr. Campbell submits that by his demonstrating how Kinkead’s version of events evolved as a result of pressure by the police to incriminate Mr. Ranger, and because of further information perhaps from the police and subsequently from the preliminary hearing and disclosure, and by drawing parallels, for example, from the second, or Fuji statement, and the fourth statement in which the killer [sic] and the murderer are the same person, he has demonstrated that Kinkead acted alone, which is essentially what Kinkead said in his first statement, or Miami statement, but which he has not adopted.

I do not agree, nor have I charged the jury in that way. The analysis posits that the Miami statement is true in its essential elements, that is, that Kinkead acted alone, otherwise the theory that the second, third and fourth statements were derived on the basis of further information made available to Kinkead as a result of police pressure to incriminate Mr. Ranger is not sustainable. While Kinkead has not adopted, for example, the truth of the statement that the abductor in Fuji and also in the fourth statement was also the murderer, Mr. Campbell nevertheless seeks to rely on those aspects of the statement and must invite the jury to accept them as true in order to sustain his position that Kinkead is acting alone.

Secondly, even if Mr. Campbell is successful in demonstrating that the evolution of the version of events beginning with the Miami statement to his evidence at this trial has resulted from police pressure to implicate Mr. Ranger, his interest to extricate himself, the tailoring of the statements and evidence to information obtained at the preliminary hearing and by way of disclosure does not, in my view, prove that he acted alone, but only proves, if the analysis is accepted, how he lied, and it is highly germane to his credibility at trial where he has sought to implicate Mr. Ranger. [Emphasis added.]

The Appellant’s Position on Appeal

[97] On appeal, the appellant reiterates the defence objection at trial to the jury charge. He claims that by failing to charge the jury in the manner requested, the trial judge deprived the appellant of the right to use Kinkead’s prior statements and evidence in a proper way – namely, as a piece of circumstantial evidence that demonstrated the truth of Kinkead’s Miami statement in which he admitted he killed the Ottey sisters and that he acted alone.

[98] This, says the appellant, was the only effective response to the presentation of Kinkead as a witness whose evidence was capable of being corroborated. Moreover, it was the only effective response to the repeated statements to the jury by both the trial judge and the Crown that the jury could not use Kinkead’s Miami confession to prove the truth of its contents.

[99] The appellant outlines the essential elements of what the trial judge should have told the jury about the defence position as follows:

• by examining Kinkead’s various statements and his evidence and bearing in mind the extraneous facts being made available to Kinkead as matters progressed, the jury could draw two conclusions:
  • first, Kinkead did not tell the truth before the jury – that was apparent from the manner and origins of the changes in his version of the events;
  • second, Kinkead did tell the truth in Miami. That was apparent because his Miami confession matched the known facts about the murders – and also because the changes in his story and how they came about demonstrated an attempt to undo the damage he did to himself in Miami and an effort to appear convincing as he did so.
• accordingly, while the jury could not use Kinkead’s Miami statement to prove the truth of its contents, the circumstantial evidence demonstrated that, in fact, the statement was true.

Discussion

[100] We do not accept the appellant’s submissions.

[101] In our view, the trial judge was correct in holding that certain aspects of the defence closing violated the rule against using unadopted prior inconsistent statements to prove the truth of their contents.

[102] Further, we agree with the trial judge’s conclusion that the fact that Kinkead may have tailored his evidence in the manner suggested by the defence did not assist in proving that he was the killer and that he acted alone. It only tended to prove “how he lied”, as the trial judge noted.

[103] Although the appellant claims that defence counsel’s closing submissions did not violate the rule against using unadopted prior inconsistent statements to prove the truth of their contents, all of defence counsel’s suggestions that Kinkead’s statements amounted to circumstantial evidence that Kinkead acted alone relied on the truth of a prior statement for their premise and therefore violated the rule. We give the following examples:

• the abductor as killer “theme” relied on the truth of Kinkead’s Miami statement that he was the abductor and that he killed the Ottey sisters acting alone;
• the “Kinkead as Fuji as killer” theory relied on the truth of the Fuji statement;
• the tailored evidence submission consisted of three parts: i) Kinkead was lying at trial when he claimed that he was motivated by a code of honour and a desire to protect the appellant in the Miami statement; ii) Kinkead changed his story and added details to fit with other evidence as he obtained disclosure and listened to evidence at the preliminary inquiry, and iii) Kinkead’s early statements lacked some of the details that emerged in later statements because Kinkead did not have a viable story of the appellant as the killer when the earlier statements were made.

To the extent that it is argued that parts i) and ii) of this submission support an inference that Kinkead acted alone in killing the Ottey sisters (in addition to the inference that Kinkead is a liar), the argument relies on an assumption that Kinkead’s Miami confession is true. Part iii) of this submission relies entirely on an assumption that the Miami confession is true and does not contemplate the possibility that Kinkead withheld matters within his knowledge in the earlier statements.

[104] Similarly, in the absence of an assumption that Kinkead’s Miami statement is true, the tailored evidence submission simply does not assist in proving that Kinkead acted alone in killing the Ottey sisters. On the contrary, it is equally consistent with a theory that the appellant and Kinkead acted in concert in killing the young women and that, after initially lying about the appellant’s involvement for whatever reason, Kinkead had a change of heart and tailored his evidence in an effort to minimize his own role and blame the appellant.

[105] In these circumstances, in our view, the trial judge was entirely correct in declining to instruct the jury on the defence theory that Kinkead’s statements could be used as circumstantial evidence that Kinkead acted alone and could therefore support a finding that the Miami statement was true.

[106] Further, while we consider that it would have been open to the trial judge to re-charge the jury to emphasize that they should be cautious in assessing Mr. Lo’s evidence, and, in particular, bear in mind the defence submission that Kinkead was tailoring his evidence to fit with Mr. Lo’s evidence, we are not persuaded that the trial judge erred in failing to do so.

[107] As we said above when addressing Mr. Lo’s evidence, the trial judge instructed the jury to be cautious before accepting his evidence about the identity of the person he saw in the walkway and about the timing of his observations. Also as we noted above, the trial judge told the jury that if they accepted the defence submission that Kinkead was tailoring his evidence, they would “have a powerful reason for rejecting the credibility of Kinkead at this trial implicating Mr. Ranger as a participant in the killing of the Ottey sisters.”

[108] In the face of these instructions, it could not have been lost on the jury that they should be cautious in assessing Mr. Lo’s evidence and bear in mind the defence submissions. At the end of the day, we are satisfied that the jury would have understood that they had to carefully consider whether Kinkead tailored his evidence before them.

[109] In this regard, we note as well that the jury demonstrated by the questions they posed during deliberations that they were alive to the central issue in the case, namely, whether the appellant was present in the Ottey home at the time of the murders, and that they understood that the evidence of Mr. Lo and other walkway witnesses was critical to evaluating this issue.

[110] For these reasons, we would not give effect to this ground of appeal.

Ground Three: The Trial Judge Erred in Excluding Evidence of Kinkead’s Motive

[111] The appellant contends that the trial judge erred by preventing him from adducing evidence from two witnesses, André Williams and M.S., which he says would have undermined the Crown’s suggestion that Kinkead had no motive of his own to murder the Ottey sisters.

André Williams

[112] The appellant submits that the trial judge erred in refusing to allow him to cross-examine Mr. Williams about a telephone conversation he had with Marsha Ottey in mid-June 1995, approximately two months before Marsha was murdered. In the conversation, which Mr. Williams reported to the police in September 1995 (some three weeks after the murder), he claimed that Marsha told him that Kinkead had become homosexual or bisexual, that he had developed an attraction to the appellant, and that he was jealous of her relationship with the appellant and had come to despise her. She further told Mr. Williams that when the appellant found out “about that”, he told Kinkead, who had been living with him, to leave. (According to the evidence, Kinkead and the appellant stopped living together in 1993, some two years before Marsha was murdered.)

[113] At the time of trial, Mr. Williams had no present recollection of the conversation in question. He maintained, however, that the content of his statement to the police in which he recounted the statement was accurate. He remembered being shocked by what Marsha had told him.

[114] The appellant sought to adduce Marsha’s conversation with Mr. Williams for the truth of its contents. Alternatively, he sought to introduce it for the fact that it had been said. According to the appellant, the conversation showed that Kinkead had a motive to kill Marsha and it supported his position that Kinkead acted alone in killing Marsha and Tammy Ottey.

[115] The trial judge refused the appellant’s request to adduce the conversation. In his view, the proposed evidence was not admissible for its truth “based on the principled approach” to the admission of hearsay evidence.

[116] In this regard, the trial judge found that “the criteria of necessity” had not been satisfied because it appeared “highly probable … on the record” that the appellant was “the source of the information Marsha conveyed to André Williams”. Hence, the appellant could “testify to this subject matter himself”. Moreover, if the appellant was the “source” of the information, it was not open to him to “elicit from a witness a statement [he] made out of court”. The trial judge was also concerned about the reliability of the contents of the conversation. In his view, “the information could have come to Marsha from any number of sources, including Ranger himself, Mr. Kinkead, rumours or even partially from the personal observations of Marsha”. And because the source of the information was “so speculative”, it did not pass the reliability threshold needed to warrant its admission as original evidence.

[117] Finally, the trial judge held that the proposed evidence was not admissible to “prove that the statements [had been] made” since in his view, the fact that they may have been made was “not relevant to the issues in this case”.

[118] In our view, the trial judge applied the correct legal principles to the facts as he found them. Given his findings of fact, which are supportable on the evidence, we are not persuaded that he erred in exercising his discretion as he did.

M.S.

[119] The appellant also sought to introduce the evidence of M.S., a woman whom he befriended while living with Kinkead in the early 1990s. M.S. was prepared to testify that Kinkead resented her relationship with the appellant and was jealous of it. On one occasion when she came to visit the appellant, Kinkead was home alone. According to M.S., he asked her why she had come to see the appellant and not him. He then held a sword to her throat and raped her.

[120] In refusing to allow the appellant to lead this evidence, the trial judge noted that the appellant wanted it before the jury to show that “Kinkead will become jealous, resentful and ultimately violently revengeful if a woman prefers Mr. Ranger over him, or if a woman interferes with the attention that Mr. Kinkead expects Mr. Ranger to pay to him.” The trial judge rejected the proposed evidence for several reasons.

[121] Fundamentally, he noted that there was no admissible evidence showing that Kinkead was jealous of the relationship between Marsha Ottey and the appellant. In this regard, he observed that during the height of their relationship in 1992 and 1993, there was no evidence of “any animosity, either attitudinal or physical, of Mr. Kinkead against Marsha”.

[122] Viewed in its totality, the trial judge was not persuaded “that the relationship between Mr. Kinkead, [Rohan Ranger] and [M.S.] ha[d] any similarity to the relationship between Mr. Kinkead, [Rohan Ranger] and Marsha Ottey”. At best, the link was “speculative and remote”. Hence, in the trial judge’s view, M.S.’s evidence was “irrelevant to any issue in the case”.

[123] We would not interfere with the trial judge’s ruling. It is largely fact-driven and we can find no errors in his analysis or conclusion. Indeed, we agree that the proposed evidence of this witness was irrelevant and would only have served as a distraction.

[124] Hence this ground of appeal fails.

Ground Four: The Trial Judge Erred in Excluding Evidence Related to Kinkead’s Pattern of Behaviour

[125] The defence at trial attempted to show that the murders reflected the pattern of crimes that Kinkead had committed. The Crown took the opposing view, arguing that the murders did not “bear his stamp”.

[126] One issue in this regard related to whether the items stolen from the Ottey home, particularly Marsha’s gold necklace, reflected Kinkead’s pattern of behaviour. The defence wanted to lead evidence from the owner of a Becker’s store, Sofyan Yacob, and the investigating officer, Detective Earl, that Kinkead had stolen a gold chain from the victim’s neck during a robbery he committed at the store.

[127] The defence also wanted to lead evidence from Kinkead’s girlfriend, M.D., to establish that the circumstances of the Ottey murders corresponded with Kinkead’s pattern of behaviour during other criminal assaults that he had committed before the murders.

[128] We deal with these two areas of proposed evidence in turn.

Evidence of Sofyan Yacob and Detective Earl

[129] At trial, the appellant sought to adduce evidence from Mr. Yacob and Detective Earl regarding a robbery that Kinkead was believed to have committed on May 26, 1993 at a Becker’s store where Mr. Yacob was working. Detective Earl was the officer in charge who arrested Kinkead in connection with the robbery.

[130] Kinkead denied committing the robbery and Mr. Yacob could not identify him. Although there was some circumstantial evidence implicating Kinkead as the robber, the charge against him was eventually withdrawn.

[131] In the course of the robbery, the robber snatched a gold chain from Mr. Yacob’s neck. According to the appellant, if the jury was satisfied that Kinkead stole Mr. Yacob’s gold chain, this would support his position that it was Kinkead, acting alone, who killed Marsha and stole her gold necklace, just as he had stolen Mr. Yacob’s gold chain.

[132] The trial judge refused to permit Mr. Yacob to testify. In his view, there was insufficient evidence to prove that Kinkead was the robber. Hence, he concluded that the proposed evidence had no probative value.

[133] In our view, it was open to the trial judge to reach that conclusion. Moreover, given that Kinkead disputed his involvement in the robbery, the trial judge was no doubt concerned about the time it would take to adduce the robbery evidence, as well as the risk that it could deflect the jury’s attention from its main task. In this regard, Mr. Yacob’s evidence aside, there was ample evidence that Kinkead had a penchant for gold. He admitted as much in his testimony and agreed that he had taken gold items from victims of other crimes.

[134] The problem with the appellant’s theory – which would have been obvious to the jury – was that the gold necklace Marsha was wearing was given to her by the appellant. As such, it would have had special meaning to him, not Kinkead. Moreover, as the Crown pointed out, other items of jewellery, including gold items, were left behind at the Ottey household. This too diminished the value of Mr. Yacob’s proposed evidence as it pointed away from Kinkead as the lone killer.

[135] In sum, taking all of these factors into account, we are not persuaded that the trial judge’s ruling was wrong or that it occasioned any prejudice to the appellant. Accordingly, this ground of appeal fails.

Evidence of M.D.

[136] As we have said, in September and October 1995, Kinkead went on a crime spree in which he sexually assaulted two women who were strangers to him and murdered a TTC collector during a robbery.

[137] At the appellant’s trial, Kinkead told the jury that he began this spree of violence, in part, because of the trauma he experienced from witnessing the appellant kill Marsha and Tammy Ottey.

[138] The appellant sought to rebut Kinkead’s explanation for his violent conduct which, if believed, directly implicated the appellant in the Ottey murders. To that end, he sought to adduce evidence from M.D., the mother of Kinkead’s child, who was prepared to state that several months before the Ottey murders, Kinkead brutally assaulted her.

[139] According to the appellant, M.D.’s evidence was admissible for two reasons. First, it put the lie to Kinkead’s explanation for the violence he exhibited in September and October 1995 and supported the appellant’s claim that the Ottey murders fit within Kinkead’s pre-existing pattern of violent conduct. Second, it lent support to the appellant’s contention that Kinkead was the lone killer and that his purpose in implicating the appellant in the Ottey murders was to reduce his personal level of culpability.

[140] The trial judge refused to admit M.D.’s evidence. In his view, “putting the lie to Mr. Kinkead’s justification for his criminal acts by adducing the evidence of [M.D.]” was not “relevant to the jury’s appreciation of the direct evidence that the [appellant] killed the Ottey sisters, except on the issue of general credibility.”

[141] In ruling as he did, the trial judge took into account the fact that Kinkead had consistently denied M.D.’s allegations and that allowing her to give the proposed evidence would “engage the jury essentially in a retrial of prior allegations against the accused [sic Kinkead] which she subsequently recanted.”

[142] We would not interfere with the trial judge’s ruling. The proposed evidence from M.D. amounted to an attack on the collateral issue of Kinkead’s explanation for having engaged in his crime spree in the months after the Ottey murders. Furthermore, we agree with the Crown’s submission that evidence from M.D. proving that the appellant’s presence at the murders could not have provided the trigger for Kinkead’s later criminality “would say nothing about whether the appellant was [in fact] present for the murders” (emphasis in original).

[143] Accordingly, this ground of appeal fails.

Ground Five: The Trial Judge Erred in Admitting Unreliable Hearsay Evidence

[144] The trial Crown applied to admit for the truth of their contents a number of hearsay statements made by Marsha Ottey in which she expressed fear of the appellant due to his jealousy and repeated threats of violence towards her. In the last 14 months of her life, Marsha related in separate conversations with five of her friends that the appellant had threatened her with a gun. The trial judge rejected the evidence of three of these witnesses, not because it was unreliable, but because he considered it to be imprecise and redundant. He took a different view with respect to the evidence of the remaining two witnesses, Paula Wade and Adrian Jordan, whom he permitted to testify.

[145] The appellant in his factum contends that the trial judge ought to have excluded the hearsay evidence of both Ms. Wade and Mr. Jordan. Ms. Wade, who was a close friend of Marsha, testified that Marsha told her in the spring of 1994 that when Marsha informed the appellant she was going away to university, the appellant put a gun to her head and told her if she ever tried to leave him, he would kill her. In oral argument, the appellant did not press the argument that Ms. Wade’s evidence ought to have been excluded and we see no merit in it.

[146] Mr. Jordan, another of Marsha’s friends, was permitted to testify that in July 1995, Marsha told him that the appellant did not want to break-up with her and she described an incident at a park where he threatened her with a knife to prevent her from ending their relationship. According to Mr. Jordan, in a further conversation with Marsha one week later, she told him that the appellant had used a gun, not a knife, to intimidate her.

[147] In deciding whether to permit Mr. Jordan to testify about his conversations with Marsha, the trial judge expressed a concern about threshold reliability because of the material, and apparently unexplained, change in Marsha’s two statements as to the weapon the appellant had used when threatening her. However, in light of R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, which was then controlling, the trial judge accepted that the “inconsistencies” in Marsha’s statements were “matters of ultimate reliability and have no bearing on the issue of threshold reliability”. Accordingly, he allowed Mr. Jordan to give the impugned evidence.

[148] The appellant now argues that Starr has been overtaken by R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, and that the trial judge therefore erred in not factoring the inconsistencies in Marsha’s two statements into his threshold reliability analysis. Had he done so, the appellant contends, he would have rejected Mr. Jordan’s evidence.

[149] We disagree. In light of Khelawon, we acknowledge that the trial judge could have considered the inconsistencies in Marsha’s statements in assessing threshold reliability. That said, he also could have considered Ms. Wade’s statement and the statements from Marsha’s three other friends, found to be reliable, in which Marsha complained about the appellant threatening her with a gun. Had he done so, we are satisfied that his ruling would have remained the same.

[150] Even if Mr. Jordan’s evidence should not have been admitted, its exclusion could not, in our view, reasonably have affected the verdict. The jury was entitled to hear Ms. Wade’s evidence on the subject. Had the trial judge excluded Mr. Jordan’s evidence, he might well have admitted the evidence of one or more of the other three witnesses to whom Marsha confided about the appellant’s use of a gun.

[151] Further, whether the appellant threatened Marsha with a gun or a knife is of little consequence in our view. Marsha was stabbed to death; she was not shot. In the circumstances, the fact that the appellant may have possessed a gun and threatened Marsha with it on occasion takes on less significance given the way in which she was killed.

[152] In the end, even if Mr. Jordan’s evidence should not have been admitted, it did not result in prejudice warranting appellate intervention.

[153] Accordingly, this ground of appeal fails.

Ground Six: The Trial Judge Erred in Ruling that the Crown Need Not Lead the Appellant’s Statement to Police

[154] Upon his arrest, the appellant provided the police with a lengthy statement that was conceded to be voluntary. The Crown did not wish to lead that statement in-chief but sought permission to use it for cross-examination purposes, should the appellant give evidence.

[155] In acceding to the Crown’s request, the trial judge accepted the Crown’s submission that the appellant’s statement was exculpatory on its face and that it was only minimally or marginally relevant to the Crown’s case “at the present time”. Accordingly, he ruled that the Crown did not have to adduce the statement in its case in-chief.

[156] The trial judge also made it clear that if the appellant did take the stand, the Crown could only use the statement to impeach his credibility. The Crown could not use it to establish guilt and the jury would be told that any inconsistencies between the appellant’s testimony and his statement could only go “to the issue of the accused’s general credibility” and could not be used as “consciousness of guilt” or as having “any relevance to the jury’s determination of the guilt of the accused.”

[157] The appellant submits that the trial judge’s ruling was wrong in law in that it permitted the Crown to improperly split its case.

[158] We disagree. In our view, it was open to the trial judge to conclude that the appellant’s primarily exculpatory statement was only minimally or marginally relevant to the Crown’s case and hence the Crown was not obliged to lead it as part of its case. The appellant has no basis to complain about either the remainder of the trial judge’s ruling as to the limited use the Crown could make of it, or the instructions the jury would receive.

[159] Accordingly this ground of appeal fails.

CONCLUSION

[160] For the foregoing reasons, we would not give effect to any of the appellant’s grounds of appeal. As noted, apart from one minor matter, the trial judge made no errors in his evidentiary rulings. Nor did he err in his instructions to the jury. The appeal is therefore dismissed.

Signed: “M.J. Moldaver J.A

“Janet Simmons J.A.

R. A. Blair J.A.”

RELEASED: “MJM” April 20, 2011

[^1]: This overview of the facts relies largely on the facts as set out in the first Court of Appeal decision in this case. See R. v. Ranger (2003), 2003 CanLII 32900 (ON CA), 67 O.R. (3d) 1. The salient facts at the second trial remained the same.

[^2]: R v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577.