CITATION: R. v. James, 2011 ONCA 839

DATE: 20111228

DOCKET: C50113

COURT OF APPEAL FOR ONTARIO

Doherty, Goudge and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rodger James

Appellant

Catriona Verner, for the appellant

David Lepofsky and Gayle Karding, for the respondent

Heard: October 26, 2011

On appeal from the convictions entered by a jury, presided over by Justice W. Brian Trafford of the Superior Court of Justice, dated April 18, 2008 and from the sentence imposed on May 20, 2008.

Doherty J.A.:

I

OVERVIEW

[1] The appellant was charged with first degree murder and robbery while using a firearm. The Crown alleged that the appellant and another man, Jeffrey Whyte, robbed two persons at gunpoint and shot and killed Cameron Alkins, one of the robbery victims. Identification was the main factual issue at trial, although the defence also argued that even if the appellant was present at the scene of the robbery, he was not involved in the robbery or the homicide. The appellant did not testify.

[2] The jury acquitted on the murder charge, but convicted on the included offence of manslaughter and on the charge of robbery while using a firearm. The trial judge imposed a sentence of 11 years.

[3] The appellant appeals from the manslaughter and robbery convictions and seeks leave to appeal his sentence. The Crown does not appeal from the acquittal on the murder charge.

[4] The conviction appeal focuses on two alleged errors, each of which have a direct impact on the identification issue. Counsel for the appellant submits that the trial judge erred in admitting hearsay evidence in the form of the testimony of the witness Alison Diedrick at the earlier trial of Mr. Whyte. In the part of the prior testimony admitted by the trial judge, Ms. Diedrick identified the appellant from a photo array as the person who was with her and Mr. Whyte in her car near the scene of the robbery immediately before it occurred.

[5] Counsel further submits that the trial judge erroneously instructed the jury that evidence that a black man was seen fleeing the scene of the robbery could be used by the jury as circumstantial evidence that the appellant, a black man, was one of the robbers.

[6] I would allow the appeal. The prior testimony of Ms. Diedrick, identifying the appellant from a photo array, was not shown to be sufficiently reliable to warrant its admissibility under the principled exception to the hearsay rule. The jury instruction that evidence of flight by a black man from the scene of the robbery was evidence that the appellant was the robber was unclear and potentially misleading. It could have been understood by the jury as an instruction that the fact that the appellant was black and one of the robbers was black was sufficient to move the Crown’s identification evidence from proof on a balance of probabilities to proof beyond a reasonable doubt. If members of the jury so understood that instruction, and I think they well could have, this was a serious misdirection.

II

FACTS

[7] In the early evening of March 29, 1996, two teenagers, Yomanga Lawrence and Cameron Alkins, were robbed at gunpoint by two men. One of the robbers was white and the other was black. Both victims had connections to the drug world and the neighbourhood where the robbery occurred was well known for drug-related activity.

[8] Mr. Lawrence testified that he and Mr. Alkins were approached by two armed gunmen. Shots were fired and Mr. Lawrence fled the scene. He returned moments later to find Mr. Alkins lying on the ground badly wounded. Mr. Alkins died a short time later. Mr. Lawrence could not describe or identify either robber. Mr. Devin Constable, the only other witness to see any part of the actual robbery, also could not identify either robber.

[9] The police investigation focussed on Mr. Whyte, a white man, and his friend, the appellant, a black man. Mr. Whyte had escaped from prison about two weeks before the robbery. The police theorized that Mr. Whyte needed money to flee the jurisdiction and decided that robbing drug dealers would be a quick and relatively risk-free way of getting cash.

[10] Mr. Whyte was arrested and charged with murder and robbery in June 1996. In October 1997, he was convicted of robbery and manslaughter.

[11] The appellant fled to the United States shortly after the robbery and was not found and then extradited to Canada until years later. He was tried in March 2008. At the appellant’s trial, it was accepted that Mr. Whyte was the white robber.

III

THE IDENTIFICATION EVIDENCE

[12] The Crown’s case identifying the appellant as the black robber relied on the evidence of Alison Diedrick and Fiona Baxter. The evidence of Ms. Diedrick consisted of her trial testimony and, pursuant to the trial judge’s ruling on the Crown’s application to adduce hearsay statements made by Ms. Diedrick, her audiotaped statement to the police on December 16, 1996, and her testimony at Mr. Whyte’s trial, identifying a photo of the appellant from a photo array as the black person with her and Mr. Whyte immediately before the robbery and homicide.

[13] Ms. Baxter’s evidence consisted only of her trial testimony. The trial judge refused to admit various hearsay statements made by Ms. Baxter. Ms. Baxter did not give identification evidence, but she did testify to certain telephone conversations in the days following the robbery that were capable of supporting the inference that the appellant was one of the robbers.

(i) Ms. Diedrick’s Trial Testimony

[14] Ms. Diedrick had known Mr. Whyte for a few years before March 1996. She had made his acquaintance through a friend while Mr. Whyte was in custody. Ms. Diedrick described herself as a friend of Mr. Whyte and denied that there was a romantic relationship between them.

[15] Ms. Diedrick’s trial testimony offered no support for the Crown’s case against the appellant. She testified that at some time prior to the robbery and homicide in March 1996, and 12 years before the appellant’s trial, Mr. Whyte had introduced her to a friend who went by the nickname “Rebel”. At the time of the introduction, both Mr. Whyte and “Rebel” were inmates in a federal penitentiary. Ms. Diedrick testified that she could not describe “Rebel” other than to indicate that he was a black man. In her trial testimony, she said:

I can look at him [meaning the appellant] and describe him, but if I didn’t see him here, I wouldn’t even know him.

[16] Ms. Diedrick did not identify the appellant as “Rebel” at trial. In cross-examination, she testified that she could not say that she had ever met the appellant.

[17] Ms. Diedrick professed to have no recollection of the events of March 29, 1996. Nor could she recall talking to the police on April 3, 1996 or providing them with an audiotaped statement in December 1996. Listening to the audiotaped statement did not refresh her memory. Ms. Diedrick also could not recall testifying at Mr. Whyte’s trial in October 1997.

[18] Ms. Diedrick attempted to account for her inability to recall any of these events by explaining that she had gone through many difficult issues with her family in the years between 1996 and her testimony at the appellant’s trial. She said that she was very upset and nervous on the witness stand. Ms. Diedrick denied being afraid of the appellant or Mr. Whyte.

(ii) Ms. Diedrick’s Audiotaped Statement from December 16, 1996

[19] Ms. Diedrick spoke to the police at her home on April 3, 1996, about five days after the robbery and homicide. She told the police she had not seen Mr. Whyte for a few months, but had spoken to him about a week earlier. She denied having anything to do with Mr. Whyte on the evening of the robbery.[^1]

[20] On December 16, 1996, Ms. Diedrick was interviewed by the investigating officers at the courthouse. Mr. Whyte’s preliminary inquiry was scheduled to begin that day. She gave an audiotaped statement after being cautioned that if she was not truthful she could be charged. She explained that she had lied to the police on April 3, 1996 because her father was present. Ms. Diedrick told the police that she had met Mr. Whyte through a corrections program when she went to the penitentiary to visit her cousin. Ms. Diedrick indicated that in March 1996 she picked Mr. Whyte up at a restaurant near the penitentiary and drove him to Toronto. She understood that he was on a pass from the penitentiary. In fact, he was unlawfully at large.

[21] In the audiotaped statement, Ms. Diedrick said that she received a telephone call from Mr. Whyte on March 29, 1996. He asked her to drive him to a location in Ajax. When Ms. Diedrick picked Mr. Whyte up, he was with a black man known to Ms. Diedrick as “Rebel”. She had met “Rebel” through Mr. Whyte at the penitentiary.

[22] When Mr. Whyte entered the vehicle, he had a gym bag with him. Both Mr. Whyte and “Rebel” had guns. Mr. Whyte had two weapons and “Rebel” had one or two. According to Ms. Diedrick’s statement, both men were showing off the weapons in the vehicle.

[23] As they drove toward Ajax, Mr. Whyte told Ms. Diedrick he wanted to stop on the way to pick up some money. Mr. Whyte directed Ms. Diedrick to drive to a certain location where Mr. Whyte and “Rebel” left the car. Ms. Diedrick waited in the car. About ten minutes later, Mr. Whyte returned to the car alone. Ms. Diedrick asked where “Rebel” had gone and Mr. Whyte replied, “He’s gone. Just leave him, let’s go.” Ms. Diedrick did not see “Rebel” again. When she learned of the homicide the next day through media reports and her boyfriend, she worried that she could be seen as an accomplice.

[24] The trial judge ruled that the December 16, 1996 audiotaped statement was admissible under the principled exception to the hearsay rule. He found that Ms. Diedrick was dishonestly feigning her loss of memory, thereby establishing the necessity criterion. He went on to hold that there were other substitutes for the contemporaneous cross-examination of Ms. Diedrick that rendered her December 16, 1996 statement sufficiently reliable to warrant its admission into evidence.

[25] The admissibility of Ms. Diedrick’s December 16, 1996 statement is not challenged on appeal, although counsel for the appellant submits that it should have been edited to delete the reference to the name “Rebel” because the police elicited that name using leading questions. I see no merit to that submission and will proceed on the basis that the entire December 16, 1996 audiotaped statement was properly admitted.

(iii) Ms. Diedrick’s Testimony at Mr. Whyte’s Trial

[26] The Crown also sought to introduce Ms. Diedrick’s testimony at Mr. Whyte’s preliminary inquiry in February 1997 and at his trial in October 1997. The trial judge concluded that, with one exception, the preliminary inquiry testimony and the trial testimony were inadmissible in that they merely repeated information already provided by Ms. Diedrick in her December 1996 statement. The one exception arose out of Ms. Diedrick’s selection of a photograph of the appellant as the person she knew as “Rebel” from a photo array that was presented to her both at the preliminary inquiry and at the trial. Ms. Diedrick had not identified the appellant as “Rebel” in her December 1996 statement, but had indicated that Mr. Whyte and “Rebel” were in the car together. The trial judge held that the Crown could adduce Ms. Diedrick’s testimony identifying the photograph of the appellant from the photo array at either the preliminary inquiry or the trial. The Crown chose to lead the evidence of Ms. Diedrick’s identification of the appellant’s photograph at Mr. Whyte’s trial in October 1997.

[27] The Crown filed a two-page extract from Ms. Diedrick’s testimony at Mr. Whyte’s trial. In that extract, Ms. Diedrick testified that she had been presented with two sets of six photographs on sheets of paper sometime prior to testifying at Mr. Whyte’s preliminary inquiry. She indicated that she recognized one of the photos as “Rebel”, and that he was the person who was with her and Mr. Whyte in the car. Ms. Diedrick was then shown the same photo array while on the witness stand at Mr. Whyte’s trial. She selected photograph #4 as a photograph of “Rebel”. Photograph #4 was a photograph of the appellant.

(iv) The Trial Testimony of Fiona Baxter

[28] Ms. Baxter had known Mr. Whyte for a number of years before 1996. They had been romantically involved. She considered him a good friend in March 1996. She knew a man named Rodger James [the appellant’s name] through Mr. Whyte. He was black, tall and slim. He went by the nickname “Rebel”. At the appellant’s trial, Ms. Baxter could not identify the appellant as the Rodger James she knew some 12 years earlier. She described the appellant as larger with a chubbier face. It was agreed at trial that the Rodger James referred to by Ms. Baxter was the appellant.

[29] Ms. Baxter testified that she met with Mr. Whyte at his request late on the evening of March 29, 1996. Mr. Whyte was distraught and afraid. While with Mr. Whyte, Ms. Baxter called a relative and asked her if she had seen the news. The relative told her that there was news of a homicide in the neighbourhood. Ms. Baxter told Mr. Whyte. She spent several hours with Mr. Whyte and spoke to him the next day over the telephone.

[30] The appellant called Ms. Baxter the day after the homicide. She accused him of “killing the boy”. Ms. Baxter could not recall the appellant’s response. She testified that the appellant asked her to help him get in touch with Mr. Whyte. Ms. Baxter did not know how to contact Mr. Whyte.

[31] According to Ms. Baxter, the appellant called her a second time either the same day or the next day. He wanted to know whether Ms. Baxter had spoken with Mr. Whyte. He also wanted Ms. Baxter to arrange a three-way telephone conversation between himself, Mr. Whyte and “Alison”. Ms. Baxter knew a girl named “Alison” who was a friend of Mr. Whyte’s and who worked at a Harvey’s restaurant. She had that person’s phone number. This was in fact Alison Diedrick. Ms. Baxter attempted to arrange the three-way phone call requested by the appellant, but could not reach Ms. Diedrick.

[32] In her testimony, Ms. Baxter professed to have no further recollection of anything the appellant said to her during the conversations. She did testify, however, that she had given a statement to the police within a day or two of speaking to the appellant and that she believed that what she said to the police was the truth. In that statement, Ms. Baxter indicated that the appellant wanted to speak with “Alison” because he was concerned that she might go to the police and he wanted to know what was on her mind. Ms. Baxter also told the police that, based on her conversation with the appellant, she understood that “Alison” was the driver.

IV

THE ADMISSIBILITY OF MS. DIEDRICK’S TESTIMONY AT MR. WHYTE’S TRIAL IDENTIFYING THE APPELLANT’S PHOTOGRAPH

[33] The trial judge’s hearsay ruling dealt at length with the admissibility of several hearsay statements made by Ms. Baxter and Ms. Diedrick. In setting out the applicable legal principles and reviewing the admissibility of the statements made by Ms. Baxter and the audiotaped statement of Ms. Diedrick in December 1996, the trial judge considered the necessity and reliability components of the principled exception to the rule excluding hearsay evidence. However, in addressing the admissibility of Ms. Diedrick’s testimony at Mr. Whyte’s preliminary inquiry and trial, the trial judge focussed exclusively on the necessity component of the admissibility inquiry. Relying on R. v. D.(G.N.) (1993), 1993 CanLII 14712 (ON CA), 81 C.C.C. (3d) 65 (Ont. C.A.), leave to appeal to S.C.C. refused, [1993] S.C.C.A. No. 257, at p. 78, he held that with the exception of the identification of the appellant’s photo, Ms. Diedrick’s testimony at the preliminary inquiry and trial did not meet the necessity criterion because it added nothing of substance to the information she had provided in her December 1996 audiotaped statement. That holding is not challenged.

[34] Having concluded that the part of Ms. Diedrick’s testimony in which she identified the photograph of the appellant met the necessity requirement, the trial judge should have gone on to consider whether that evidence was sufficiently reliable to justify its admission at the appellant’s trial despite its hearsay nature. The trial judge’s failure to conduct that inquiry is an error in law. On my review of the voir dire record, the Crown failed to offer evidence on which a finding of threshold reliability could reasonably have been made.

[35] Hearsay is presumptively inadmissible because it is inherently unreliable. The unreliability of hearsay flows in large measure from the difficulties encountered in effectively challenging hearsay evidence. The threshold reliability component of the admissibility inquiry protects the integrity of the trial process by insisting that the party proffering hearsay evidence demonstrate that it is sufficiently reliable to overcome the dangers inherent in hearsay evidence: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 49, 59-65; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 35; R. v. Devine, 2008 SCC 36, [2008] 2 S.C.R. 283, at para. 19.

[36] Threshold reliability is usually met in one of two ways, although they are not mutually exclusive. First, the court may be satisfied that the circumstances in which the statement was made provide sufficient guarantees of the trustworthiness of the statement to negate reliability concerns. R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531 provides an excellent example of a case in which the circumstances surrounding the making of the statement by the young complainant, as well as the content of the statement itself, provided a level of reliability that justified its admission.

[37] Threshold reliability may also be established if there are means by which the reliability of the statement can be sufficiently tested at trial despite its hearsay nature. Cross-examination by the party against whom the hearsay statement is tendered at the time the hearsay statement was made is perhaps the most powerful way in which to establish the threshold reliability of a hearsay statement. For example, where a witness testifies in a prior proceeding in relation to the charge and is cross-examined by the accused’s counsel, that statement may well be admitted at a subsequent trial on the basis that the contemporaneous cross-examination of the declarant rendered the statement sufficiently reliable to justify its admission at that subsequent trial: R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, at paras. 76-80.

[38] Even where there was no opportunity to cross-examine when the statement was made, the ability to meaningfully cross-examine the hearsay declarant on the hearsay statement at trial will also often suffice to establish threshold reliability: Khelawon, at paras. 76-79; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 87-88; Devine, at paras. 22-25.

[39] In considering threshold reliability, it is easiest to look first to the possibility of cross-examination at trial as providing sufficient reliability to warrant admission into evidence: Couture. Ms. Diedrick was subject to cross-examination at Mr. Whyte’s trial by counsel for Mr. Whyte. The appellant was not a party to that trial. There is no suggestion that counsel for Mr. Whyte explored Ms. Diedrick’s identification of the appellant’s photo in his cross-examination or that his cross-examination could provide an adequate substitute for cross-examination on behalf of the appellant.

[40] Ms. Diedrick was available for cross-examination at the appellant’s trial. If appellant’s counsel had been able to engage Ms. Diedrick in a meaningful cross-examination on her purported identification of the appellant’s photograph at Mr. Whyte’s trial, that cross-examination would have gone a long way to establishing the threshold reliability of Ms. Diedrick’s testimony at Mr. Whyte’s trial.

[41] Although Ms. Diedrick was physically present for cross-examination at the appellant’s trial, her professed total loss of memory of the relevant events, including the making of the identification, rendered any cross-examination of her concerning that identification of little value. Identification evidence is inherently suspect. A proper assessment of a witness’s purported identification evidence can only be made if the process that led to that identification is fully and carefully explored. One can imagine a litany of questions that could have been put to Ms. Diedrick about the identification process and her selection of the appellant’s photograph. These would include questions like:

• When did she first see a photo array?

• What was said to her by the police before she was shown the photo array?

• When did she first identify a photograph of the appellant?

• How certain was she of that identification?

• What did the police say when she made the identification?

• How many times had she seen the photograph of the appellant before it was shown to her at Whyte’s trial?

• Had she seen photographs of the appellant as a person connected to the homicide in media reports before she was asked to look at the photo array?

[42] The questions set out above and many others, all pertinent to the identification process, would have fallen unanswered against the wall of Ms. Diedrick’s purported complete loss of memory of the relevant events.

[43] The inability to meaningfully cross-examine Ms. Diedrick on her identification of the appellant makes this case distinguishable from Devine, also a case where the hearsay statement involved an identification. In Devine, the witness had offered an explanation for recanting her out-of-court identification. Charron J., in upholding the admissibility of the witness’s out-of-court statement, observed, at paras. 28-29, that the witness who had provided a detailed description of the person she identified could be cross-examined both on that statement and on her explanations for resiling from that statement.

[44] This case is more like R. v. Post, 2007 BCCA 123, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 207, at para. 65, where the witness’s prior statement was found inadmissible in part because the witness’s professed inability to recall the statement or the relevant events rendered the opportunity to cross-examine that witness at the trial valueless as a means of testing the reliability of that statement: see also R. v. T.G.N., 2007 BCCA 2, at paras. 16-17.

[45] Where, as here, the hearsay statement involves identification evidence, the ability to meaningfully cross-examine the declarant on that statement takes on added significance. In R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641 (C.A.), where the Crown sought to introduce a hearsay statement in which the witness had selected an accused from a photo line-up, this court said, at p. 669:

[T]he absence of contemporary cross-examination, is said to be the most important of the dangers associated with the admission of hearsay evidence. If the proffered hearsay consists of a previous statement made by a person who testifies, that danger will usually be alleviated by the ability to cross-examine that witness at trial. If, however, the prior statement is one of identification and the witness denies making the identification, special problems arise and cross-examination at trial may not provide a suitable substitute for contemporaneous cross-examination.

Cross-examination of the maker of the statement at trial will certainly assist in assessing the credibility of the witness, but may not assist in testing the reliability of the out-of-court statement. [Emphasis added.] [Footnotes omitted.]

[46] The comments in Tat have equal application where the witness does not recall making the prior identification. While Ms. Diedrick’s credibility can be undermined by cross-examination to show she was feigning her memory loss, cross-examination of her at the appellant’s trial could not undermine the reliability of her identification of the appellant at Mr. Whyte’s trial. Absent the ability to meaningfully cross-examine Ms. Diedrick on her identification of the appellant’s photograph at Mr. Whyte’s trial, there were no means by which the truth of that statement could be tested at the appellant’s trial in a manner that would render the evidence sufficiently reliable to justify its admission despite its hearsay nature.

[47] Having found that there are no other means available to adequately test the reliability of Ms. Diedrick’s prior testimony, I turn to the circumstances in which that testimony was given. Ms. Diedrick’s testimony was given under oath in a court proceeding and was recorded. Those features tend to give some circumstantial guarantee of trustworthiness to the testimony. However, in considering whether the circumstances render her prior testimony sufficiently reliable, the subject matter of that prior testimony is of prime importance. This was not a statement about something that had just happened to Ms. Diedrick or a statement about her state of mind. This was a statement identifying the appellant as the person who was in the car with her many months earlier. With identification evidence, the concern is not just with the witness’s veracity, but also with the reliability of the evidence. That reliability depends on an assessment of the entirety of the identification process and not an examination in isolation of the act of selecting a photograph from a photo array.

[48] Ms. Diedrick purported to identify a photograph of the appellant many months after the relevant events. She had seen the photograph at least once before. Apart from the availability of the photo array itself for inspection and Ms. Diedrick’s evidence that she had identified the same photograph some time earlier, there was nothing in Ms. Diedrick’s evidence or any of the voir dire evidence about the circumstances of her identification of the appellant’s photograph. Evidence that a witness selected a photograph from a photo array without evidence of what happened before and during that selection process is of little value. In Tat, this court said, at p. 656:

However, where identification evidence is involved, it is the in-court identification of the accused which has little or no probative value standing alone. The probative force of identification evidence is best measured by a consideration of the entire identification process which culminates with an in-court identification. The central importance of the pre-trial identification process in the assessment of the weight to be given to identification evidence is apparent upon a review of the cases which have considered the reasonableness of verdicts based upon identification evidence.

If a witness identifies an accused at trial, evidence of previous identifications made and descriptions given is admissible to allow the trier of fact to make an informed determination of the probative value of the purported identification. The trier of fact will consider the entirety of the identification process as revealed by the evidence before deciding what weight should be given to the identification made by the identifying witness. Evidence of the circumstances surrounding any prior identifications and the details of prior descriptions given will be central to that assessment. [Emphasis added.] [Footnotes omitted.]

[49] The Crown led no evidence on the voir dire of the process of identification culminating in Ms. Diedrick’s identification of the appellant at Mr. Whyte’s trial.[^2] A bald in-court identification of an accused from a photo array carries no circumstantial guarantees of trustworthiness. The circumstances in which Ms. Diedrick purported to identify the appellant’s photograph at Mr. Whyte’s trial give no comfort as to the reliability of that identification.

[50] The Crown failed to establish that Ms. Diedrick’s identification of the appellant’s photograph at Mr. Whyte’s trial was sufficiently reliable to justify its admission at the appellant’s trial. The prior testimony of Ms. Diedrick should have been excluded.

V

THE JURY INSTRUCTION ON FLIGHT

[51] In the pre-charge discussions, the trial judge struggled with the connection, if any, between the flight of a black man from the scene of the robbery and evidence capable of identifying the appellant as that person. Over the strong objections of counsel for the appellant, the trial judge instructed the jury in these terms:

These instructions are based upon an assumption that you are satisfied on a balance of probabilities given the testimony of Allison Diedrick and Fiona Baxter that Rodger James was the black man. The evidence of the flight of the black man may be considered by you in that context and in the context of the evidence as a whole in determining whether the Crown has satisfied you beyond a reasonable doubt on the issue of identity; that is, that Rodger James was the black man.

[52] With respect, “evidence of the flight of the black man”, regardless of the context, was not in and of itself capable of supporting the Crown’s contention that the appellant was the black man. At best, the evidence of the flight of the black man had some minimal indirect value to the Crown’s case on the issue of identification. Members of the jury could infer from the flight of the black man that he was involved in the robbery. If they drew that inference, it offered some minimal support for the Crown’s case that the appellant was one of the robbers since the appellant was in fact a black man. In this sense, the evidence had relevance to the identification issue in the same way that evidence that someone saw a young man fleeing from the scene would have relevance because the appellant was a young man. The evidence had minimal probative value on the issue of identification.

[53] The trial judge’s instruction, however, suggested that a more direct and powerful inference could be drawn from the flight of the black man. As I read the charge, jury members were told they could use the evidence of the flight by a black man from the scene of the robbery, a fact that was not disputed, to lift what would otherwise be an insufficient case for the Crown on identification over the reasonable doubt hurdle. The evidence of the flight of the black man could not possibly carry that heavy load on the identification issue. The instruction constitutes misdirection.

VI

THE CURATIVE PROVISO: SECTION 686(1)(b)(iii)

[54] Both errors outlined above go to identification, the central issue at trial. The case for the Crown on identification was not overwhelming. Significant legal errors in cases that are not overwhelming cannot be overcome by the curative proviso: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. Sarrazin, 2011 SCC 54, at paras. 22-28.

[55] In invoking the proviso, Mr. Lepofsky makes a novel argument. He submits that the trial judge in his hearsay ruling wrongly excluded significant evidence that supported the Crown’s case. Mr. Lepofsky argues that if the excluded evidence is added into the evidentiary mix, the Crown’s case becomes overwhelming and the proviso could be applied.

[56] The application of the proviso must be considered in the context of the evidence heard by the jury, not the evidence it might have heard had the trial judge made different rulings. To consider excluded evidence, even wrongly excluded evidence, in deciding whether the proviso should be applied, is to apply the proviso to a different case than the one heard by the jury. Because the evidence was excluded at trial, the appeal court has no way of knowing how the defence would have met that evidence and, consequently, no way of knowing how strong that evidence might have been. An appellant who has demonstrated an error in law and is otherwise entitled to a new trial should not be deprived of that new trial based on assumptions about the probative force of evidence he was never called upon to answer at trial. The excluded evidence can play no role in determining the application of the curative proviso to the legal errors made at trial.

[57] Where, however, the issue is not the application of the curative proviso, but whether a successful appellant is entitled to an acquittal or a new trial, the Crown may argue that probative evidence was improperly excluded in support of a submission that the court should direct a new trial and not enter an acquittal. Counsel for the appellant, quite properly, does not suggest that an acquittal would be an appropriate remedy here. The Crown can re-litigate the admissibility rulings made by the trial judge at the new trial: see R. v. Duhamel, 1984 CanLII 126 (SCC), [1984] 2 S.C.R. 555.

VII

CONCUSION

[58] I would allow the appeal and order a new trial on the charges of manslaughter and robbery while using a firearm.

RELEASED: December 28, 2011 (“D.D.”)

“Doherty J.A.”

“I agree S.T. Goudge J.A.”

“I agree Gloria Epstein J.A.”

[^1]: This statement was not admitted for its truth, but was, however, available to the jury in their assessment of Diedrick’s credibility.

[^2]: Even at the trial proper, apart from the photo array itself, there was little evidence available as to the reliability of the identification process. All of the officers’ notes had been lost and it was even unclear which officer had shown Ms. Diedrick the photographs. On the limited information available, however, there were obvious flaws in the identification process. The photos had been shown to the witness six at a time rather than one at a time and they had been shown to her by one of the investigating officers rather than an officer who was not involved in the case.