Her Majesty the Queen v. Li et al. [Indexed as: R. v. Li]

110 O.R. (3d) 321

2012 ONCA 291

Court of Appeal for Ontario,

O'Connor A.C.J.O., Feldman and Sharpe JJ.A.

May 7, 2012

Charter of Rights and Freedoms -- Trial within reasonable time -- Trial judge finding that 15.5 months of 19.5-month period before trial attributable to institutional delay -- Trial judge entitled to reject uncontradicted affidavit evidence of accused that they had suffered actual prejudice as result of delay -- Judge inferred moderate degree of prejudice from restrictive bail terms -- Trial judge not erring in concluding that delay was not unreasonable.

Criminal Law -- Charge to the jury -- Instructions regarding the use of evidence read in from preliminary inquiry pursuant to s. 715(1) -- Key Crown witness being outside Canada at time of trial and preliminary hearing evidence admitted -- Trial judge declining to give instruction sought by defence counsel that purpose of cross-examination at preliminary hearing different from trial as credibility not issue at preliminary hearing -- Trial judge having discretion whether to provide requested instruction -- Trial judge erring by telling jury that defence counsel had had full opportunity to cross-examine witness at preliminary inquiry without adding that may be tactical reasons for not fully cross-examining witness at preliminary hearing and that full cross-examination may not have occurred despite judge permitting Crown to read in evidence -- Error contributed to unfair trial -- New trial ordered -- Criminal Code, R.S.C. 1985, c. C-46, s. 715(1).

Criminal law -- Evidence -- Admissibility -- Application by Crown to read key witness's preliminary hearing evidence pursuant to s. 715(1) of Code -- Crown not attempting to subpoena witness until shortly before trial -- Witness being out of Canada -- Trial judge initially declining to permit Crown to read in testimony but later reconsidering after witness contacted by police and advising would not return to Canada during trial -- Principled approach to hearsay relevant to interpretation and application of s. 715(1) -- Witness asking police if he could give evidence through means other than by returning to Canada -- Trial judge erred by failing to consider possibility of taking witness's evidence via teleconference or videoconference -- New trial ordered.

Criminal law -- Trial -- Jury trial -- Charge to jury -- Accused charged with aggravated assault -- Trial judge erring in giving jury three portions of charge (including six routes by which each accused could be party to offence) in writing several hours into deliberations -- Jury not having made clarification of instructions or asking for copy of any instructions -- Judge permitted to give jury part of instructions in writing but must be fair and balanced -- Written charge failing to include instructions regarding presumption of innocence and burden of proof -- Written charge also erring failing to advise jury that only evidence directly admissible against each accused may be considered when determining if that accused probably member of common purpose group -- Given complicated nature of charge, timing of when incorrect [page322] written instructions provided together with absence of instructions on presumption of innocence and burden of proof rendering trial unfair -- New trial ordered.

Both accused were convicted of aggravated assault, and one accused was also convicted of possession of a weapon for the purpose of committing an indictable offence. The trial judge had dismissed an application by the accused for a stay of proceedings under s. 24(1) of the Canadian Charter of Rights and Freedoms based on an alleged violation of their right under s. 11(b) of the Charter to be tried within a reasonable time. Y was the only eyewitness who identified the accused as the victim's assailants. The Crown had subpoenaed Y shortly before the trial started, at which point Y was no longer in Canada. The trial judge initially ruled that the Crown could not read in the evidence given the minimal effort made before the start of the trial to ensure that the witness was available. The judge reconsidered his ruling after the police contacted the witness, and the witness stated he was not going to return to Canada during the trial. The witness asked the police if he could provide his evidence by means other than physical presence. The trial judge then permitted the Crown to read Y's preliminary inquiry testimony into evidence under s. 715(1)(d) of the Criminal Code. The accused appealed.

Held, the appeal should be allowed.

The trial judge found that, of the total period of 19.5 months before trial, 15.5 months was attributable to institutional delay. In conducting his analysis under s. 11(b) of the Charter, the trial judge was entitled to reject uncontradicted affidavit evidence of the accused that they had suffered actual prejudice as a result of the 19.5-month delay. The affidavit contained no details about what educational or work opportunities the accused were prevented from pursuing as the result of their bail terms. The trial judge nevertheless attributed a "moderate degree" of inferred prejudice as a result of restrictive bail terms (including house arrest). The trial judge did not err in finding that the delay was not unreasonable.

The trial judge did not err in revisiting his ruling regarding the Crown's application to read in the preliminary hearing evidence of the key witness pursuant to s. 715(1) after the Crown obtained evidence that the witness was not willing to return to Canada during the trial. The principled approach to hearsay is relevant to the judge's exercise of discretion whether to admit evidence using s. 715(1). In addition, given the principled approach, the trial judge erred in failing to consider whether the witness's evidence might have been obtained via a live videoconference or a teleconference. The witness's question to the police officer about whether there was a way to give his evidence without returning to Canada supports the inference that he may have co-operated with a technological means of giving evidence.

Defence counsel sought an instruction that cross-examination at a preliminary hearing is different than that at trial as there is no need to attack the credibility of the witness, because credibility is not an issue. The judge refused to give that instruction. It was up to the judge's discretion whether to give that instruction. However, he erred when he told the jury, without elaboration, that a witness's evidence could only be read in where there had been a full opportunity at the preliminary hearing for the accused to cross-examine him, and that there was such a full opportunity. Without a fuller explanation, the jury would not have understood that a full opportunity did not mean that there was, in fact, a full cross- examination, and that there were tactical reasons why defence counsel might not conduct a full cross-examination at that stage of the proceedings. [page323]

The trial judge erred by giving the jury three selected portions of the charge in writing several hours into the deliberations, including the six routes by which each of the accused could be a party to the offence. The jury had not asked any questions nor indicated that they were having any difficulties. In order to avoid leaving the jury with what might have appeared to be only the Crown's perspective, the judge should also have included the portions of his charge dealing with the presumption of innocence and the burden of proof.

The written instructions failed to state that when the jury considered whether each accused was probably a member of a common purpose group, it was limited to evidence directly admissible against that accused. Although the correct instruction appeared under another heading in the written instructions, had the jury noticed the discrepancy, they would have had no way of knowing which instruction was correct. In this legally complicated case, this error together with the timing of the written instructions and the omission of the instructions regarding the presumption of innocence and the burden caused the charge to the jury to be unfair. Given these errors in the instructions to the jury and the error in admitting the key witness's evidence from the preliminary hearing, a new trial is ordered.

APPEAL by the accused from the conviction entered by a jury presided over by Graham J. of the Superior Court of Justice dated January 6, 2005.

Cases referred to R. v. O'Connor (2002), 2002 3540 (ON CA), 62 O.R. (3d) 263, [2002] O.J. No. 4410, 166 O.A.C. 202, 170 C.C.C. (3d) 365, 7 C.R. (6th) 205, 100 C.R.R. (2d) 164, 56 W.C.B. (2d) 61 (C.A.); R. v. Orpin, 2002 23600 (ON CA), [2002] O.J. No. 1541, 158 O.A.C. 201, 165 C.C.C. (3d) 56, 54 W.C.B. (2d) 60 (C.A.); R. v. Potvin, 1989 130 (SCC), [1989] 1 S.C.R. 525, [1989] S.C.J. No. 24, 93 N.R. 42, J.E. 89-521, 21 Q.A.C. 258, 47 C.C.C. (3d) 289, 68 C.R. (3d) 193, 42 C.R.R. 44, 7 W.C.B. (2d) 41; R. v. Wilcox, [2001] N.S.J. No. 85, 2001 NSCA 45, 192 N.S.R. (2d) 159, 152 C.C.C. (3d) 157, 49 W.C.B. (2d) 198, consd Other cases referred to R. v. B. (A.) (1997), 1997 1902 (ON CA), 33 O.R. (3d) 321, [1997] O.J. No. 1578, 100 O.A.C. 81, 115 C.C.C. (3d) 421, 7 C.R. (5th) 238, 34 W.C.B. (2d) 369 (C.A.) [Leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 461]; R. v. Basarabas, 1982 216 (SCC), [1982] 2 S.C.R. 730, [1982] S.C.J. No. 96, 144 D.L.R. (3d) 115, 46 N.R. 69, [1983] 4 W.W.R. 289, 2 C.C.C. (3d) 257, 31 C.R. (3d) 193; R. v. Chambers, 1990 47 (SCC), [1990] 2 S.C.R. 1293, [1990] S.C.J. No. 108, 119 N.R. 321, [1990] 6 W.W.R. 554, J.E. 90-1517, 49 B.C.L.R. (2d) 299, 59 C.C.C. (3d) 321, 80 C.R. (3d) 235, 11 W.C.B. (2d) 191; R. v. Davidson, 1988 7067 (ON CA), [1988] O.J. No. 954, 28 O.A.C. 86, 42 C.C.C. (3d) 289, 5 W.C.B. (2d) 71 (C.A.) [Leave to appeal to S.C.C. refused [1989] S.C.C.A. No. 127]; R. v. Finta, 1994 129 (SCC), [1994] 1 S.C.R. 701, [1994] S.C.J. No. 26, 112 D.L.R. (4th) 513, 165 N.R. 1, J.E. 94-519, 70 O.A.C. 241, 88 C.C.C. (3d) 417, 28 C.R. (4th) 265, 20 C.R.R. (2d) 1, 23 W.C.B. (2d) 3, affg 1992 2783 (ON CA), [1992] O.J. No. 823, 92 D.L.R. (4th) 1, 53 O.A.C. 1, 73 C.C.C. (3d) 65, 14 C.R. (4th) 1, 9 C.R.R. (2d) 91, 16 W.C.B. (2d) 63 (C.A.); R. v. Godin, [2009] 2 S.C.R. 3, [2009] S.C.J. No. 26, 2009 SCC 26, 192 C.R.R. (2d) 184, 67 C.R. (6th) 95, 309 D.L.R. (4th) 149, 252 O.A.C. 377, EYB 2009-159757, J.E. 2009-1076, 389 N.R. 1, 245 C.C.C. (3d) 271; R. v. Kerr, 1996 433 (ON CA), [1996] O.J. No. 3771, 94 O.A.C. 70, 32 W.C.B. (2d) 369 (C.A.); R. v. Khelawon, [2006] 2 S.C.R. 787, [2006] S.C.J. No. 57, 2006 SCC 57, 274 D.L.R. (4th) 385, 355 N.R. 267, J.E. 2007-28, 220 O.A.C. 338, 215 C.C.C. (3d) 161, 42 C.R. (6th) 1, 71 W.C.B. (2d) 498, EYB 2006-111773; R. v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680, [1997] S.C.J. No. 30, 148 D.L.R. (4th) 608, 213 N.R. 1, [1997] 8 W.W.R. 1, J.E. 97-1409, 51 Alta. L.R. (3d) 181, 200 A.R. 81, 116 C.C.C. (3d) 97, 8 C.R. (5th) 155, 44 C.R.R. (2d) 262, 35 W.C.B. (2d) 14; R. v. Mathisen, [2008] O.J. No. 4382, 2008 ONCA 747, 63 C.R. (6th) 248, 242 O.A.C. 139, 239 C.C.C. (3d) 63; R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25, 134 N.R. 321, J.E. 92-517, 53 O.A.C. 241, 71 C.C.C. (3d) 1, 12 C.R. (4th) 1, 8 C.R.R. (2d) 193, 15 W.C.B. (2d) 276; R. v. Pintar (1996), 1996 712 (ON CA), 30 O.R. (3d) 483, [1996] O.J. No. 3451, 93 O.A.C. 172, 110 C.C.C. (3d) 402, 2 C.R. (5th) 151, 32 W.C.B. (2d) 205 (C.A.); R. v. Poitras (2002), 2002 23583 (ON CA), 57 O.R. (3d) 538, [2002] O.J. No. 25, 154 O.A.C. 25, 1 C.R. (6th) 366, 52 W.C.B. (2d) 256 (C.A.); [page324] R. v. Starr, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 2000 SCC 40, 190 D.L.R. (4th) 591, 258 N.R. 250, [2000] 11 W.W.R. 1, J.E. 2000-1848, 148 Man. R. (2d) 161, 147 C.C.C. (3d) 449, 36 C.R. (5th) 1, 47 W.C.B. (2d) 250 Statutes referred to Canada Evidence Act, R.S.C. 1985, c. C-5, s. 30 [as am.] Canadian Charter of Rights and Freedoms, ss. 7, 11(b), (d) Criminal Code, R.S.C. 1985, c. C-46, ss. 21(1)(a), (b), (c), (2), 22(1), (2), 644(1), (2), 686(1)(b)(iii), 714.2, 714.4, 715 [as am.], (1) [as am.], (d)

The judgment of the court was delivered by

FELDMAN J.A.: -- Background Overview

[1] The appellants were both convicted in a jury trial of aggravated assault. The appellant Lau was also convicted of possession of a weapon (a lead pipe) for the purpose of committing an indictable offence. The charges arose out of an attack on another young man, Ching "Billy" Law, which took place in an Internet café called Virtual Domain on July 25, 2002. The main perpetrator was a young offender, S.E., who came into the café where the victim was sitting and attacked him with a machete, almost severing his hand. S.E. was convicted of aggravated assault in an earlier trial.

[2] The evidence against the appellants was very weak. The attack involved a large number of young men and was alleged to have occurred as part of a settling of accounts between Philip Siu and Mike Wong. The victim was alleged to be aligned with Siu and the appellants with Wong. The victim had arranged to meet with Siu at Virtual Domain that night and was waiting there with a handgun when he received a call from Siu advising him that a number of people were outside the café in the parking lot. The victim looked out the window and saw them as well as Wong's car. When he went back and sat down, a group of five to ten people quickly came in and attacked him. Law recognized S.E., who attacked him with the machete. When Law raised his [page325] arm defensively, he suffered a blow from the machete to his wrist that almost severed his hand from his arm. Other people also struck the victim over a 20- to 30- second time period.

[3] After the attackers rushed outside, Law followed and saw them get into two cars, one of which was Wong's, and drive away. He got rid of his gun, then waited for the police and ambulance to arrive.

[4] The victim knew both appellants and testified that neither of them was one of the attackers. Nine independent eyewitnesses testified. None identified the appellants as attackers. The appellants were put at the scene by two discredited witnesses, Heng Lam "Ken" Chu and Richard Yoon, and by a third accomplice, Ritchie Yii. Mr. Yii was the only person who said that the appellants attacked the victim and the only one who said the appellant Lau attacked the victim with a lead pipe. Mr. Yii also said that, earlier that night, the appellant Li had phoned him to say that they were going to find Mr. Law and beat him up. When Mr. Yii, Mr. Li, Mr. Lau and others met up at President Snooker's before the attack, the appellant Li repeated these assertions.

[5] The trial began following a motion to stay the charges based on unreasonable delay, which motion was dismissed. Mr. Yii was out of the country at the time of the trial. The trial judge allowed his preliminary hearing evidence to be read in pursuant to s. 715(1) of the Criminal Code, R.S.C. 1985, c. C- 46 (the "Code").

[6] The trial lasted six weeks in addition to an extended break over Christmas and New Year's. One juror was discharged before the break, and when the trial recommenced on January 4, 2005 for closing addresses and the charge to the jury, a second juror who was ill that day was also discharged. Ultimately, the appellants were convicted. Issues

[7] There are four common grounds of appeal, and two further grounds raised by the appellant Lau: (1) Did the trial judge err by dismissing the motion for a stay based on unreasonable delay after 19.5 months and, in particular, by failing to give effect to the evidence of prejudice suffered by the appellants? (2) Did the trial judge err by permitting the Crown to read into evidence the preliminary hearing testimony of the witness Ritichie Yii under s. 715(1) of the Code because he was out of the country at the time of the trial? [page326] (3) Was the caution the trial judge gave the jury regarding the evidence of Ritchie Yii that was read in insufficient and misleading? (Raised by the appellant Lau.) (4) Did the trial judge err by discharging a juror who had heard all of the evidence and who was sick for only one day when the trial resumed after the holiday break? (5) Was the charge on the routes of liability unnecessarily complicated and confusing for the jury? (Raised by the appellant Lau.) (6) Was the fairness of the trial compromised by giving the jury only parts of the charge in writing after they had begun their deliberations? Analysis

Issue 1: Should the charges have been stayed for unreasonable delay under [s. 11(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[8] Nineteen and one-half months passed between the date the appellants were charged and the commencement of their trial. The defence did not waive any period of delay, nor did it cause any of the delay. The trial judge broke down the periods leading up to the trial as follows: (1) initial inherent intake period from March 25, 2003--June 13, 2003: 2.66 months; (2) Crown delay with disclosure from June 13, 2003--October 2, 2003: 3.5 months; (3) systemic requirements from judicial pre- trial, October 2, 2003, until committal for trial following the preliminary hearing, May 11, 2004: 7.25 months; (4) inherent intake in the Superior Court from May 11, 2004--June 17, 2004: 1.25 months; (5) systemic time to schedule Superior Court trial from June 17, 2004--November 8, 2004: 4.75 months. Subtracting the inherent intake periods, the total time attributable to Crown and institutional delay was 15.5 months.

[9] On this appeal, the appellants do not challenge these time attributions by the trial judge. They submit that the delay was unreasonable because of the actual prejudice they suffered while on restrictive bail, and that the trial judge made a palpable and overriding error by failing to find that they suffered actual prejudice as set out in their affidavits filed on the s. 11(b) [of the Canadian Charter of Rights and Freedoms] motion. Despite the fact that those affidavits went unchallenged by the Crown, the trial judge found that the appellants' assertions of actual prejudice caused by the conditions of their house arrest were contrived, and he rejected them. [page327]

[10] The appellants' bail conditions amounted to very strict house arrest, which did not make an exception for work or education. As a result, the appellants were not allowed to work, to earn any money or to socialize at all. Mr. Lau's affidavit (sworn on information and belief by a student in his counsel's office) stated that he was obliged to give up a computer business from which he earned some money and that he had no money for a bail review application. Family events were also cancelled or rearranged because he could not leave Ontario. He could not go to school and had no social life over the entire period. Mr. Li had to give up doing odd jobs for cash and, as a result, also had no money for a bail review application. He had gained weight because he was housebound and had not been able to travel to the United States when his grandfather was dying. His family relationships were also strained because of the confinement.

[11] The trial judge rejected the appellants' claims regarding work and education, based on the fact that they were not substantiated by any details, such as an educational plan. He noted that Mr. Lau had breached his bail, which did not bolster his prejudice claim. The trial judge concluded that the young men's biggest problem was being confined with their parents for the period.

[12] The appellants assert that it was not open to the trial judge to reject the uncontradicted evidence of the appellants. I do not agree.

[13] The trier of fact is not obliged to accept any evidence tendered before it. Juries are routinely told that it is up to them to decide what evidence they accept, and that they may accept all, part or none of a witness's evidence: see, e.g., R. v. Mathisen, [2008] O.J. No. 4382, 2008 ONCA 747, at para. 88. The trial judge gave his reasons for disbelieving the affidavit evidence tendered by the appellants on the issue of whether they suffered actual prejudice by being prevented from working and going to school by the terms of their restrictive bail conditions. He relied on the fact that no details were provided regarding the work that the appellants were unable to do or an educational plan that was thwarted. The trial judge was entitled to require some proof of what was being asserted, particularly on a motion for a stay of proceedings where the issue of actual prejudice is an important component of the analysis.

[14] In any event, after rejecting the specific prejudice asserted by the appellants, the trial judge nevertheless attributed a "moderate degree" of inferred prejudice due to the "restrictive bail terms" and factored that into his analysis of whether the delay in this case amounted to unreasonable delay that required [page328] the charges to be stayed. He concluded that the delay was within the guidelines of R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25 and was not unreasonable.

[15] In my view, the trial judge made no reversible error in his assessment of the evidence or in applying the necessary factors and in arriving at his conclusion.

[16] A second issue raised by the appellant Lau and also going to the prejudice factor is that the delay contributed to the appellant's inability to make full answer and defence because it was as a result of the delayed trial date that the witness Yii had left the country before the trial. The police did not attempt to subpoena him until two weeks before the November trial date, at which point he had already left the country for Singapore. Mr. Yii was a critical witness against the appellants: he was the only witness who said Mr. Lau attacked the victim and that he had a lead pipe. His preliminary inquiry evidence was read into the record before the jury and no live cross-examination took place before the jury.

[17] In R. v. Godin, [2009] 2 S.C.R. 3, [2009] S.C.J. No. 26, 2009 SCC 26, Cromwell J., at para. 30, reiterated the role of prejudice in the s. 11(b) analysis:

Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin, at pp. 801-3.

[18] I agree with the appellants that the absence of Mr. Yii from the jurisdiction leading to the successful s. 715(1) application to read in his evidence from the preliminary hearing prejudiced the appellants' ability to cross-examine Mr. Yii at the trial. Because the appellants did not know about this problem on October 4, 2004, when the s. 11(b) motion was heard, it could not have been raised as a ground of prejudice at that time. However, once they learned about it, they did not seek to reopen and reargue the motion at the opening of trial, based on a material change in circumstances: see R. v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680, [1997] S.C.J. No. 30, at para. 28.

[19] Although the trial judge did not analyze the extent of this prejudice in the context of the delay motion under s. 11(b), because, through no fault of the defence, it was not raised with him, he did address the issue when he decided to allow Mr. Yii's preliminary inquiry evidence to be read in. I agree with the respondent that given what occurred at trial and given that on [page329] this appeal the issue of the propriety of allowing the s. 715 motion is squarely raised as a ground of appeal, it is in that context that the issue should be addressed, rather than as part of the s. 11(b) analysis that was not considered by the trial judge on the motion.

[20] I conclude that the trial judge did not err in finding that there was no unreasonable delay in this case requiring a stay of the charges.

Issue 2: Did the trial judge err in allowing the Crown to read into evidence the preliminary inquiry testimony of the witness Ritchie Yii?

(1) Background

[21] Ritchie Yii was a Crown witness who testified at the preliminary hearing. He was first approached by police detectives in March 2003 about his involvement in or knowledge of the attack on Mr. Law the previous July. He first denied any involvement but eventually told the police that he had witnessed the assault. He then gave a videotaped statement to the police.

[22] Mr. Yii was subpoenaed to testify at the trial of two other young people charged in connection with the attack on Mr. Law for a trial in January 2004. However, he left Canada for Malaysia before that trial began and did not return until after the date that the preliminary hearing in this case was expected to end. It transpired that the latter hearing went on longer than expected and Mr. Yii did return to Canada before it was over. Upon his return, Mr. Yii contacted the police and picked up a subpoena for the preliminary hearing. He then testified at the preliminary hearing. He gave evidence there that he did not obey the first subpoena because he did not understand that it was mandatory to do so.

[23] On July 5, 2004, the trial judge set November 8, 2004 for the trial of these charges. However, the detectives in charge did not attempt to subpoena Mr. Yii to testify at the trial until mid-late October, and it was not until November 4 that they learned from his mother that he had left for Singapore in September to attend school there. When they phoned him in Singapore, he said he was willing to return to testify but he could not afford the airfare and did not plan to be back until "next year". The officer asked the Crown if it would fund the witness's return but there was no evidence about a response. The officer had been unable to subsequently reach Mr. Yii by phone. [page330]

(2) The first ruling

[24] At trial, the Crown sought to read in Mr. Yii's preliminary hearing testimony under s. 715(1)(d) of the Code. Section 715(1) provides:

715(1) Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person (a) is dead, (b) has since become and is insane, (c) is so ill that he is unable to travel or testify, or (d) is absent from Canada,

and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.

[25] At first, the defence consented to the proposal. However, consent was withdrawn when counsel learned that there had not been full disclosure prior to the preliminary inquiry of one of the officer's notes regarding the circumstances surrounding the taking of the original statement. Consequently, counsel had no opportunity to cross-examine that officer on the content of the undisclosed notes. The Crown's motion was fully argued following a voir dire where the officers testified. The trial judge's first ruling was that the Crown could not read in the evidence under s. 715(1)(d).

[26] In his reasons, the trial judge expressed surprise that there was no explanation from the Crown for six occurrences: (1) subpoenas were not served in July or August; (2) the investigating officer did not know the trial date prior to October 4 (the trial judge found this "bizarre"); (3) the investigating officer did not assign anyone to personally serve Mr. Yii, in spite of the importance of his testimony; (4) the investigating officer did not follow up on the status of serving Mr. Yii prior to November 4; (5) the Crown rejected the suggestion that it should pay to bring the witness back; (6) there was no follow-up with the witness's mother in order to solicit her help in reaching him in Singapore.

[27] The trial judge then reviewed in detail the effect of the non-disclosure of the officer's notes before the preliminary hearing. He concluded that there was nevertheless a full opportunity to cross-examine Mr. Yii on all issues at the preliminary hearing within the meaning of s. 715(1). [page331]

[28] The trial judge then turned to the issue of the lack of due diligence by the police and its effect on his residual discretion under s. 715(1) to refuse to allow the preliminary hearing transcript to be read in, based on trial fairness. He reviewed the case law, including the seminal Supreme Court of Canada decision of R. v. Potvin, 1989 130 (SCC), [1989] 1 S.C.R. 52, [1989] S.C.J. No. 24.

[29] That case held that even where the requirements of the section are met, the word "may" used in the section means that the court has a residual discretion to refuse to allow the reading in of the preliminary hearing transcript of the unavailable witness "to prevent any unfairness that could otherwise result from a purely mechanical application of the section": Potvin, at p. 550 S.C.R. The court recognized two main types of "mischief" that could lead to unfairness. The first was unfairness in the manner in which the evidence was obtained, for example, where the witness is temporarily absent from Canada and "the Crown could have obtained the witness's attendance at trial with a minimal degree of effort": Potvin, at p. 551 S.C.R. The second was where the manner of obtaining the evidence was not unfair but its admission against the accused would be.

[30] The trial judge quoted at length from the reasons of Wilson J., including the following important conclusion regarding the residual discretion of the trial judge, at p. 553 S.C.R.:

The protection of the accused from unfairness rather than the admission of probative evidence "without too much regard for the fairness of the adjudicative process" should be the focus of the trial judge's concern. (Citation omitted)

[31] The trial judge noted that besides the due diligence/ minimal degree of effort problem created by the failure of the police to subpoena Mr. Yii before he left the country in September, the appellants took the position that Mr. Yii was one of the attackers and had a motive to lie. According to the testimony he provided under cross-examination at the preliminary hearing, Mr. Yii was told by the detectives when he gave his original statement that he would not be charged if he was not one of the attackers; he therefore had a motive to exculpate himself in his testimony.

[32] The trial judge then discussed other relevant case law before coming to what he characterized as the "key point" in the case, which was that, on November 4, 2004, Mr. Yii said he was willing to return to testify and no effort was made to use the witness's mother to help contact him further to follow up on that offer. This showed a lack of due diligence by the Crown in attempting to obtain the evidence of Mr. Yii. Given the appellants' position on Mr. Yii's role in the attack and his motive to lie, [page332] the trial judge stated: "I am compelled to exercise my discretion not to admit the preliminary evidence of Richard Yii as it would render the trial unfair."

(3) Steps taken after the first ruling

[33] Following this ruling, the police contacted the witness's mother and, through her, Mr. Yii, who by then was in Malaysia. After a number of discussions with the police, which included an offer to pay for his ticket to return, and at least one conversation with his mother, Mr. Yii advised that he would not return to Canada to testify. The Crown then sought to reopen the s. 715(1) motion on the basis that there had now been a material change in circumstances, in that it was now established that the witness was out of Canada and would not be returning to testify.

[34] The appellants objected to reopening the motion on the basis that the Crown in effect used the first motion to find out the gaps in its evidentiary record, then filled those gaps and sought to "redo" the motion. The appellants objected that even if there was a material change in circumstances, the Crown's procedure compromised the fairness of the process. The trial judge rejected this submission and ruled that the motion could be resubmitted.

[35] The trial judge proceeded to hear further evidence from the officers, evidence from the witness's mother and submissions from the Crown and defence. The trial judge ultimately ruled that the Crown had now exercised due diligence and that the evidence could be read in.

[36] In her submissions, trial counsel for Mr. Lau argued that, in light of R. v. Starr, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 2000 SCC 40, s. 715(1) should be regarded as incorporating the principled exception to the hearsay rule so that before a decision is made to read in preliminary inquiry testimony, the court should conduct the same necessity/ reliability analysis as would be required if the same evidence were sought to be admitted under that rule. Counsel then referred to the decisions of R. v. Orpin, 2002 23600 (ON CA), [2002] O.J. No. 1541, 165 C.C.C. (3d) 56 (C.A.) and R. v. O'Connor (2002), 2002 3540 (ON CA), 62 O.R. (3d) 263, [2002] O.J. No. 4410 (C.A.), where this court held, following R. v. Finta, 1992 2783 (ON CA), [1992] O.J. No. 823, 73 C.C.C. (3d) 65 (C.A.), affd on other grounds 1994 129 (SCC), [1994] 1 S.C.R. 701, [1994] S.C.J. No. 26, that necessity could be established only where admitting the hearsay would be the only way the evidence could be heard. In both cases, the court instructed that trial judges must consider other methods of obtaining the evidence where a witness is out of the country, such as by commissioned evidence or by teleconference. [page333]

(4) The second ruling

[37] The trial judge again gave full and extensive reasons for his second ruling, where he reversed his earlier decision and ordered that the preliminary inquiry evidence of Mr. Yii could be read in. In respect of the proper interpretation of s. 715(1) in the context of the principled approach to the hearsay rule, he concluded:

It appears, therefore, that section 715 was drafted by [P] arliament to address necessity and reliability in a balanced manner, including, per Potvin, its application in the case of a witness who is absent from Canada, as long as the prosecution has exercised due diligence and/or at least a minimum degree of effort, as discussed in my ruling of December 2, 2004.

It follows, therefore, that in my view neither statutory interpretation nor the exercise of residual discretion under section 715 should serve to import into section 715 different standards of necessity or reliability which may be relevant to the principled approach in other contexts.

[38] In considering the applicability of the Orpin and O'Connor cases on the issue of necessity, the trial judge held that they did not apply because there would be no advantage to reading in commission evidence over reading in the preliminary inquiry evidence. However, in so holding, the trial judge did not address the possibility of taking the evidence by teleconference, referred to in O'Connor, at para. 57.

(5) Law and analysis

[39] The first question raised on the appeal of this issue is whether the trial judge erred in deciding that he could reopen and reconsider his earlier ruling under s. 715(1).

[40] I see no error in the trial judge's decision to reconsider his earlier ruling based on a material change in circumstances: see La, at para. 28. Procedural and evidentiary rulings are the bread and butter of a trial judge's work in the conduct of a trial, and such rulings are one of the areas where a trial judge exercises significant judicial discretion, based on the principles of order and fairness. In this instance, the trial judge was fully cognizant of the fact that the only circumstance that had changed was that it was now known that the witness was unwilling to travel back to Canada in a timely way, even if the Crown paid his fare. That was sufficient to meet the criterion in La.

[41] The next question is whether the decision of the trial judge to change his ruling and to allow the preliminary hearing evidence of Mr. Yii to be read in was an unreasonable one or was made based on an error of law. [page334]

[42] In 1989, before the Supreme Court held in Starr that the principled approach to hearsay applies to all common law exceptions to the hearsay rule, the court delivered its seminal decision in Potvin on the constitutionality of s. 715(1) of the Code and whether, properly interpreted, the section allows the trial judge a residual discretion not to allow the previous testimony to be entered at the trial even if it meets the criteria of the section.

[43] The court held that s. 715(1) does not breach the accused's fair trial rights provided for by ss. 7 and 11(d) of the Charter. Essentially, as long as the accused had the opportunity to cross-examine the witness at the previous hearing, that satisfies the extent of an accused's right to test the evidence. The court further held that the word "may" in the section gives the court a residual discretion to refuse to allow the previous testimony of an unavailable witness to be read in "where its admission would operate unfairly to the accused": Potvin, at p. 548 S.C.R.

[44] Wilson J. identified two types of unfairness that the court could consider: the first was unfairness in the way the evidence was obtained. It is clear that here Wilson J. was including the way the authorities attempted but failed to obtain the evidence for trial. The first example she offered is where a witness is temporarily out of the country and "the Crown could have obtained the witness's attendance with a minimal degree of effort": Potvin, at p. 551 S.C.R. A second example is where the Crown knew when the witness first testified that he or she would not be available at the trial, but failed to inform the accused so that counsel could have conducted the cross-examination with that in mind.

[45] The second type of unfairness arises from the effect that the admission of the previously taken evidence may have on the fairness of the trial itself. This is the traditional discretion granted to trial judges to exclude evidence where the prejudicial effect of the evidence exceeds its probative value: Potvin, at p. 552 S.C.R.

[46] Functionally, the trial judge first determines whether the section applies, then, if it prima facie applies, there is discretion to nevertheless exclude the evidence, based on the two kinds of unfairness to the accused, unfairness in obtaining the evidence and unfairness in admitting the evidence. But that discretion should be exercised only after weighing the two concerns of fair treatment of the accused and society's interest in getting at the truth at a trial: Potvin, at p. 553 S.C.R. The court rejected the suggestion that another kind of unfairness to the accused exists [page335] where the evidence sought to be admitted is crucial to the Crown's case, which it was in Potvin. [See Note 1 below]

[47] Finally, the court also discussed the warning to the jury that must be given if the evidence is admitted. I will discuss that issue later in these reasons.

[48] Being pre-Starr, the question of whether the pre- conditions for admission under s. 715(1) ought to accord with the necessity/reliability requirement of the principled approach for the admission of hearsay evidence was not an issue addressed by the court in Potvin.

[49] The trial judge in this case appeared to be of the view that the necessity and reliability factors contained in s. 715(1) as well as the trial judge's residual discretion under that section to exclude are not to be informed by the principled approach to hearsay articulated by the Supreme Court in Starr, and later modified in R. v. Khelawon, [2006] 2 S.C.R. 787, [2006] S.C.J. No. 57, 2006 SCC 57. As a result, in exercising his discretion, the trial judge failed to consider whether the minimal efforts required of the Crown to obtain the evidence of the missing witness included taking his evidence by teleconference or by videoconference.

[50] The fact that s. 715(1) is a statutory exception to the hearsay exclusionary rule does not mean that the principled approach can have no role in interpreting and applying it.

[51] In R. v. Wilcox, [2001] N.S.J. No. 85, 2001 NSCA 45, 192 N.S.R. (2d) 159, a related question arose regarding the interpretation and application of s. 30 of the Canada Evidence Act, R.S.C. 1985, c. C-5, which allows for the admission of hearsay evidence that is created in the ordinary course of business. Rather than deciding to admit the evidence pursuant to the statutory provision, Cromwell J.A. applied the principled approach. He chose to do so for two reasons. First, he found, at para. 58, that the words of the statute were open to more than one "reasonable application" to the facts, and so it would be preferable to determine admissibility in light of the principles underlying the hearsay rule. Second, and of greater significance to this case, he stated the following, at para. 58: [page336]

It would take very clear words in the statute to authorize the admission of hearsay evidence that is not necessary and reliable.

[52] In O'Connor, although the appellant conceded necessity because the witness was in the United States, applying the principled approach, the court imposed the strict test for necessity that was articulated in 1992 in Finta and excluded the evidence. O'Connor A.C.J.O. stated, at para. 57:

Despite the appellant's concession, I have serious reservations whether Grodem's statement meets the necessity requirement for the admission of hearsay statements. It is not sufficient for the Crown to simply show that a witness is not compellable because he or she is out of the jurisdiction to satisfy the necessity requirement. Efforts should be made to pursue other options (teleconferencing or taking commission evidence are two) before one reaches the conclusion that admitting evidence by way of hearsay statement is necessary. Necessity cannot be equated with the unavailability of a witness. Rather, it must be shown that hearsay is the only available means of putting the evidence before the court: R. v. Finta (1992), 1992 2783 (ON CA), 73 C.C.C. (3d) 65 at p. 199; R. v. Orpin (2002), 2002 23600 (ON CA), 165 C.C.C. (3d) 56 at pp. 68-73.

[53] It is not necessary to decide in this case whether the Finta standard for necessity ought to be read into s. 715(1) (d). However, consistent with the view expressed in Wilcox, the considerations that inform the application of the principled approach in cases like O'Connor -- and, specifically, the attention given to technological means of taking evidence in that case -- may also inform the exercise of the discretion under s. 715(1).

[54] In this case, related and contiguous provisions of the Code may also guide our understanding of Parliament's intention in respect of the proper interpretation of s. 715(1)(d). The use of audio technology for witnesses who are outside Canada, referred to in O'Connor, is specifically authorized by s. 714.4 of the Code, while the use of video conference technology for such witnesses is provided in s. 714.2.

[55] These sections were added to the Code in 1999 and provide:

714.2(1) A court shall receive evidence given by a witness outside Canada by means of technology that permits the witness to testify in the virtual presence of the parties and the court unless one of the parties satisfies the court that the reception of such testimony would be contrary to the principles of fundamental justice.

(2) A party who wishes to call a witness to give evidence under subsection (1) shall give notice to the court before which the evidence is to be given and the other parties of their intention to do so not less than ten days before the witness is scheduled to testify. . . . .

714.4 The court may receive evidence given by a witness outside Canada by means of technology that permits the parties and the court in Canada to [page337] hear and examine the witness, if the court is of the opinion that it would be appropriate, considering all the circumstances including (a) the nature of the witness' anticipated evidence; and (b) any potential prejudice to either of the parties caused by the fact that the witness would not be seen by them.

[56] It seems to me that when s. 715(1)(d) is read together with ss. 714.2 and 714.4, it is incumbent on a trial judge to include, as a consideration before making the order, the possibility of taking the evidence in a live manner via audio or video technology.

[57] It appears that when he distinguished the Orpin and O'Connor cases, the trial judge considered only the possibility of taking commission evidence and obtaining a transcript which would also have to be read into evidence. He rejected that option because the available hearsay was a transcript of previous testimony under oath where there had been cross- examination. However, the trial judge ignored the possibility of taking Mr. Yii's evidence live before the jury by way of telephone or video link from Singapore or Malaysia.

[58] This was all the more important because the evidence, which was referred to in detail by the trial judge, suggested that Mr. Yii may well have co-operated in giving his evidence electronically. Mr. Yii asked the officer on the phone if there was some other way that his evidence could be heard. I quote the following relevant portion from the ruling:

Detective Thompson testified that on December 7th he received Mr. Yii's telephone number from Detective Charlebois and he called Mr. Yii the same day. He stated that he recognized Mr. Yii's voice and he told Mr. Yii that his testimony was needed at the trial and that the Crown would fly him back to Canada on December 10, 11, January 2 or January 3. The officer stated that Mr. Yii replied that he was busy on December 10 and 11 but January 2 or 3 would be okay.

Mr. Yii then asked what would happen if he didn't return, and the officer told him three things might happen: 1) The court would continue hearing evidence without Mr. Yii; 2) The trial would be adjourned pending Mr. Yii's return to testify; 3) A material witness warrant could be issued for Mr. Yii.

The officer stated that Mr. Yii then asked if there was some other way his evidence could be heard, and the officer replied that the best evidence was from Mr. Yii's own mouth and in person. At that point the officer indicated that Mr. Yii said he would like to telephone his mother before deciding. The officer acceded to that request. The officer called Mr. Yii back later that day and asked for his decision. Mr. Yii stated, "I am not coming. I don't want to come". The officer said he would pass Mr. Yii's answers on to the Crown attorney and ended the call.

[59] In this case, the Crown failed to take minimal efforts to get the witness's evidence before the court through teleconference or [page338] videoconference, a factor that the trial judge did not weigh when exercising his residual discretion under s. 715(1).

[60] It appears that on the facts of this case, the trial judge's discretionary consideration of the minimal efforts that must be taken by the Crown under s. 715(1) overlapped with the necessity analysis of the principled approach. If the Crown does not use sufficient effort to try to get the witness to testify before the jury where the witness may have done so, the court is more likely to find that although he was not in Canada, it was not necessary to read in his preliminary inquiry evidence.

[61] In his original ruling, the trial judge rejected the Crown's request based on the Crown's failure to take the minimal effort required to subpoena Mr. Yii, but also because it had not been finally determined that he would not in fact return to Canada to testify. Essentially, the Crown had not made the minimal effort, nor met the statutory requirement that the witness was necessarily going to be outside of Canada at the time when he was required to testify. The only thing that changed from the trial judge's original ruling was the declared unwillingness of the witness to return to Canada. That was only a relevant change if it meant that the statutory and minimal efforts requirements were now both met. However, because of the failure to pursue the electronic options of teleconference or videoconference, those criteria, as informed by the principled approach, were still not met. As a result, there was no basis for the trial judge to change his original ruling.

(6) Conclusion on the s. 715(1) issue

[62] As the Yii evidence was crucial evidence for the Crown at this trial, this is not a case to apply the proviso under s. 686(1)(b)(iii) of the Code. On the basis of this error alone, I would set aside the convictions and order a new trial.

Issue 3: Was the caution to the jury regarding Mr. Yii's evidence misleading and insufficient?

[63] Once the trial judge ruled that the Crown could read into evidence the transcript of Mr. Yii's preliminary inquiry testimony, extensive submissions were made regarding the content of the caution to be given to the jury. Counsel for Mr. Lau wanted the trial judge to explain to the jury that cross- examination at a preliminary hearing is different than at the trial and, in particular, that there is no attack on the credibility of the witness as that is not an issue in that forum. The trial judge declined to so charge the jury. He composed a caution which he gave mid-trial, both before and after the [page339] testimony was read, and as part of his charge. When he gave the caution in the charge, he added that the evidence could only be read in where there had been a full opportunity at the preliminary hearing for the appellants to cross-examine Mr. Yii, and that there was such a full opportunity.

[64] On this appeal, the appellant Lau submits that the original caution was not sufficient and that the addition in the charge amounted to an error of law. I will deal with this issue and the remaining two only briefly, as I have already determined that a new trial should be ordered and that the transcript of Mr. Yii's evidence should not have been read to the jury.

[65] In Potvin, at pp. 541-46 S.C.R., Wilson J. discussed the differences between the purpose of cross-examination at a preliminary hearing and at a trial, as well as the legitimate tactical decisions made by defence counsel not to disclose their cross-examination strategy to a witness early in the proceedings. She referred to Martin J.A.'s reasons in R. v. Davidson, 1988 7067 (ON CA), [1988] O.J. No. 954, 42 C.C.C. (3d) 289 (C.A.), leave to appeal to S.C.C. refused [1989] S.C.C.A. No. 127, on the subject. This discussion was in the context of considering the constitutionality of s. 715(1) of the Code, and whether the failure of defence counsel to legitimately refrain from a full cross-examination at the preliminary inquiry means reading in that evidence when the witness becomes unavailable deprives the accused of a fair trial. The court concluded, referring to Davidson, at pp. 298-99 C.C.C., that as long as the accused had a full opportunity to cross-examine, his or her fair-trial rights were not impaired, even though the limited cross- examination could "operate to the detriment of the accused": Potvin, at p. 545-46 S.C.R.

[66] On the issue of the caution to the jury, Wilson J. stated, at p. 555 S.C.R., that in such cases the jury should be reminded that they have not had the benefit of observing the witness testify, but that failure to give that warning would not constitute reversible error in every case. She did not address whether an explanation of the differences in the purposes of cross-examination at the two hearings should form part of the caution in every case.

[67] A trial judge has discretion as to the extent of the caution that is given in any particular case. This point arises most commonly with Vetrovec cautions (see, for example, Potvin, at p. 557 S.C.R.), but also applies to other types of cautions: see, for example, R. v. Kerr, 1996 433 (ON CA), [1996] O.J. No. 3771, 94 O.A.C. 70 (C.A.), at para. 14 ("[a] trial judge has a discretion whether to give a warning or caution [with respect to the alleged frailties of a witness's evidence] and this court has repeatedly expressed its reluctance to interfere with the trial judge's assessment of the necessity to [page340] give such a caution"); and R. v. B. (A.) (1997), 1997 1902 (ON CA), 33 O.R. (3d) 321, [1997] O.J. No. 1578 (C.A.), at p. 328 O.R., leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 461 ("the law is clear that the decision to caution the jury [with respect to the age of the charges against the accused in a sexual offences case] is discretionary on the part of the trial judge").

[68] Here, the trial judge told the jury that the issues at a preliminary hearing are different than at trial, including the issue of credibility, and that credibility is only determined by the jury at the trial. It would have been very helpful for him to go on to explain to the jury that there are tactical reasons why defence counsel may not attack the credibility of a witness at a preliminary hearing, and therefore that the cross- examination that was conducted may not have been as extensive as it would have been had the witness testified at the trial. As this is a discretionary matter, the failure to do so did not constitute reversible error.

[69] However, the trial judge did err when he went on to tell the jury in the charge that it was a condition precedent to the admission of the evidence that there had to have been a full opportunity to cross-examine Ritchie Yii at the preliminary hearing and that counsel for the appellants had had such a "full opportunity". As counsel submits, although this statement is technically true, without a further explanation, the jury would not understand that a full opportunity does not mean that there was in fact a full cross-examination, and that there are tactical reasons why defence counsel might not conduct a full cross-examination at that stage of the proceedings.

[70] Although a full opportunity to cross-examine is a condition precedent to admission of previous testimony under s. 715(1), and therefore a legal requirement that is ruled on by the trial judge, such rulings are not normally communicated to the jury. The jury has a separate job to do and could get confused by the fact that the trial judge has made a ruling on admissibility.

[71] In this case, where the trial judge failed to explain the difference between having a full opportunity to cross- examine and conducting a full cross-examination, including on issues of credibility, the jury may well have believed that the latter in fact occurred and that may have influenced their decision regarding accepting Mr. Yii's critical evidence.

Issue 4: Did the trial judge err by discharging the eleventh juror?

[72] The trial commenced on November 8, 2004 and continued into December, when it became apparent that they would have [page341] to break for Christmas holidays and resume in early January 2005. In December, one of the jurors learned that he was admitted to a law school program commencing in January 2005, and the trial judge decided to excuse him. They were therefore down to 11 jurors.

[73] When the trial resumed on Tuesday, January 4, 2005, one of the jurors was not able to come in as he had the flu. However, he indicated that he thought he would be better by the next day. Another juror had a funeral to attend the next day, and consequently the trial would not be proceeding until the afternoon on the Wednesday. Finally, another juror had earlier advised the court that he was an Orthodox Jew and would not be able to deliberate past 3:00 p.m. on a Friday or all day on a Saturday.

[74] The trial judge was concerned that they proceed with the closing addresses on Tuesday, January 4 so that he could give his charge Wednesday afternoon, leaving the jury with enough time to deliberate and hopefully reach their verdict before 3:00 p.m. on Friday. As a result, he did not want to waste Tuesday, January 4 by waiting for the ill juror. He decided, over the objection of counsel for Mr. Li, to discharge the ill juror.

[75] Section 644(1) of the Code allows the discharge of a juror who is ill. The section provides:

644(1) Where in the course of a trial the judge is satisfied that a juror should not, by reason of illness or other reasonable cause, continue to act, the judge may discharge the juror.

[76] Subsection (2) provides that as long as ten jurors remain, the trial may continue to verdict.

[77] The decision whether to discharge a juror who is ill once the trial has commenced, as long as ten jurors remain, or to adjourn the trial and wait for the juror to get better is a matter for the discretion of the trial judge. The Supreme Court of Canada has stated as a general principle that an accused person should not be lightly deprived of the right to be tried by a jury of 12, and that the accused's counsel should have an opportunity to make submissions on the question of discharge: see R. v. Chambers, 1990 47 (SCC), [1990] 2 S.C.R. 1293, [1990] S.C.J. No. 108, at pp. 1304-1306 S.C.R., following R. v. Basarabas, 1982 216 (SCC), [1982] 2 S.C.R. 730, [1982] S.C.J. No. 96. Nevertheless, the Code clearly allows the trial judge to excuse an ill juror in order to allow the trial to proceed.

[78] In this case, the trial judge considered the position of Mr. Lau's counsel, who did not object, as well as Mr. Li's counsel, who did object to the discharge of the 11th juror. He made his decision based on the exigencies of timing that arose following the Christmas break, and his view that optimally the case would [page342] conclude by Friday afternoon with a verdict. Although the judge could have waited until the next day to see if the ill juror returned, especially because he was the 11th juror and his discharge would leave no more room for contingencies, he was not obliged to do so. I would not give effect to this ground of appeal.

Issues 5 and 6: Did the trial judge err by giving the jury three selected portions of the charge in writing several hours into the deliberations, including the six routes by which each of the appellants could be a party to the offence?

[79] As part of the charge, the trial judge explained three routes by which both accused could be found to be a party to the offence charged, two further routes by which only Mr. Li could be a party and one route by which only Mr. Lau could be a party. He also charged on the common purpose doctrine and, in that context, on how statements allegedly made by Mr. Li and by some non-parties could be used against Mr. Lau.

[80] Following the charge, the trial judge decided to provide written versions of these portions of the charge to the jury. In respect of the six routes to party liability, he stated that that portion was "quite complicated" and that he did not know "how they could possibly have kept that in their head". There was objection by counsel to the trial judge's proposal and to the content of what was provided. Eventually, counsel worked with the trial judge to make some modifications to the oral charge, which were included in what was given to the jury. These discussions delayed the delivery of the three written portions to the jury for several hours into the deliberations. At no point did the jury ask for any clarification.

[81] On the appeal, the appellant Lau objects to the charge on the six routes to party liability. Those six routes were (1) actual participation (s. 21(1)(a)); (2) aiding (s. 21(1)(b)); (3) abetting (s. 21(1)(c)); (4) common intention (s. 21(2)); (5) counselling (s. 22(1)); (6) counselling additional offences that were known or ought to have been known (s. 22(2)). He submits that although technically each route was legally potentially available, the charge was overly complicated, and that the trial judge should have taken a more functional approach as is the case when charging on self- defence: see R. v. Pintar (1996), 1996 712 (ON CA), 30 O.R. (3d) 483, [1996] O.J. No. 3451 (C.A.), at p. 493 O.R.

[82] The complication was particularly distracting when the real issue in the case and the theory of the Crown from his closing address was whether the two accused actually participated in the assault on Mr. Law and whether the appellant Lau used a lead pipe. Counsel objected to this portion of the charge, [page343] in particular, because it might have left the jury with the impression that mere presence at the attack was sufficient for party liability. Counsel also objected to giving that portion of the charge to the jury in writing.

[83] On the appeal, the appellant Li objects to the trial judge giving all three of the written instructions to the jury several hours into their deliberations. He also objects to the fact that this was done without including the instruction on the presumption of innocence and reasonable doubt. He submits that this compromised the fairness of the trial.

[84] In R. v. Poitras (2002), 2002 23583 (ON CA), 57 O.R. (3d) 538, [2002] O.J. No. 25 (C.A.), Doherty J.A. approved the possibility of providing some portions of the instructions to the jury in writing in order to assist them with complicated legal instructions. However, when only part or parts of the oral charge are given to the jury in writing, it is essential that those parts be complete, that they be accurate and that they be fair and balanced. The trial judge should also include the charges on the presumption of innocence and on reasonable doubt, which are fundamental legal principles applicable in every case.

[85] In my view, the trial judge erred in this case by giving the jury the three portions of the charge in writing, both in the manner and timing of their delivery to the jury and in their content in the circumstances of this case. From the record, it appears that one copy of the written portions of the instructions, labelled "A", "B" and "C", was sent into the jury room several hours into the deliberations. [See Note 2 below] There had been no question from the jury or request for clarification. Nor was the delivery accompanied by any explanation, although the trial judge had mentioned in his charge that he would likely be giving the jury parts of the charge in writing.

[86] Once the jury was well into their deliberations, one cannot know what issues they had already covered or decisions they had already reached. By sending in only some written instructions at that point, it is likely that the effect would be to put emphasis on them. Here, the content of the instructions was the routes to party liability as well as methods by which the jury could use the statements of the co- accused or others as part of the evidence to substantiate that liability. Importantly, these instructions were not balanced by the instruction on the presumption of innocence. And, although there are a number of references to proof beyond a reasonable doubt contained within [page344] them, those references do not emphasize the need for the Crown to prove guilt beyond a reasonable doubt as an overarching principle. Including written instructions on both these points would have acted as a necessary balance to the portions that were in fact provided which, when read in isolation, can be viewed as highlighting the Crown perspective.

[87] Finally, Crown counsel on the appeal has properly pointed out that there is a legally important omission in written portion "B" of what was delivered to the jury. That portion, which is headed "Admissibility of Statements Made by Non-Accused Persons", discusses the two-step procedure for when a statement can be used against an accused where there is a common unlawful purpose. Under the second step of the procedure, where the jury determines if the accused was probably a member of the common purpose group, the instruction omits the fact that only evidence directly admissible against the particular accused can be considered at that stage.

[88] Crown counsel submits that the error was not significant and that the proviso can apply. Counsel points out that the same error was not made in the oral instruction and that because of when the various statements were made, it is unlikely the jury used the evidence improperly. Also, written instruction "B" refers back to written instruction "A", which dealt with the use of the statements of co-accused, and where the second step was accurately stated.

[89] I thank Crown counsel for pointing out this error. In my view, it is not one that can be cured by the proviso. The inaccuracy in the written instructions could not help but add to the complication of these particularly legally difficult portions of the charge and could very likely have caused confusion. There can be no comfort taken from the fact that instructions "A" and "B" differed. If the jury did notice the difference, they would not know which was correct.

[90] When the foregoing is taken together with the failure to provide in writing the fundamental instructions on the presumption of innocence and reasonable doubt, the timing of providing these materials to the jury, and the overall complication of what was provided, in my view the result of this procedure was to cause an unfairness in the trial. Conclusion

[91] Based on the error in admitting the evidence of Mr. Yii under s. 715(1)(d) of the Code, the error in the caution to the jury regarding that evidence, as well as the error in providing [page345] the partial written instructions to the jury, I would allow the appeal, set aside the convictions and order a new trial.

Appeal allowed.

APPENDIX "A"

When Statements Made by Accused Person are Admissible Against a Co-Accused

Generally, anything a charged person says to a witness is only evidence against the person who allegedly said it.

One exception to this rule is if the statement was made in the presence of another accused person who apparently acted upon it.

A second exception to this rule is when two or more persons are acting together with a common unlawful purpose and the words alleged were spoken to further the unlawful common purpose.

To determine whether or not the exception applies, the law has established a separate two step procedure within the trial.

Before commencing the two step procedure, however, it should be noted that all of the alleged statements by Mr. Li were reported only by Mr. Yii and, accordingly, an assessment of Mr. Yii's credibility and reliability, generally and in relation to each of these statements specifically, within the context of all of the evidence, would be a logical initial step because there is no point in going through the 2 step procedure with respect to evidence that you might later find not to be credible and reliable.

If you proceed to the two step procedure, the first step is to determine whether or not, based on all of the evidence you find to be credible and reliable, including the alleged statements by Mr. Li, if you find as a fact that some or all of those alleged statements were made, the Crown has proven, beyond a reasonable doubt that Mr. Li and at least one other person had a common unlawful purpose at the time the statements were made. Examples of a possible common unlawful purpose in this case would be to assault or threaten bodily harm to Mr. Law.

In order to determine this first question, i.e. whether or not a common unlawful purpose existed, you should consider all of the evidence you consider to be credible, including the alleged statements made by Mr. Li, if you find as a fact that some or all of those statements were made. If based on all of the evidence, you have a reasonable doubt whether or not at least one other person, including any of the various parties who have been mentioned in the evidence such as Mr. Lau, Mr. Chu, Mr. Yoon, Mr. Yii, Chi Lam Chu, Derek Law, S.E., and others, had a common unlawful purpose with Mr. Li, then you must not consider Mr. Li's statements as evidence against Mr. Lau. On the other hand, if you conclude, beyond a reasonable doubt, that Mr. Li did have an unlawful common purpose with at least one other person, then you should proceed to the second step of the procedure.

The second step, which can only be reached by passing through the first step, is to determine whether or not the Crown has proven, based only on the evidence you find credible and reliable describing Mr. Lau's conduct, including his conduct subsequent to any statements made in his presence, [page346] and the alleged statement by Mr. Lau to Mr. Law, that Mr. Lau was probably part of the group that had the common unlawful purpose. If you conclude that Mr. Lau was probably a member of the group with the unlawful common purpose then you may consider any statements alleged to be made by Mr. Li, that you find credible and reliable, while Mr. Lau was probably part of the group, as evidence against Mr. Lau. On the other hand, if you do not conclude, based on Mr. Lau's alleged conduct and alleged statement, that Mr. Lau was probably part of the group with the unlawful common purpose then you may not consider Mr. Li's statements, other than those made in Mr. Lau's presence, as evidence against Mr. Lau.

In this case, there is no evidence indicating that Mr. Lau had any involvement in this matter prior to him allegedly being at President Snookers. Accordingly, even if the Crown could prove that Mr. Li was part of a common unlawful purpose with someone else prior to going to President Snooker, the alleged statement by Mr. Li to Mr. Yii, which Mr. Yii alleges was made over the telephone prior to going to President Snookers, could not be admissible against Mr. Lau because there is no evidence, in relation to the second step of the procedure, indicating that Mr. Lau was probably a part of such an unlawful common purpose prior to Mr. Li being at President Snookers.

Accordingly, the first alleged statement made by Mr. Li to Mr. Yii, that "we were going to look for Billy." or "he wanted to go hunting Billy" is only admissible against Mr. Li.

On the other hand, the other statements alleged to have been made by Mr. Li outside the presence of Mr. Lau are potentially admissible against Mr. Lau, subject to the two step procedure, and subject to you finding as you might or might not, that the statements were made in furtherance of an unlawful purpose.

Minor changes have been made to these instructions at the request of some counsel.

APPENDIX "B"

Admissibility of Statements Made by Non-Accused Persons

There has been evidence of a statement made by Guppy at President Snookers and of a statement made by Ken Chu outside Virtual Domain to Richard Yoon.

The same rules in relation to statements made by a co-accused person, apply with respect to statements made by non-accused persons.

Such statements are not admissible against an accused person unless the statement was made in the presence of the accused who acted upon it or if the speaker was a member of a group of two or more persons with a common unlawful purpose, to which the accused also belonged, and the statement was made in furtherance of the common unlawful purpose.

A two step procedure, similar to the procedure in relation to statements made by a coaccused, is used to determine whether or not the second kind of statement by a nonaccused person is admissible against an accused.

First the Crown must prove, beyond a reasonable doubt, based on all of the evidence that you find to be credible and reliable, including the [page347] statement, if you find it credible and reliable, that a common unlawful common purpose to which the speaker belonged, with at least one other person, existed. Second, if the first step is satisfied beyond a reasonable doubt, the Crown must also prove that the accused was probably part of the group with the common unlawful purpose at the time the statement was made. If both steps are proved, then, if you find that the statement was made in furtherance of the unlawful common purpose, the statement allegedly made by the non-accused person is admissible against the accused.

This analysis must be carried out separately in relation to each accused person.

Once again, the initial issue to be considered should be whether or not Mr. Yii's evidence in this regard is credible and reliable.

Similarly, Mr. Yoon alleges that outside Virtual Domain Mr. Chu said to him words to the effect that: "some people are going to drag Billy outside to be beaten". Given that Mr. Yoon indicated that this was said to him privately by Mr. Chu, however, only the two stage process exception need be considered, because there is no evidence that Mr. Lau or Mr. Li heard this alleged statement.

Once again, the procedure is only useful if you first find that Mr. Yoon's evidence in this regard is considered credible and reliable. This, of course, is entirely up to you.

Minor changes have been made to this instruction at the request of some counsel.

APPENDIX "C"

Means of Being a Party to an Offence

The law provides a number of legal means by which one may find that more than one person is guilty of the same offence. Each of them is an alternative means. That is to say, if all jurors on a jury are satisfied that any one (or more) of the means has been proven beyond a reasonable doubt in relation to a particular accused person, then the essential element of being a party to the offence has been proven.

In this case there are 6 such means of being a party to the offence to consider.

1. First, everyone is a party to a criminal offence who actually commits it. As discussed, S.E. was a party to an aggravated assault upon Mr. Law because he assaulted Mr. Law in circumstances that he knew or a reasonable person would inevitably know that there was a reasonable risk of bodily harm resulting to Mr. Law.

If you find, beyond a reasonable doubt, that Mr. Lau and/or Mr. Li assaulted Mr. Law in circumstances knowing or where a reasonable person would inevitably have known that there was a reasonable risk of bodily harm to Mr. Law then you should find whoever in relation to whom you make that finding, guilty of count # one.

If you have a reasonable doubt as to whether or not either man assaulted Mr. Law himself; then you must go on to consider the [page348] next means to be a party. If, on the other hand you do not have a reasonable doubt that either man assaulted Mr. Law himself, then you must go on to consider whether, before or during the assault, as opposed to afterward, based on all the evidence admissible against that man, that man knew or a reasonable person would inevitably have realized in the circumstances, that there was a reasonable risk of bodily harm to Mr. Law.

In this regard, you should consider all of the evidence against each accused man.

Once you determine what evidence you accept and what evidence is admissible against each accused, you should consider each accused separately under this means of being a party to determine if his involvement was of this nature.

2. Second, the law provides that everyone is a party to a criminal offence who does anything for the purpose of aiding (i.e. intentionally assisting) any person to commit it. Merely being present during an offence, however, without intentionally assisting someone commit it is not aiding.

In this context, you may wish to consider whether or not the Crown has proved beyond a reasonable doubt that Mr. Lau aided S.E. to commit an aggravated assault.

3. Third, everyone is a party to a criminal offence who abets (i.e. intentionally encourages by words and/ or conduct) any person in committing it. Merely being present during an offence, however, without actually encouraging, by words and/or conduct, any person in committing a criminal offence, is not abetting.

In the context of this case you may wish to consider whether or not the Crown has proved beyond a reasonable doubt that Mr. Lau and/or Mr. Li intentionally encouraged S.E. to commit an aggravated assault.

4. Fourth, where two or more persons form an intention in common to carry out an "assault" (as defined earlier) or a "threat of bodily harm" (as defined earlier), and to assist each other therein, and any one of them, in carrying out that common purpose, commits an "aggravated assault" (as defined earlier), each of them who knew or ought to have known that the commission of an "aggravated assault" (as defined earlier) would be a probable consequence of carrying out the common purpose of "assault" or "threat of bodily harm" is a party to the aggravated assault.

The analysis in relation to this means of being a party is similar to the two stage process described earlier -- but it is different. It is a four stage process with the same onus throughout.

First, the Crown must satisfy you beyond a reasonable doubt, based on all of the evidence, that two or more persons had the common intention to carry out an assault or a threatening of bodily harm upon Billy Law in Virtual Domain.

Second the Crown must satisfy you, beyond a reasonable doubt, based on all of the evidence admissible against the accused you are considering, that the accused you are considering was a [page349] member of the group, which can be as small as a group of two people, including the accused, had such an intention.

Third, the Crown must satisfy you, beyond a reasonable doubt, that a member of the group committed an "aggravated assault" upon Billy Law.

Finally, the Crown must satisfy you, beyond a reasonable doubt, that the accused you are considering either knew or ought to have known that the commission of an "aggravated assault" upon Billy Law would be the probable consequence of carrying out the common intention of assault or threat of bodily harm.

This fourth requirement can be re-stated to include the definition of aggravated assault in the following way:

You must consider all of the evidence in relation to both Mr. Lau and Mr. Li if you are considering this means of being a party.

5. Fifth, where a person counsels (i.e. intentionally incites or intentionally solicits) another person to be a party to a criminal offence and that other party is afterwards a party to that criminal offence, the person who counseled is party to that criminal offence, even if the criminal offence was committed in a way different from that which was counselled.

This means of being a party has no possible application to Mr. Lau as there is no evidence of him counselling anyone. On the other hand, you may find that the Crown has proved beyond a reasonable doubt that Mr. Li counselled S.E. to commit an aggravated assault.

6. Sixth, everyone who counsels (as defined earlier) another person to be a party to an "assault" (as defined earlier) or a "threat of bodily harm" (as defined earlier) is a party to any "aggravated assault" (as defined earlier) that the other commits in consequence of the counselling, that the person knew or ought to have known was likely to be committed in consequence of the counselling.

Once again, this means of being a party could only apply to Mr. Li if you find that the Crown has proved, beyond a reasonable doubt, that he counselled S.E. to commit an assault or a threat of bodily harm upon Billy Law and S.E. actually committed an aggravated assault upon Mr. Law that Mr. Li knew or ought to have known was likely to be committed in consequence of the counselling.

I remind you that each of these six means of being a party is an alternative means. The Crown must satisfy you, beyond a reasonable doubt, that at least one of these six means has been proved in relation to an accused in order for that accused to be found guilty of count # 1. The Crown need not satisfy all of you that it has proved, beyond a reasonable doubt, the same means in relation to an accused. As long as the Crown has satisfied each of you, beyond a reasonable doubt, that it has proved one of these means against an accused, you must find that accused guilty of count # 1 if you have also been satisfied, beyond a reasonable doubt, that all of the other essential elements of count # 1 have been proved by the Crown. [page350]

On the other hand, if the Crown has failed to prove at least one of the six means beyond a reasonable doubt in relation to an accused, then that accused must be found not guilty of count # 1.

Finally, if the Crown has failed to prove any of the essential elements of count # 1 beyond reasonable doubt in relation to an accused, you must find that accused not guilty.

Minor changes have been made to these instructions at the request of counsel.

Notes

Note 1: In Potvin, three people had planned to rob the victim. They attended her home and she ended up dead. At the appellant's trial, the Crown sought to read in the preliminary inquiry testimony of one of the other assailants, who had refused to testify at the trial. His evidence was critical as he was an eyewitness. It was the appellant's position that the witness was in fact the murderer.

Note 2: Instructions "A", "B" and "C" are attached as an appendix to these reasons.