Her Majesty the Queen v. Precup

[Indexed as: R. v. Precup]

Ontario Reports

Court of Appeal for Ontario,

Cronk, Epstein and Lauwers JJ.A.

June 19, 2013

116 O.R. (3d) 22 | 2013 ONCA 411

Case Summary

Criminal law — Evidence — Character evidence — Accused convicted of dangerous driving causing death and leaving scene of fatal accident — Defence leading evidence of psychiatrist that schizophrenia may have accounted for accused's conduct — Crown cross-examining defence psychiatrist based on accused's medical records about prior [page23 ]physical altercations involving accused — Psychiatrist agreeing with Crown that accused had anger management issues — Trial judge erring by failing to instruct jury that this hearsay was not admissible for its truth, on the limited permissible use of that bad character evidence and by not giving remedial instruction when Crown's address invited jury to engage in prohibited propensity reasoning based on bad character evidence — Appeal allowed and new trial ordered.

The accused was charged with dangerous driving causing death and failing to stop at the scene of a fatal accident. At trial, a defence psychiatrist offered his opinion that the accused suffered from chronic paranoid schizophrenia and that the negative symptoms of that illness may have affected his ability to appreciate the risk caused by his driving on the night in question. On cross-examination, the Crown elicited information, based on entries in the accused's medical records, of prior physical altercations involving the accused. The psychiatrist agreed with the Crown's suggestions that the accused was volatile, had serious anger management issues, and had engaged in random and unprovoked acts of aggression towards strangers. In his closing address to the jury, Crown counsel suggested that the psychiatrist's evidence established that there was "no doubt" that the accused had anger management issues apart from his schizophrenia, that his schizophrenia was being professionally monitored and was asymptomatic, and that his inability to control his anger, not his illness, led him to commit the offences. The accused was convicted. He appealed.

Held, the appeal should be allowed.

The trial judge erred in his treatment of the psychiatrist's evidence that tended to show that the accused had a propensity for violence. The charge failed to instruct the jury on the limited permissible use of bad character evidence and failing to tell the jury that the evidence at issue was based on hearsay, which could not be relied upon for the truth of its contents. Further, a remedial instruction was required after the Crown invited the jury to engage in prohibited propensity reasoning. The trial judge's non-directions were fatal to the jury's verdicts. The curative proviso in s. 686(1) (b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 could not be applied to uphold the convictions. A new trial was required.

Cases referred to

R. v. Daley, [2007] 3 S.C.R. 523, [2007] S.C.J. No. 53, 2007 SCC 53, 369 N.R. 225, [2008] 1 W.W.R. 1, J.E. 2008-30, 302 Sask. R. 4, 226 C.C.C. (3d) 1, 288 D.L.R. (4th) 1, 52 C.R. (6th) 221, EYB 2007-127250, 75 W.C.B. (2d) 727; R. v. Handy (2002), 61 O.R. (3d) 414, [2002] 2 S.C.R. 908, [2002] S.C.J. No. 57, 2002 SCC 56, 213 D.L.R. (4th) 385, 290 N.R. 1, J.E. 2002-1226, 160 O.A.C. 201, 164 C.C.C. (3d) 481, 1 C.R. (6th) 203, 53 W.C.B. (2d) 286; R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, [1997] S.C.J. No. 21, 143 D.L.R. (4th) 433, 207 N.R. 246, J.E. 97-457, 157 N.S.R. (2d) 161, 113 C.C.C. (3d) 1, 4 C.R. (5th) 280, 33 W.C.B. (2d) 348; R. v. Philip, [2010] A.J. No. 256, 2010 ABCA 79, 252 C.C.C. (3d) 478, 477 A.R. 380; R. v. Prokofiew, [2012] 2 S.C.R. 639, [2012] S.C.J. No. 49, 2012 SCC 49, 266 C.R.R. (2d) 355, 96 C.R. (6th) 57, 296 O.A.C. 1, 435 N.R. 1, 2012EXP-3620, J.E. 2012-1942, 2012 G.T.C. 1053, [2012] G.S.T.C. 98, 290 C.C.C. (3d) 280, 353 D.L.R. (4th) 267, 104 W.C.B. (2d) 190; R. v. S. (J.), [2012] O.J. No. 4751, 2012 ONCA 684, 296 O.A.C. 184, 292 C.C.C. (3d) 202, 104 W.C.B. (2d) 189

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, s. 686(1) (b)(iii) [page24 ]

Authorities referred to

Watt, David, Helping Jurors Understand (Thomson Carswell, 2007)

APPEAL by the accused from the conviction entered by Kealey J. of the Superior Court of Justice, sitting with a jury, on May 20, 2011.

Michael A. Crystal, for appellant.

Greg Skerkowski, for respondent.

The judgment of the court was delivered by

CRONK J.A.: —

I. Introduction

[1] Following a trial by judge and jury, the appellant was convicted of dangerous driving causing death and failing to remain at the scene of an accident that resulted in death. He was sentenced to two years less one day imprisonment, plus three years probation. A three-year driving prohibition was also imposed. The appellant appeals from his convictions.

[2] Although the appellant raised various grounds of appeal in his factum, during oral argument he narrowed the focus of his appeal to one main issue -- whether the trial judge erred in his treatment of bad character evidence concerning the appellant.

[3] The evidence in question emerged on cross-examination at trial of a defence psychiatrist, who offered his opinion concerning the appellant's mental illness and its effect on the appellant's state of mind and conduct at the time of the collision. During cross-examination of this witness, the Crown elicited evidence, based on information in the appellant's medical records, tending to show that the appellant has a propensity for violence.

[4] The appellant asserts that the trial judge erred in his treatment of the witness's evidence regarding this information: (1) by failing to instruct the jury on the limited permissible use of evidence of bad character, including by failing to tell the jury that the evidence at issue was based on hearsay, which could not be relied upon for the truth of its contents; and (2) by permitting Crown counsel, without a remedial instruction, to invite the jury to engage in prohibited propensity reasoning.

[5] For the reasons that follow, I conclude that the trial judge did err in the ways urged by the appellant. In my view, the trial judge's non-directions are fatal to the jury's verdicts. The Crown does not suggest that the curative proviso of s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 can be applied to uphold the appellant's convictions. Accordingly, a new trial is required. [page25 ]

II. Factual Background

(1) The incident

[6] The charges against the appellant arose from a late-night driving incident in the City of Ottawa. While the appellant was stopped in his sports car (a Mazda RX-8) at a red light, an apparently intoxicated pedestrian, Mitchell Anderson, wandered in front of the vehicle. Mr. Anderson made gestures at the car, seemingly in admiration of the vehicle. It appears that he stood in front of the car and either touched the hood with his hand or possibly kissed his hand and then touched the hood. He did not approach the appellant or the appellant's girlfriend, who was seated in the front passenger seat. Nor did he directly threaten the appellant or his girlfriend in any way.

[7] It is undisputed that when the light changed to green, the appellant drove away from the intersection at a high rate of speed. Several witnesses to the collision testified at trial. They said that as the appellant left the scene, they saw his vehicle fishtail, heard the sound of screeching tires, smelled burning rubber and observed that the appellant's car appeared to be out of control.

[8] Mr. Anderson was struck by the appellant's car as it proceeded through the intersection. On impact, Mr. Anderson was thrown into the air and fell to the ground, striking his head. Tragically, he died shortly thereafter from his resulting head injuries. The appellant learned of Mr. Anderson's death some days later.

[9] The police interviewed the appellant about the collision because he was one of only a limited number of people in Ontario who owned a vehicle similar to the car that struck Mr. Anderson. In his initial police statement, the appellant denied any involvement in the collision. The appellant repeated this denial in a second police statement given several months later.

[10] However, about five months after the collision, the appellant gave a third statement to the police. In this statement, he acknowledged for the first time that he was the driver of the car on the night in question and that his girlfriend was present at the time. He acknowledged seeing Mr. Anderson and maintained that he was worried by his behaviour because "[h]e didn't seem right". He said that Mr. Anderson moved on after a few moments, out of his sight. Only then did he move his car forward, through the intersection, after the light turned green.

[11] In a statement given to the police at about the same time, the appellant's girlfriend (now his wife) confirmed the appellant's version of events. In contrast, at least one eyewitness to the collision testified at trial that Mr. Anderson was still in [page26 ]front of the appellant's car when the appellant drove away from the intersection on a green light.

(2) The evidence of mental illness and bad character

[12] Neither the appellant nor his girlfriend testified at trial. The defence called Dr. Reghuvaran Kunjukrishnan, a psychiatrist at the Royal Ottawa Medical Centre, who testified concerning the appellant's mental illness and the effect of that illness on the appellant's state of mind and conduct during the collision. Prior to trial, Dr. Kunjukrishnan had conducted a psychiatric assessment of the appellant, interviewed the appellant's wife and reviewed the appellant's previous medical records from the Royal Ottawa Medical Centre.

[13] During his examination-in-chief, Dr. Kunjukrishnan offered the opinion that the appellant has suffered from chronic, paranoid schizophrenia since 1996, for which he has received medical treatment over the years, including anti-psychotic medications. Dr. Kunjukrishnan said that although the positive symptoms of the appellant's mental illness were in partial remission, the negative symptoms of the illness, including social anxiety, hyper-vigilance and paranoia, persist. According to Dr. Kunjukrishnan, these negative symptoms may have affected the appellant's ability to appreciate the risk caused by his driving on the night in question, and accounted for the manner of his departure from the intersection.

[14] Dr. Kunjukrishnan also testified that the appellant told him that: (1) Mr. Anderson was acting in a bizarre and threatening manner; (2) he feared that Mr. Anderson might attack him or his girlfriend; (3) he drove away from the scene rapidly in order to flee from the threat posed by Mr. Anderson; and (4) he did not realize at the time that Mr. Anderson had been struck by his car.

[15] Dr. Kunjukrishnan indicated that he had considered anger management issues as a possible diagnosis for the appellant, based on reports in the appellant's medical records of past incidents of friction, arguments and some minor physical altercations between the appellant and his wife. He attributed these incidents to the appellant's underlying schizophrenic illness rather than to any independent anger management problems.

[16] On cross-examination, the Crown challenged the extent of Dr. Kunjukrishnan's knowledge of the appellant's psychiatric condition and medical history. The Crown also attacked his claims that the appellant had no independent anger management problem, that schizophrenia was his prevailing psychiatric condition on the night in question, and that his prior violent behaviour towards his wife was only minor in nature. [page27 ]

[17] In so doing, the Crown elicited information from Dr. Kunjukrishnan, based on entries in the appellant's medical records, of various prior physical altercations between the appellant and a co-worker, strangers on a bus, the appellant's three-year old nephew, a convenience store owner and the appellant's wife (the "Prior Incidents").

[18] Crown counsel suggested to Dr. Kunjukrishnan that some of these Prior Incidents, which the Crown described as "aggressive outbursts", indicated that the appellant: (1) had reacted "inappropriately, with anger" on some occasions; (2) is "volatile" and has "a hair trigger, in terms of [his] temper"; (3) has had consistent anger management issues, notwithstanding other "psychotic disorders", for 15 years; (4) has exhibited "signs of serious anger issues"; and (5) had engaged in "random acts of aggression towards strangers . . . with no provocation". Dr. Kunjukrishnan agreed with each of these suggestions.

(3) Defence pre-charge objection

[19] After the completion of Dr. Kunjukrishnan's testimony, the defence closed its case. The Crown offered no reply evidence and the jury was excused for lunch prior to the closing submissions of counsel. The trial judge then indicated that he intended to provide counsel with a draft of his jury charge "in the areas that may be of concern to [them]", including those parts of the charge relating to Dr. Kunjukrishnan's evidence.

[20] A short time later, after the trial judge had provided the draft charge to counsel, defence counsel voiced concern regarding the instructions to be provided to the jury pertaining to the Prior Incidents. The following exchange occurred:

MR. GIANCATERINO: Sure. Can I just ask Your Honour one question. I mean we've heard a little bit about it this afternoon, I don't think it became an issue until this afternoon, but the -- I guess that what I would classify as bad character evidence of Doctor -- Vlad Precup -- my friend had read out some passages to Doctor Kunjukrishnan detailing some violence, detailing some other acts, I'm not sure whether or not we anticipated that coming out in terms of this draft, but I think there has to be a specific type of warning or instruction to the jury of the use that they can make of that . . . .

THE COURT: That's not evidence. He was really out to cross-examine -- this is part of the record -- the medical records that he got late.

MR. GIANCATERINO: Right.

THE COURT: He's reading to the doctor what was in the medical records, some of -- I mean -- and then he said he didn't -- he read some of it, he didn't read all of it, but I mean it was just to alert him to another side to Mr. Precup. [page28 ]

MR. GIANCATERINO: Well, my concern is that the jury might make bad use -- like they may misuse that evidence.

THE COURT: Well, I told -- and I'll tell the jury again and I may specifically identify -- I mean those are part of the medical records that were read to -- it also is not evidence, it's just -- it's to suggest to Doctor [Kunjukrishnan] that maybe he didn't know everything about this man that he was testifying about.

MR. GIANCATERINO: That's fine.

(Emphasis added)

(4) Crown counsel's closing address

[21] During his closing address to the jury, Crown counsel at trial (not counsel on appeal) urged the jury to conclude that the appellant's conduct at the time of the collision was unrelated to his schizophrenia, which was being treated by medication under the supervision of health care professionals. He told the jury that the appellant's "anger management problem has nothing to do with his mental illness. It has everything to do with his impulsivity and his volatile nature and his hair trigger temper."

[22] Later in his address, Crown counsel suggested that Dr. Kunjukrishnan's evidence established that there was "no doubt" that the appellant has anger management issues apart from his schizophrenia. Counsel told the jury:

But you all heard how the anger management issues remain. [Dr. Kunjukrishnan] even said Mr. Precup is volatile. Well, we know that. We know Mr. Precup is volatile. He has a hair trigger. It doesn't take much for him to hurt someone.

(Emphasis added)

[23] Elsewhere in his closing, Crown counsel invited the jury to consider the appellant's conduct in this fashion:

Again, ask yourselves about his behaviour after the incident as well as during the incident when you're determining his guilt. Ask yourselves about his lack of symptoms; about his professionally monitored treatment; and about his separate anger management issue. That will surely lead you down a path to finding Mr. Precup guilty beyond any reasonable doubt for dangerously driving and causing the death of Mr. Anderson as well as fleeing the scene.

(Emphasis added)

[24] Crown counsel returned to this theme at the end of his closing address. He concluded with these remarks:

A man obsessed by his vehicle, a man who treats it as an extension of himself, felt his integrity violated when Mitch Anderson merely touched the hood of his car. His reaction wasn't based on schizophrenia. His reaction was of a man angered by the boldness of this stranger touching his car. His inability to manage his anger is a function not of his disease, but of his own personality. [page29 ]

He employs physical violence to sort out his issues. And when you apply your common sense to the evidence you've heard, you will know beyond a reasonable doubt, that Vlad Precup is guilty of both of these offences.

(Emphasis added)

III. Issues

[25] As advanced during oral argument, there is one main issue on appeal. The appellant argues that the trial judge erred in his treatment of the information concerning the Prior Incidents and Dr. Kunjukrishnan's related evidence: (1) by failing to properly instruct the jury on the limited permissible use of that evidence, including failing to tell the jury that the information regarding the Prior Incidents on which the evidence was based was hearsay, which could not be relied upon by the jury for the truth of its contents; and (2) by permitting Crown counsel, without a remedial instruction, to invite the jury to engage in prohibited propensity reasoning.

IV. Analysis

[26] The appellant concedes that once the defence led expert evidence that his schizophrenia might have affected his appreciation of the risk of his driving and accounted for the manner of his driving at the time of the incident, it was open to the Crown to challenge Dr. Kunjukrishnan's diagnosis of schizophrenia and to explore the alternative diagnosis of anger management.

[27] I agree. The defence relied on Dr. Kunjukrishnan's evidence to suggest that the appellant suffered from a psychiatric condition that cast doubt on his culpability for the offences charged. Dr. Kunjukrishnan's evidence thus put the appellant's psychiatric condition on the night in question in play.

[28] Dr. Kunjukrishnan identified a possible differential diagnosis of anger management issues for the appellant, grounded in his evaluation of the appellant and his review of the historical entries in the appellant's medical records. The entries concerning the Prior Incidents, which Dr. Kunjukrishnan had not reviewed prior to his testimony at trial, cast a different light on the nature and effect of the appellant's medical condition from that advanced by Dr. Kunjukrishnan during his examination-in-chief.

[29] In addition, Dr. Kunjukrishnan's admitted failure to read the appellant's entire medical record, including the entries concerning the Prior Incidents, was relevant to the creditworthiness of his opinion about the appellant's mental illness and its effect on the appellant's driving behaviour. [page30 ]

[30] The Crown's cross-examination of Dr. Kunjukrishnan on the Prior Incidents was a concerted attempt to undermine the witness's credibility and the reliability of his expert opinion. The cross-examination, therefore, was unobjectionable.

[31] However, the appellant argues that the trial judge erred by failing to instruct the jury that the facts from the appellant's medical records concerning the Prior Incidents put to Dr. Kunjukrishnan on cross-examination were unproven hearsay and could not be relied upon by the jury as evidence. The appellant submits that the prejudicial effect of this error was exacerbated by Crown counsel's closing address, described above, which invited the jury to engage in prohibited propensity reasoning based on the Prior Incidents.

[32] The Crown counters that the jury charge was adequate in the circumstances. The charge was sufficient, the Crown submits, to alert the jury that the only permissible use it could make of Dr. Kunjukrishnan's evidence concerning the Prior Incidents was to assess the weight to be attached to his opinion that the appellant's schizophrenia might have affected the appellant's state of mind and driving behaviour at the time of the collision.

[33] The Crown next contends that Crown counsel's closing address at trial was directed to the contention that Dr. Kunjukrishnan's opinion should be accorded little weight. Counsel's impugned remarks, it is said, were designed to underscore that there was evidence of a possible alternative diagnosis -- difficulties with anger management -- that accounted for the appellant's conduct on the night in question.

[34] I conclude that the trial judge's failure to provide a limiting instruction on the permissible use of Dr. Kunjukrishnan's evidence regarding the Prior Incidents, coupled with the absence of a remedial instruction concerning the Crown's closing address, require a new trial. I am not satisfied that the jury would have understood that the entries in the appellant's medical records concerning the Prior Incidents, as discussed by Dr. Kunjukrishnan in his evidence, were unproven hearsay that could not be used for the truth of their contents or to reason from general character or disposition to guilt. I say this for the following reasons.

(1) Non-direction regarding the Prior Incidents

[35] I begin with two controlling principles. First, the adequacy of the jury charge in this case must be assessed in the context of the function of a jury charge. As Watt J.A. of this court put it in R. v. S. (J.), [2012] O.J. No. 4751, 2012 ONCA 684, 296 O.A.C. 184, at para. 35: "Proper instructions leave the jury with [page31 ]a sufficient understanding of the facts as those facts relate to the issues the jury has to decide." He added, at para. 36:

In the end, the jury must understand:

i. the factual issues to be determined;

ii. the legal principles applicable to the issues and the evidence adduced at trial;

iii. the positions of the parties; and

iv. the substantial parts of the evidence relevant to the positions of the parties on the issues to be decided.

[36] Second, in the recent case of R. v. Prokofiew, [2012] 2 S.C.R. 639, [2012] S.C.J. No. 49, 2012 SCC 49, the Supreme Court again confirmed that when considering the adequacy of a jury charge, the charge must be considered in its entirety.

[37] With these important principles in mind, I conclude that the jury charge in this case was deficient in two significant respects. The charge failed to caution the jury against utilizing bad character evidence for propensity reasoning. It also failed to identify the information in the appellant's medical records about the Prior Incidents as hearsay, which could not be relied upon for the truth of its contents.

[38] The trial judge recognized the need for a specific caution about the Prior Incidents. During his pre-charge exchange with defence counsel, quoted above, the trial judge twice acknowledged, correctly, that the facts put to Dr. Kunjukrishnan concerning the Prior Incidents were "not evidence". He indicated that these facts were put to the witness "to alert him to another side to Mr. Precup". The trial judge went on to say that he would tell the jury that the relevant exchanges were "to suggest to Doctor [Kunjukrishnan] that maybe he didn't know everything" about the appellant.

[39] On the basis of the trial judge's comments, defence counsel replied, "[t]hat's fine". In light of those comments, defence counsel no doubt would have assumed that a limiting instruction on the permissible use of the evidence concerning the Prior Incidents would form part of the jury charge. Yet the charge contained no explicit instruction to the jury about the impropriety of using the information about the Prior Incidents as evidence or for the truth of the facts set out in the relevant entries in the appellant's medical records. The trial judge did not tell the jury that the facts concerning the Prior Incidents were hearsay or that they were put to Dr. Kunjukrishnan to bolster the Crown's attempts to undermine Dr. Kunjukrishnan's opinion evidence by [page32 ]demonstrating that his review of the appellant's medical records and his knowledge of the appellant were incomplete.

[40] The Crown acknowledges that the evidence of the Prior Incidents was based on hearsay, that the relevant entries in the appellant's medical records were not admissible for the truth of their contents and, accordingly, that they could be used by the jury only to assess the weight to be given to Dr. Kunjukrishnan's opinion evidence.

[41] That said, the Crown contends that the jury charge contained sufficient instructions regarding the impermissible use of hearsay evidence to offset the absence of a specific caution about the hearsay nature of the information concerning the Prior Incidents and the limited permissible use of evidence of bad character. I disagree.

[42] I note, first, that no mid-trial instruction was furnished to the jury concerning Dr. Kunjukrishnan's evidence about the Prior Incidents or about the hearsay nature of the facts pertaining to the Prior Incidents contained in the appellant's medical records.

[43] In my view, this is a case where, once the Crown's approach to Dr. Kunjukrishnan's cross-examination and Crown counsel's highlighting of the Prior Incidents revealed itself, it would have been preferable for the trial judge to have provided a limiting mid-trial instruction to the jury at the time when the evidence was received. See Hon. Mr. Justice David Watt, Helping Jurors Understand (Toronto: Thomson Carswell, 2007), at 141. A mid-trial instruction would have alerted the jury to the proper use of the evidence concerning the Prior Incidents and of the information on which that evidence was based, about which the jury could then have been reminded later in the charge. A limiting mid-trial instruction might also have alerted the Crown to be more circumspect in its closing jury address.

[44] Although defence counsel did not request a mid-trial corrective instruction, he expressly requested the inclusion of a cautionary instruction in the charge itself. As I read the transcript of the pre-charge discussions, defence counsel was assured that a limiting instruction would be provided. Yet, as I have said, the jury charge contains no explicit reference to the jury's use of the evidence concerning the Prior Incidents or of the underlying hearsay information in the appellant's medical records.

[45] There is no doubt that the trial judge warned the jury generally that hearsay evidence must be approached with caution. The jury charge contains this general instruction:

When you assess the opinion of an expert witness, you should consider whether the opinion is based on proven facts. If for example, the expert [page33 ]opinion is based on hearsay evidence or on propositions that have not been provided, or on testimony which you do not accept, then you should attach less or perhaps no weight to the opinion.

Please know that the opinion of an expert is admissible in evidence even if it is based on secondary or hearsay evidence. The secondary evidence is only admissible however, to show the information on which the expert's opinion is based. It is not evidence as to the truth of the second hand evidence, nor does it prove the existence of the facts on which the opinion is based.

[46] While general jury instructions of this type are helpful, there must nonetheless be a real effort to tie the substantial parts of the evidence to the issues to be decided by the jury. This occurred, for example, when the trial judge addressed certain of the appellant's hearsay statements to Dr. Kunjukrishnan, specifically, his assertions that he had been assaulted on an unrelated past occasion while sitting in his car at a red light, and his claim that he had been fearful of Mr. Anderson on the night of the collision. The trial judge told the jury:

In this case, what Mr. Precup told Dr. Kunjukrishnan is hearsay and cannot be considered by you in determining what happened in this case. It can only be used in assessing the opinion of the doctor. In particular, Mr. Precup's hearsay statement describing some incident which allegedly happened a few years ago whenever [sic] he was allegedly attacked and assaulted while his vehicle was stopped at a red light, is clearly, hearsay.

The same is true of his claim that he was [concerned] that the victim was coming towards the passenger side window and he was concerned for his own safety and that of his girlfriend, Ms. Lou.

These were foundational facts used by Dr. Kunjukrishnan in forming his opinion.

[47] The trial judge continued as follows:

Before any weight can be given to an expert's opinion, facts upon which the opinion is based, must be found by you to exist. The more the expert has relied upon facts not proved in evidence before you, for example, the hearsay statements to which I have just made reference, the less weight if any you may attribute to the opinion.

If you find there is no factual basis or a limited factual basis in the evidence to support the expert's opinion, then you would consider attaching no weight or less weight respectively, to such an opinion. It is for you to decide.

[48] But the trial judge failed to provide a similar or other warning to the jury regarding Dr. Kunjukrishnan's evidence about the Prior Incidents and the entries in the appellant's medical records on which that evidence was based. This omission, in my opinion, gives rise to two serious concerns. First, the facts about the Prior Incidents were highly prejudicial to the appellant. They strongly suggested that he has a propensity for [page34 ]aggressive and unprovoked, violent behaviour, as the Crown argued had been in play at the time of the collision.

[49] As reflected in the trial judge's promise to provide a cautionary instruction, the nature of the Prior Incidents called out for a clear warning to the jury as to what uses the evidence of bad character could and could not be put. As the Supreme Court emphasized in R. v. Handy (2002), 81 O.R. (3d) 414, [2002] 2 S.C.R. 908, [2002] S.C.J. No. 57, 2002 SCC 56, at para. 141, propensity evidence is of a "poisonous nature", requiring "a high awareness of its potentially prejudicial effect".

[50] However, the charge does not identify the Prior Incidents as hearsay or mention evidence of bad character in any way. Nor does the charge contain any caution to the jury that it could not rely on the Prior Incidents for propensity reasoning. The jury was not told that the facts contained in the appellant's medical records concerning the Prior Incidents were admissible only for the limited purpose of attempting to undermine the extent of Dr. Kunjukrishnan's knowledge of the appellant and, hence, his opinion about the nature and effect of the appellant's mental illness, by illustrating that his opinion had been cast too narrowly, or was based on incomplete information.

[51] Second, the instructions provided to the jury, quoted above, were directed at the facts relied upon by Dr. Kunjukrishnan to support his opinion of the appellant's proper diagnosis -- chronic schizophrenia with persisting negative symptoms -- and his testimony that this mental illness may have affected the appellant's state of mind and, hence, his criminal culpability for the collision. In other words, the instructions provided by the trial judge were directed at hearsay or "foundational facts" relied on by Dr. Kunjukrishnan in forming his opinion.

[52] The facts concerning the Prior Incidents were not relied on by Dr. Kunjukrishnan and formed no part of the foundation for his opinion. They were merely unproven facts asserted by the Crown to undercut Dr. Kunjukrishnan's opinion and the weight to be accorded to it by the jury. Nowhere in the charge was the jury told that unproven facts relied on by the Crown to attack Dr. Kunjukrishnan's opinion, like unproven facts relied on by Dr. Kunjukrishnan to form his opinion, also constituted hearsay that could not be treated as evidence.

[53] In my view, in the absence of a limiting instruction and based on the charge as a whole, it cannot be said that the jury necessarily would have understood the limited permissible use of the information and evidence regarding the Prior Incidents. To the contrary, absent such an instruction, there was a realistic [page35 ]concern, as expressed by defence counsel prior to the charge, that the jury might place evidential value on the Prior Incidents.

[54] The Crown points out that defence counsel did not object on this basis, following the charge. The Crown also submits that a specific instruction concerning the Prior Incidents could only have worked to the appellant's disadvantage since an itemization of the Prior Incidents would have reminded the jury of the damaging nature of the entries in the appellant's medical records regarding his apparent character and past violent behaviours.

[55] While a relevant factor, defence counsel's failure to renew his objection after the charge does not cure the trial judge's non-direction. It is well established that the failure to object to parts of a jury charge is not dispositive of a subsequent challenge to the propriety of the charge: see e.g., R. v. Daley, [2007] 3 S.C.R. 523, [2007] S.C.J. No. 53, 2007 SCC 53, at para. 58; R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, [1997] S.C.J. No. 21, at paras. 37-38.

[56] I also do not accept that an itemization of the Prior Incidents was appropriate or necessary in order to provide an adequate jury instruction concerning the limited permissible use of evidence of bad character, the hearsay nature of the information regarding the Prior Incidents, and the dangers of prohibited propensity reasoning.

[57] The appropriate jury instruction was a simple warning that the Crown was in no better position than the defence when it came to the use of hearsay. In this case, as with the hearsay relied on by Dr. Kunjukrishnan, the unproven facts in the appellant's medical records concerning the Prior Incidents could not be relied upon by the jury for the truth of their contents. Nor could the Prior Incidents be used by the jury to reason that the appellant's suggested character or past conduct made his commission of the charged crimes more likely. The absence of a limiting instruction in this regard effectively left the jury with no guidance on "troubling evidence of bad character": R. v. Philip, [2010] A.J. No. 256, 2010 ABCA 79, 477 A.R. 380, at paras. 7-8.

(2) Crown counsel's closing address to the jury

[58] In my opinion, the trial judge's failure to provide a limiting instruction on the permissible use of the information and evidence relating to the Prior Incidents was exacerbated by the absence of a remedial instruction concerning Crown counsel's closing address.

[59] I have earlier set out in these reasons the salient parts of Crown counsel's closing. I agree with the appellant's submission that the impugned comments by Crown counsel invited the jury to conclude that the appellant purposely ran Mr. Anderson down [page36 ]in an uncontrolled fit of anger or rage. I also agree with the appellant's contention that the effect of Crown counsel's closing was to paint the appellant as a volatile and angry individual with a "hair trigger" for violence. Although Crown counsel did not explicitly mention the Prior Incidents, it cannot have been lost on the jury that these suggested characteristics were related directly to Dr. Kunjukrishnan's evidence concerning the Prior Incidents during cross-examination.

[60] Two examples will suffice to make this point. First, Crown counsel twice told the jury that the appellant has a "volatile nature" and a "hair trigger". Indeed, he went further, stating that, "[W]e know Mr. Precup is volatile" and "It doesn't take much for him to hurt someone" (emphasis added). There was no admissible evidence of these facts. These were assertions only, based on hearsay entries in the appellant's medical records. The fact that Dr. Kunjukrishnan agreed with these assertions did not convert the unproven facts of the Prior Incidents into affirmative, independent evidence.

[61] Nonetheless, in my view, these facts were positioned by Crown counsel as if they had been affirmatively established in the evidence led at trial. Recall again the claim, "[W]e know Mr. Precup is volatile." In my opinion, Crown counsel essentially invited the jury to use the Prior Incidents as evidence of the appellant's character and disposition for violence and, hence, as indicative of his guilt. This was improper.

[62] Second, Crown counsel closed his jury address by asserting that the appellant, in addition to suffering from schizophrenia, had a "separate anger management issue" that was a "function not of his disease, but of his own personality". Counsel then said: "[The appellant] employs physical violence to sort out his issues."

[63] The Crown's theory that the appellant had independent anger management issues apart from his schizophrenia was put to Dr. Kunjukrishnan in cross-examination. Dr. Kunjukrishnan acknowledged that he considered anger management to be a possible diagnosis for the appellant. However, he did not accept that it was, in fact, an appropriate diagnosis, separate and apart from schizophrenia. Similarly, while the medical charts contained references to historical anger management issues, they were not affirmatively established by Dr. Kunjukrishnan's testimony as a "separate . . . issue" from schizophrenia.

[64] Crown counsel, however, invited the jury to conclude that the appellant suffered from uncontrolled anger management issues, which, rather than schizophrenia, accounted for his conduct at the time of the collision. Moreover, Crown counsel's [page37 ]suggestion that the appellant "employs physical violence to sort out his issues" was directly grounded in the Prior Incidents. The Prior Incidents were not evidence. And there was no independent evidence of any pattern by the appellant of resolving "his issues" with physical violence.

[65] Taken as a whole, Crown counsel's impugned statements were tantamount to encouraging the jury to engage in impermissible propensity reasoning. They cried out for an explicit, remedial instruction or, alternatively, a clear instruction on the limited use of Dr. Kunjukrishnan's evidence about the Prior Incidents. The absence of these instructions is fatal to the jury's verdicts, necessitating a new trial.

(3) Other issues

[66] As I have said, during the appeal hearing, the appellant did not press the other grounds of appeal raised in his factum. In any event, as I would allow the appeal for the reasons set out above, it is unnecessary to address the other grounds advanced by the appellant.

V. Disposition

[67] For the reasons given, I would allow the appeal, set aside the verdicts entered and direct a new trial.

Appeal allowed.

End of Document