COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jackson, 2013 ONCA 632

DATE: 20131017

DOCKET: C52605

Rosenberg, Sharpe and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Douglas Jackson

Appellant

Catriona Verner, for the appellant

David Lepofsky, for the respondent

Heard: June 18, 2013

On appeal from the conviction entered by Justice James R. H. Turnbull of the Superior Court of Justice, sitting with a jury, on March 11, 2010, and the sentence imposed on June 16, 2010.

Gillese J.A.:

[1] After a month-long trial for first-degree murder, Douglas Jackson was convicted of second degree murder by a judge sitting with a jury. He was sentenced to life imprisonment, with a 15-year period of parole eligibility.

[2] At trial, Mr. Jackson admitted that he shot the deceased, Derrick Campbell, but claimed that he acted in self-defence, had been provoked and that due to a combination of provocation, self-defence and extreme intoxication on crack cocaine, he lacked the requisite intent for murder.

[3] Mr. Jackson (the “appellant”) appeals his conviction and seeks leave to appeal his sentence.

[4] For the reasons that follow, I would dismiss the conviction appeal, and grant leave to appeal sentence but dismiss the sentence appeal.

BACKGROUND IN BRIEF

[5] On December 13, 2006, the appellant and several other individuals were drinking and using crack cocaine in an apartment in Hamilton. At some point in the evening, they ran out of drugs. A plan was formed to lure Mr. Campbell, a crack dealer, to the apartment where they were partying so that they could rob him.

[6] When Mr. Campbell arrived at the apartment around 11:00 p.m., he was led to a washroom where some of the participants tried to convince him to “front” them some crack. While they were talking to Mr. Campbell, the appellant stuck a gun in the bathroom and demanded Mr. Campbell’s money and drugs.

[7] One of the others in the washroom intervened and the robbery was called off. The appellant left the washroom area.

[8] According to the appellant, Mr. Campbell then approached him in an aggressive fashion, calling him names. The appellant testified that Mr. Campbell reached under his oversize sweater with his left hand, revealing what he believed to be the handle of a black gun. At that point, the appellant pulled out the gun that he had earlier pointed at Mr. Campbell and fired a number of shots. One of them entered Mr. Campbell’s heart.

[9] Mr. Campbell turned and began to run from the apartment. In the process, the appellant shot him in the back. He then followed Mr. Campbell into the hallway, continuing to brandish the gun.

[10] Mr. Campbell was able to run down four floors in the apartment staircase before collapsing and dying. Four bullets were recovered from his body. He had been shot in the chest, arms, and back. When he was found and searched, no gun or other weapon was found.

[11] Defence counsel argued at trial that the appellant acted in self-defence upon seeing Mr. Campbell reach for his gun. However, the police found no guns at the scene, not even the one that had been used to shoot Mr. Campbell. Further, the evidence of the witnesses was largely inconsistent on the details of the planned robbery and the shooting. Thus, a critical issue at trial was whether Mr. Campbell (the “deceased”) had a gun with him at the time he was killed.

THE ISSUES

[12] The appellant raises three issues on appeal. He argues that the trial judge erred by:

1. excluding evidence of the deceased’s three prior convictions relating to guns;
2. improperly limiting the jury’s use of a prior consistent statement made by Tammy Stringer, one of the defence witnesses, which indicated that the deceased had a gun at the time he was shot; and,
3. unfairly interfering with defence counsel’s examination of two witnesses.

ISSUE 1: EXCLUSION OF EVIDENCE OF THE DECEASED’S CONVICTIONS

[13] Defence counsel brought a pre-trial application to introduce the deceased’s criminal record, which consisted of three firearms offences: one count of transfer of a firearm, prohibited or restricted weapon without authority; and two counts of possession of a prohibited or restricted firearm with ammunition. In the application, defence counsel initially sought to introduce the underlying facts surrounding the convictions. However, he abandoned this part of his application at the outset of oral argument on the application.

[14] The Crown brought a cross-application, conditional upon the appellant succeeding on his application. To ensure that the jury had a fair and balanced picture, if the defence application were granted, the Crown sought to introduce evidence of the appellant’s disposition for violence, including his criminal record, the resultant sentences, and the underlying facts surrounding those convictions. The Crown submitted that the background facts for the appellant’s aggravated assault conviction could not be entered simply by filing that information. Instead, evidence would have to be called from the victims of the aggravated assault. Further, the Crown sought to introduce statements made by the appellant regarding his convictions and to refer to the facts relating to a then-outstanding robbery charge against the appellant, arising from an incident that took place a few months after the deceased was shot and killed. The Crown argued that this latter evidence should be admitted because the appellant had confessed to the offence and it was proximate in time to the shooting.

[15] The trial judge dismissed the appellant’s application, without prejudice to his right to renew the application during the trial.

[16] On appeal, the appellant argues that the trial judge erred in excluding evidence of the deceased’s convictions. Specifically, he submits that the trial judge erred: (1) by using the wrong test for admissibility of the evidence; (2) in finding that the convictions had no probative value; and (3) in finding that it would have taken an unreasonable amount of time to introduce the convictions into evidence.

[17] For the reasons that follow, I would dismiss this ground of appeal.

A. THE APPLICATION AND THE RULING

(1) The Application

[18] Defence counsel at trial argued for the admission of the deceased’s criminal record on the basis that the convictions showed a disposition for violence, making it more likely that the deceased was in possession of a gun on the night he was shot and, therefore, was more likely to have been the aggressor. If it were more likely that the deceased was the aggressor in the altercation with the accused, this gave an air of reality to the appellant’s claims of self-defence and provocation.

[19] To assist the court with his submissions on the application, defence counsel filed a flow chart entitled “Disposition Chart”, which contained an overview of his reasoning. The chart shows the following reasoning. The deceased’s criminal record indicated a “specific disposition re: guns”. The “specific disposition re: guns” led to two inferences:

• First, it made it more likely that, as a drug dealer, the deceased had a gun in the apartment on the night in question, which made it more likely that the deceased reached for a gun, and thus made it more likely that he was the aggressor.
• Second, the deceased’s “specific disposition re: guns” also suggested that the deceased was “potentially dangerous”, which was suggestive that he was of “bad character”. His “bad character” made it more likely that the deceased was the aggressor.

[20] In his oral submissions, defence counsel reviewed case law on the admissibility of evidence of a deceased’s previous acts of violence, beginning with R. v. Scopelliti (1982), 1981 CanLII 1787 (ON CA), 34 O.R. (2d) 524 (C.A.). On the basis of Scopelliti, he argued that the deceased’s criminal record made it more likely that he had a gun, which made it more likely that he was the aggressor. I will refer to this as the “Scopelliti argument”.

[21] Relying on R. v. Watson (1996), 1996 CanLII 4008 (ON CA), 30 O.R. (3d) 161 (C.A.), defence counsel also argued that because the deceased had a criminal record involving guns, it was more likely that he had a gun at the time of the shooting. I will refer to this as the “Watson argument”.

[22] Towards the end of defence counsel’s submissions, the trial judge attempted to clarify the basis of which defence counsel sought to introduce the evidence:

THE COURT: The purpose, the submission you’re making is, is that, as you laid out in your chart here, that if [the jury is] aware of the criminal convictions for the possession and the sale [of guns] that he’s more likely to have a gun, he’s more likely to be a drug, he was a drug dealer, more likely to be the aggressor?

[DEFENCE COUNSEL]: Ultimately, that’s the chain of reasoning.

(2) The Ruling

[23] The trial judge gave thorough reasons for dismissing the application, reported at R v. Jackson, [2009] O.J. No. 1642 (S.C.). In his reasons, he includes a summary of the relevant portions of the criminal records of both the deceased and the appellant; the background information relating to the convictions of both; and the factual allegations surrounding the then-outstanding robbery charge against the appellant.

[24] In relation to the Scopelliti argument, the trial judge found that the deceased’s convictions for possession and sale of weapons three years prior to the shooting did not directly link him to acts of violence and lacked the requisite proximity in time. He also noted that the deceased had no convictions for violent offences. Consequently, the trial judge found that the convictions did not constitute evidence of acts of violence and did not have probative value in terms of the deceased’s disposition for violence.

[25] The trial judge rejected the Watson argument on the basis that its reasoning did not apply to the case before him. He noted that in Watson, the evidence was current, related to the victim’s invariable habit of carrying a concealed gun, and was to be given by a witness who knew of the victim’s habit. In his view, the evidence of the deceased’s convictions was disposition evidence, not evidence of a habit of the deceased.

[26] The trial judge went on to hold that even if he had found the proposed evidence to be relevant, he would have excluded it. At para. 36 of his reasons, he states:

I am acutely aware of the general principle that a trial judge, in the interests of fairness to the accused, should permit him to introduce evidence which may be relevant to creating a doubt that he is guilty of the offence. I am mindful, that even if I felt the proposed evidence of [the deceased’s] convictions was relevant, I have a residual discretion to exclude the evidence if I felt the prejudicial effect of the evidence exceeded its probative value.

[27] A footnote at the end of the first sentence in para. 36 refers the reader to R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at p. 611.

[28] The trial judge returns to Seaboyer in the following paragraph, where he sets out and applies the four factors that Seaboyer indicates should guide a court in determining the admissibility of defence evidence of reputation. Of the four factors, the trial judge found that two were engaged: (1) the danger that the proposed evidence and any evidence in response would create a side issue that would unduly distract the jury from the main issue in the case; and (2) the likelihood that the evidence would consume an undue amount of time.

[29] At para. 39 of his reasons, the trial judge stated that even if he had found that the deceased’s criminal convictions had some probative value to show a disposition for violence, based on the evidence on the voir dire, he would not exercise his discretion and admit it because its admission “would trigger a side issue that would consume an undue amount of time and that would distract the jury unduly from the main issue in the case”.

B. ANALYSIS

(1) Did the Trial Judge use the Wrong Test for Admission of the Evidence?

[30] Relying on Seaboyer, the appellant points out that relevant defence evidence is to be excluded only where the potential prejudice to the trial process of admitting the evidence clearly outweighs its value. He submits that the trial judge erred by failing to apply this legal test when determining whether to admit the evidence of the deceased’s convictions. In support of this submission, the appellant points to the last line of para. 36 of the trial judge’s reasons, set out above, where the trial judge states he would exercise his discretion to exclude the proposed evidence if he found that the “prejudicial effect of the evidence exceeded its probative value”. This, the appellant contends, demonstrates that the trial judge did not appreciate that the proposed evidence should have been excluded only where its probative value was “substantially” or “clearly” outweighed by prejudice to the trial process. The appellant contends that the trial judge’s failure to articulate the high threshold for excluding relevant defence evidence suggests that the evidence was excluded for reasons of trial efficiency.

[31] I do not accept this submission.

[32] The record shows that counsel fully and fairly argued this application with extensive reference to the correct legal principles. In light of that and the trial judge’s repeated reference to Seaboyer in his reasons, there can be no doubt that he was fully alive to its dictates. Indeed, as he states in the first sentence of para. 36 of his reasons, he was “acutely aware” of the general principle operating in favour of the admission of relevant defence evidence.

[33] Understood in this context, it is clear that the trial judge was not operating under a mistaken view of the threshold for admissibility of defence evidence. The impugned sentence in para. 36 of the reasons comes after the trial judge’s finding that the proposed evidence had no probative value. While the wording of the impugned sentence could be improved, in my view, read in context, it reflects the trial judge’s conclusion that even if the proposed evidence were to have some probative value, that minimal value was significantly outweighed by the prejudicial effect of its admission.

(2) Did the Trial Judge Err in His Assessment of the Probative Value of the Evidence?

[34] The appellant submits that the trial judge erred in finding that the deceased’s convictions had no probative value.

[35] I do not accept this submission.

[36] As I have explained, with the benefit of hindsight, it can be seen that defence counsel argued the application on a two-pronged basis. First, he advanced the Scopellitti argument, to the effect that the convictions showed that the deceased had a propensity for violence. Second, he advanced the Watson argument, to the effect that the convictions showed that the deceased had a propensity to possess firearms.

[37] The trial judge dealt with both prongs.

[38] In rejecting the Scopelletti argument, the trial judge found that the deceased’s convictions for possession and sale of firearms did not directly link him to acts of violence. He noted that the convictions were dated and that the deceased had no convictions for violent offences. He concluded that the convictions did not have any probative value in terms of showing that the deceased had a propensity for violence.

[39] I see no error in this aspect of the trial judge’s reasons. Possession and sale of firearms are not acts of violence. Furthermore, it will be recalled that in his reasons, the trial judge set out the underlying facts for the convictions. A review of those facts shows that they deal with the deceased’s business of selling handguns. They do not show the deceased involved in acts of violence or using weapons. And, as the trial judge noted, the convictions were dated. The deceased’s convictions were in 2002 and the shooting took place in December 2006.

[40] As for the Watson argument, the trial judge rejected it on the basis that its reasoning did not apply to the case before him.

[41] Again, I see no error in the trial judge’s reasoning or conclusion. As the Crown submitted, the facts in this case are a far cry from those in Watson, where the evidence showed that the deceased was habitually in possession of a firearm. In this case, the defence was attempting to introduce disposition evidence, not evidence of the deceased’s habits. Unlike in Watson, there was no evidence that the deceased always carried a gun. In addition, as has been mentioned, the proposed evidence was not current and did not involve the deceased’s use of guns. Moreover, it was not going to be tendered by a witness who knew the deceased and his habits.

[42] Furthermore, at the time the application was heard, it was clear that ample evidence would be before the jury showing that the deceased was actively involved in the drug trade, as a dealer. It is notorious that drug dealers often carry hand guns. In this context, the convictions would have added little, if anything.

(3) Did the Trial Judge Err in His Assessment of the Time Involved?

[43] The appellant contends that this whole matter could have been dealt with in “a matter of seconds” by simply admitting the convictions.

[44] I do not agree.

[45] Admission of the deceased’s convictions would have put his character in issue. As defence counsel acknowledged at the time of the application, this means that the appellant’s character would have been in issue as well. The Crown’s cross-application would have proceeded. In it, the Crown sought to adduce the appellant’s full criminal record; the evidence underlying the appellant’s convictions; and the alleged facts surrounding the outstanding robbery charge. It may very well have succeeded in being permitted to adduce much more evidence of the appellant’s violent past than it was permitted to lead pursuant to the Corbett[^1] ruling. As this court said in R. v. Williams, 2008 ONCA 413, 233 C.C.C. (3d) 40, at para. 58:

[T]he Crown may lead reply evidence of the accused’s propensity for violence … where it is necessary to enhance fairness and ensure that the trier of fact has a balanced, not a distorted picture of what occurred between the deceased and the accused and of their respective dispositions for aggression. [Citations omitted.]

[46] Consequently, if the deceased’s convictions had been admitted into evidence, the door would have been opened to the Crown to adduce evidence of all of the appellant’s offences involving guns and violence, including his convictions as a youth for two robberies, assault with a weapon, and careless use of a firearm may have been admitted.

[47] Further, the door would have been opened to the Crown to introduce the facts underlying the appellant’s convictions, including his aggravated assault conviction stemming from an attempted murder incident in which the appellant shot a number of people.

[48] And, the door would have been opened to the Crown to adduce the factual allegations underlying the appellant’s then-outstanding robbery charge, in which the appellant robbed a convenience store and threatened to kill the clerk.

[49] Adducing the facts underlying both the deceased’s and the appellant’s convictions would have protracted the trial and distracted the jurors from the issues before them. In this regard, it is worthy of note that defence counsel abandoned his initial request in the application to introduce the facts underlying the deceased’s convictions precisely because he thought their introduction would have taken the jury’s attention away from the facts of the charge which the appellant faced and in order to “dampen” the Crown’s chances of introducing the facts underlying the appellant’s convictions.

[50] All of these considerations were before the trial judge. It is these considerations to which the trial judge is referring when he stated that admission of the proposed evidence would trigger a “side issue” that would consume an undue amount of time and unduly distract the jury from the main issue in the case. And, in my view, it was this body of evidence to which the trial judge was referring when he found that introduction of the deceased’s convictions would occasion significant prejudice to the appellant.

[51] For all of these reasons, in my view, there is no basis on which to interfere with the trial judge’s ruling to exclude evidence of the deceased’s convictions.

ISSUE 2: USE OF THE PRIOR CONSISTENT STATEMENT

[52] The appellant’s second ground of appeal arises from a statement allegedly made shortly after the shooting by Tammy Stringer to Jennifer Hall, both of whom were in the apartment at the time of the shooting. The appellant submits that the trial judge erred by not allowing the jury to consider the statement to rebut the Crown’s allegation of recent fabrication by Ms. Stringer.

[53] For the reasons that follow, I reject this submission.

A. THE EVIDENCE AND THE INSTRUCTION

(1) Jennifer Hall’s Evidence

[54] Jennifer Hall was in the apartment taking a shower at the time of the shooting. She only became aware of the shooting when Ms. Stringer entered the bathroom and “told [her] to get out of the shower because someone’s been shot”.

[55] In a statement to the police on December 14, 2006, shortly after the shooting, Ms. Hall said that when Ms. Stringer entered the bathroom moments after the shooting, Ms. Stringer said “Burlington [the appellant] went towards the guy with his gun and the other guy [the deceased] took out his gun out of his pants and started firing” (the “Statement”).

[56] Ms. Hall was called as a Crown witness at trial.

[57] Defence counsel sought permission to elicit the Statement from Ms. Hall in cross-examination. He anticipated that he would call Ms. Stringer as a witness, and that Ms. Stringer’s trial testimony would be that she saw the deceased reach for something in his waistband, and that she thought there was going to be a gunfight. Defence counsel also anticipated that the Crown would allege recent fabrication in respect of this aspect of Ms. Stringer’s evidence and argued that he was entitled to introduce the Statement, through Ms. Hall, as a prior consistent statement to rebut that allegation. Defence counsel further argued that he could put the Statement to Ms. Hall pursuant to s. 10 of the Canada Evidence Act, R.S.C. 1985, c. C-5.

[58] Crown counsel argued against admission of the Statement on a number of grounds, one of which was that the Statement might be used to improperly bolster Ms. Stringer’s credibility.

[59] After receiving both oral and written submissions, the trial judge ruled that defence counsel could put the Statement to Ms. Hall. He observed that Ms. Hall’s credibility was important to the Crown’s case and that the defence was entitled to test her credibility. Further, he held that pursuant to s. 10 of the Canada Evidence Act, the defence had the right to cross-examine Ms. Hall on the written statement she had given to the police.

[60] In response to the Crown’s concern that the Statement might be used improperly to bolster Ms. Stringer’s credibility, the trial judge stated that if Ms. Stringer testified and her evidence was consistent with that of Ms. Hall’s, he would hear submissions on how to instruct the jury in respect of the proper use of the Statement.

[61] During cross-examination, defence counsel put the following portion of Ms. Hall’s police statement to her:

Q. Why do you know … there was two [guns]?

A. Because I was told that um Burlington [the appellant] went towards the guy with his gun and the other guy [the deceased] took out his gun out of his pants and started firing.

Q. Did you hear the gun shots?

A. No actually I didn’t.

Q. Where were you?

A. I was in the shower and that is why – I can’t believe I didn’t hear them. It started in the living room I guess.

Q. Who told you this?

A. Tammy [Stringer].

[62] Although Ms. Hall did not initially remember the Statement, after having her memory refreshed she adopted this part of her statement to the police.

(2) Tammy Stringer’s Evidence

[63] The police interviewed Ms. Stringer on December 14, 2006, and again on December 19, 2006. In neither interview did Ms. Stringer tell the police that she had seen the deceased reaching for something in his waistband at the time of the shooting. She gave this information for the first time immediately prior to the preliminary inquiry, nearly two years after the offence. She gave that information again at the preliminary inquiry.

[64] At trial, Ms. Stringer was called as a defence witness. In examination-in-chief, she testified that she believed the deceased had been reaching for something in his waistband at the time of the shooting. She specifically testified that she could not say whether it was a gun for which he was reaching.

Q. Okay. Was [the deceased] moving his hands about or …

A. Yeah, he was moving his hands about, he was putting his hands in his waist or somewhere, like I thought he had a gun too.

Q. Okay. And you said something about a gun in a waist – sorry, could you elaborate on that?

A. I didn’t say anything about a gun in a waist, I said he was reaching inside himself, like you know, like reaching – like I thought he was gonna pull out a gun too.

[65] Defence counsel returned to this topic later, again asking Ms. Stringer about what she had seen at the time of the shooting:

Q. All right. And you testified that while he was saying that, he was reaching inside his waist for a gun or something; that’s your testimony?

A. No it’s not. I didn’t say he was reaching for a gun, I said it perceived to me he was reaching for a gun, a weapon …

Q. Your perception …

A. … he could’ve been reaching for his toothbrush, for all I know. But as far as I’m concerned, he was reaching for something; because he was going to disarm whoever had a gun in that house and had pulled it on him.

[66] During cross-examination, the Crown put to Ms. Stringer the timing of her disclosure that the deceased had been reaching for something in the waistband of his pants, alleging recent fabrication.

[67] Defence counsel sought to put extracts of Ms. Stringer’s preliminary inquiry transcript to her in re-examination on the basis that she had been cross-examined as to an omission or inconsistency with a prior statement.

[68] The trial judge rejected that request for two reasons. First, in cross-examination the Crown had not challenged Ms. Stringer with respect to an omission or inconsistency. The Crown’s questioning had not suggested that Ms. Stringer gave the information about the deceased reaching towards the waistband of his pants, as if for a weapon, for the first time at trial. Rather, the Crown’s cross-examination indicated that Ms. Stringer had revealed the information in a meeting with the police and the Crown just prior to the preliminary inquiry. Second, defence counsel had already drawn Ms. Stringer’s attention to this aspect of her preliminary inquiry evidence during cross-examination pursuant to s. 9(2) of the Canada Evidence Act.[^2]

[69] Defence counsel then moved to re-examine Ms. Stringer on the Statement to rebut the Crown’s allegation of recent fabrication.

[70] The trial judge allowed the motion, saying:

I am satisfied that in re-examination, under the umbrella of recent fabrication, that a question can be posed to Ms. Stringer with respect to any statement she recalls having made to Ms. Hall immediately after the shooting.

[71] A voir dire was then conducted to determine what Ms. Stringer could remember having said to Ms. Hall on the night in question.

[72] On the voir dire, Ms. Stringer testified as follows:

Q. Ms. Stringer, do you recall making any statement in the washroom to Ms. Hall, just after the shooting?

A. Yes.

Q. Okay. And what was that statement, ma’am?

A. I said something like, “Come on we’ve got to go. Do you know just what happened here?”

Q. And do you recall what you told her?

A. I said, “Come on we’ve got to get out of here”.

Q. Okay.

A. “Do you realize what just happened here?”

Q. All right. And did you say anything else to her?

A. I don’t think so.

[73] Defence counsel then said “Well, there you go, Your Honour.” He did not ask Ms. Stringer any questions about the Statement in re-examination.

(3) Instruction on Use of the Statement

[74] In his closing submissions, defence counsel reviewed the Statement and said that it could be used only to evaluate Ms. Hall’s credibility, and not for the truth of its contents.

[75] Crown counsel objected to the defence closing on this point. He argued that although defence counsel said the Statement could be used only in respect of Ms. Hall’s credibility, the way in which defence counsel had presented the Statement left the impression that it could be considered for the truth of its contents.

[76] The trial judge agreed, stating that defence counsel’s use of the Statement

… was somewhat excessive. [Defence counsel] not only burned the words into [the jurors’] minds by putting it on the screen, [he] highlighted some of the words and read [so as]to distinguish them from other words.

[77] The trial judge instructed the jury as follows:

I specifically direct you to consider this statement not as the truth of its contents (that is, not as evidence of what actually happened) but it can only be used by you to consider the credibility of the evidence of Jennifer Hall. I further remind you that Tammy Stringer gave no evidence to this effect. This is a statement that demonstrates why hearsay evidence is not admissible in our courts. The person who allegedly told her that statement is not available to be cross-examined. The statement itself is inherently inaccurate. There is no evidence before the court that two guns were fired. There is no evidence that [the appellant] went towards the deceased with his gun. There is no evidence that the deceased took a gun out of his pants and started firing. You are to ignore the statement save and except if it helps you to assess the credibility of Jennifer Hall. [Emphasis added.]

[78] No objection was taken to this part of the charge.

B. ANALYSIS

[79] In his factum, the appellant framed the second ground of appeal in two different ways. Initially, this ground is stated as:

The trial judge erred in excluding a prior consistent statement, which resulted in the jury being left with the impression that the first time Stringer said the deceased had reached towards his waistband, was months after the shooting.

Later, the ground is stated to be:

Did the trial judge err in not allowing the jury to consider Stringer’s statement to rebut an allegation of recent fabrication?

[80] The first formulation of this issue rests on a factual inaccuracy – the trial judge did not exclude the Statement. It will be recalled that he permitted defence counsel to elicit the Statement through Ms. Hall. Thus, the jury heard Ms. Hall’s evidence about Ms. Stringer’s alleged statement to her shortly after the shooting.

[81] Furthermore, the trial judge expressly ruled that defence counsel was entitled to use the Statement in Ms. Stringer’s re-examination to rebut the Crown’s allegation of recent fabrication. However, on the voir dire, Ms. Stringer could not remember having made the Statement. All she recalled was telling Ms. Hall that they had to get out of the apartment. Defence counsel then chose to not pursue the Statement with Ms. Stringer in re-examination. Nothing precluded defence counsel from going further, as for example, by trying to refresh Ms. Stringer’s memory, just as he had done with Ms. Hall when he presented Ms. Hall with her statement to the police.

[82] The fact that defence counsel did not choose to pursue the Statement in re-examination does not mean that the trial judge prohibited him from doing so or that the trial judge excluded the Statement. To the contrary, as I have explained, the trial judge expressly ruled that defence counsel could introduce the Statement and use it both to challenge Ms. Hall’s credibility and to rebut the allegation of recent fabrication.

[83] The appellant also mistakenly suggests that the Crown misled the jury in its closing by saying that Ms. Stringer’s memory of the deceased reaching for a gun was a revelation that came to her just prior to the preliminary hearing. What the Crown said in closing was that Ms. Stringer did not tell anyone in authority about the deceased reaching for a gun until just prior to the preliminary inquiry. That is correct. Ms. Stringer was interviewed by the police twice: on December 14 and December 19, 2006. Ms. Stringer did not tell the police in either interview that the deceased had a gun or was reaching into his pants for a gun or other weapon. The first time that she told someone in authority that the deceased was reaching into his pants at the time of the shooting was when she was being interviewed by the Crown and police in preparation for the preliminary inquiry.

[84] I turn then to the heart of the appellant’s submission on this ground of appeal, namely, that the trial judge erred in not allowing the jury to consider the Statement to rebut an allegation of recent fabrication. I reject this submission because it rests on the false premise that Ms. Stringer made a prior consistent statement.

[85] It is well established that although prior consistent statements are generally inadmissible because they lack probative value, an exception to this general exclusionary rule can be made to rebut an allegation of recent fabrication: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5. A prior consistent statement has probative value in the context of an allegation of recent fabrication where the statement “can illustrate that the witness’s story was the same even before a motivation to fabricate arose”: Stirling, at para. 5 (emphasis added).

[86] In this case, the Statement could not illustrate that Ms. Stringer’s story was “the same” because the words that Ms. Hall attributed to Ms. Stringer in the Statement and Ms. Stringer’s trial testimony are materially different.

[87] In the Statement, Ms. Stringer is said to have told Ms. Hall that she saw the deceased take a gun out of his pants and start firing it. Ms. Stringer’s trial testimony was that she saw the deceased reach towards the waistband of his pants, as if to withdraw a weapon. Ms. Stringer did not testify that she saw the deceased with a gun. She did not testify that she saw the deceased take a gun out of his pants. Nor did she testify that she saw the deceased fire a gun. Her trial testimony was clear: all she saw was the deceased reach towards the waistband of his pants and, from that movement, she perceived that the deceased was reaching for some kind of a weapon.

[88] The differences between the story related in the Statement and Ms. Stringer’s trial testimony are so significant that the Statement cannot be seen to meet the Stirling test, which requires that the witness’ story be “the same”. This conclusion is inescapable, particularly when the Statement is considered in the context of this trial, where the question whether the deceased had a gun at the time of the shooting was a critical issue.

[89] Accordingly, the trial judge made no error in not instructing the jury that they could use the Statement to rebut an allegation of recent fabrication.

[90] I would add that this ground of appeal also fails to recognize the context within which the instruction was given. The trial judge did not, as the appellant contends, explicitly instruct the jury to not consider the Statement in respect of Ms. Stringer’s credibility. The instruction was given for two reasons. First, to let the jury know that the Statement could be used when assessing Ms. Hall’s credibility. Second, and very significantly, the instruction was designed to correct the impression left by defence counsel’s closing that the Statement could be used for the truth of its contents. As all counsel have acknowledged, both here and at trial, a prior consistent statement is not admissible for the truth of its contents. The trial judge was right to instruct the jury that they could not use the Statement for that purpose.

[91] Accordingly, in my view, this ground of appeal must fail.

ISSUE 3: ALLEGED INTERFERENCE WITH DEFENCE COUNSEL’S CROSS-EXAMINATION

[92] The appellant submitted that the trial judge improperly interfered with defence counsel’s cross-examinations of two witnesses.

[93] The court found it unnecessary to hear from the Crown on this issue.

[94] I accept the Crown’s characterization of the trial judge’s two very brief interventions as innocuous questioning on a marginal issue. Accordingly, I would reject this ground of appeal.

THE SENTENCE APPEAL

[95] The appellant received a life sentence, with a 15-year period of parole ineligibility. He submits that the trial judge erred in failing to acknowledge that his culpability was reduced by his consumption of crack cocaine and alcohol, and Mr. Campbell’s aggressiveness just before he was shot. He argues that his intoxication at the time of the offence should have been considered as a mitigating factor in sentencing. He submits that an appropriate period of parole ineligibility for a case of this nature is 10 to 13 years.

[96] I see no error in the imposition of a 15-year period of parole ineligibility.

[97] The appellant committed the offence just five weeks after being released from custody on a prior offence, in circumstances that violated multiple release conditions, including four firearms prohibitions. At trial, defence counsel conceded that shooting Mr. Campbell in the back as he fled was aggravating. Further, the appellant has a serious criminal record characterized by escalating violence, including numerous convictions for guns offences and robberies. Earlier sentences, including penitentiary time for a shooting incident, have failed to curb his recidivism. And, the appellant was involved in the aborted attempt to rob Mr. Campbell, which ultimately resulted in Mr. Campbell’s murder. Finally, I would simply note that in imposing the 15-year period of parole ineligibility, the trial judge accepted the guidance of 11 jurors who recommended a minimum of 15 years ineligibility.

DISPOSITION

[98] Accordingly, I would dismiss the conviction appeal and, while I would grant leave to appeal sentence, I would also dismiss the sentence appeal.

“E.E. Gillese J.A.”

“I agree. Robert J. Sharpe J.A.”

Rosenberg J.A. (Dissenting):

[99] I have had the opportunity to read the reasons of Justice Gillese for dismissing this appeal. Those reasons are compelling and I am convinced she is right on the second and third issues.

[100] I respectfully disagree with her reasons only on the issue of the admissibility of the evidence of the deceased’s prior convictions for firearms offences. For the following reasons I would allow the appeal and order a new trial.

ISSUE 1: Admissibility of the deceased’s prior firearms convictions

A. background

[101] Justice Gillese has outlined the facts in this case. However, it is worth stressing a few matters. The claim of self-defence turned almost entirely on the appellant’s evidence. His credibility was crucial, and any relevant evidence that could support his credibility was important. A pivotal issue to the self-defence claim was whether the deceased was armed. The appellant claimed that, in the course of an aggressive encounter, the deceased pulled out a gun. In response, the appellant shot the deceased. The appellant testified that he later picked up the deceased’s gun and disposed of it. There was no other evidence that the deceased was in possession of a gun that night. Any evidence that could legitimately support an inference that the deceased was in possession of a gun at the critical time was, therefore, of significant importance to the self-defence claim.

[102] In his reasons, reported at [2009] O.J. No. 1642, the trial judge held, at para. 25, that neither the deceased’s convictions nor their underlying facts linked him directly to acts of violence, that the deceased had no prior convictions for acts of violence and that the convictions lacked the required proximity in time. He went on to hold, at para. 36, that the prior convictions “constitute at most a disposition to possess a handgun”. Then, at paras. 37 to 39, the trial judge considered the probative value and prejudicial effect of the evidence:

37 In R. v. Seaboyer, supra, McLachlin J. listed four factors a judge should take into account in determining the admissibility of evidence and in doing so, she referred to McCormick's Handook of the Law of Evidence, 2nd ed. (1972) at pages 438-440. Those four factors, which are general principles that ought to guide a court in determining the admissibility of defence evidence of reputation, may be summarized as follows:

1. The danger that the evidence will arouse the jury's emotions of prejudice, hostility or sympathy. I am satisfied that the proposed evidence would not unduly engage any of these concerns.

2. The danger that the proposed evidence and any evidence in response will create a side issue that will unduly distract the jury from the main issue in the case. I find that this is a real concern in this matter.

3. The likelihood that the evidence will consume an undue amount of time. I find that this is a significant concern in this case.

4. The danger of unfair surprise to the opponent who had no reasonable ground to anticipate the issue and was unprepared to meet it. I do not believe this would be a concern in this case.

38 I find that the proposed evidence of Mr. Campbell's criminal convictions does not have significant probative value to prove that he had a disposition for violence. I am not satisfied that his convictions would assist the jury in arriving at a just verdict with respect to the defence of self defence.

39 Even if I found that the criminal convictions had some probative value to show a disposition for violence, based on the evidence provided on this voir dire, I would not exercise my discretion to allow the evidence to be admitted because it would trigger a side issue that would consume an undue amount of time and that would distract the jury unduly from the main issue in the case. [Footnote omitted.] [Emphasis added.]

[103] I disagree with the reasons of Gillese J.A. in holding that the trial judge did not err in refusing to permit the appellant to adduce evidence of the deceased’s convictions for firearms related offences. These are my reasons for that conclusion.

B. analysis

(1) Determining the relevance of the proposed disposition evidence in light of Scopelliti

[104] As is well known, in R. v. Scopelliti (1982), 1981 CanLII 1787 (ON CA), 34 O.R. (2d) 524, this court held that uncommunicated acts of violence were admissible at the accused’s trial to support a claim of self-defence. Even though the accused in that case was unaware of the deceased’s prior acts of violence, those acts were held to be admissible to show the probability of the deceased having been the aggressor and to support the accused’s evidence that the deceased attacked him. In holding that the evidence was admissible, Martin J.A., speaking for the court, took a principled approach to the admissibility of disposition evidence. His reasoning is summarized in this passage, at p. 536:

However the admission of such evidence accords in principle with the view expressed by this Court that the disposition of a person to do a certain act is relevant to indicate the probability of his having done or not having done the act. The law prohibits the prosecution from introducing evidence for the purpose of showing that the accused is a person who by reason of his criminal character (disposition) is likely to have committed the crime charged, on policy grounds, not because of lack of relevance. There is, however, no rule of policy which excludes evidence of the disposition of a third person for violence where that disposition has probative value on some issue before the jury: see R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 7 O.R. (2d) 750, 23 C.C.C. (2d) 160 at 167, 29 C.R.N.S. 191; affirmed 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824, 33 C.C.C. (2d) 360, 73 D.L.R. (3d) 759; R. v. Schell and Paquette (1977), 1977 CanLII 1939 (ON CA), 33 C.C.C. (2d) 422 at 426.

[105] Thus, the admissibility of disposition evidence turns not on the particular label attached to it, but on its relevance to the issues in the case. In Scopelliti, the accused sought to admit the evidence of the deceased’s prior acts of violence to show, in a self-defence case, that it was more likely that the unarmed deceased were the aggressors. But, evidence of propensity is nothing more than circumstantial evidence, and it can be admissible for a myriad of reasons. Doherty J.A. made this point in R. v. Watson (1997), 1996 CanLII 4008 (ON CA), 30 O.R. (3d) 161 (C.A.), where self-defence was not raised and the evidence sought to be admitted was evidence of habit rather than mere disposition. As he said, at p. 174: “[l]ike evidence of habit, evidence of disposition can constitute circumstantial evidence of conduct on a specific occasion.”

[106] The relevance of the prior convictions becomes clear when seen in the light of the position taken by defence counsel on the application. While it may have been defence counsel’s ultimate aim to establish that the deceased was the aggressor, the record shows that counsel sought to have the evidence adduced for the narrower purpose of showing the likelihood that the deceased was in possession of a handgun.

[107] These are not mutually exclusive positions. Defence counsel made this point in his submissions on the voir dire:

So at the end of the day, the deceased has a criminal record for a gun, therefore he’s more likely to have, in Jackson’s case, therefore, he’s more clearly, he’s more likely, okay; to what degree more likely, I don’t know. And I don’t, I don’t, well, I’m not speculating, and therefore, it’s more likely that he had a gun. And remember, he’s a drug dealer, it’s more likely he had a gun when he was in Apartment 1003 on December 13^th, which therefore makes it more likely that what Tammy Stringer is saying, that she thought it was going to be a gunfight, is actually not some concoction but an actual, you know, a credible assertion by a third party, which makes it therefore likely that what Troy Michaud is saying about the, about the deceased moving aggressively towards the accused was more likely because you’re going to be a bit more emboldened if you’ve got a gun, which also makes it more likely that when the accused testifies and states, ‘I thought he was reaching for a gun’ that his version of events becomes more believable and therefore this type of disposition evidence is relevant along those likely lines of inquiry to self-defence.

[108] Thus, evidence that the deceased was in possession of a gun could be used by the jury as circumstantial evidence that, at the critical moment, he reached for a gun. This, in turn, would support the appellant’s self-defence claim.

[109] Even if defence counsel was overreaching in his ultimate position, the trial judge should have considered whether the evidence was admissible on the more narrow basis advanced by the defence: see e.g. R. v. Abbey, 2009 ONCA 624, (2010), 97 O.R. (3d) 330 at para. 101. In my view, merely finding that the facts of this case are not as compelling as in Watson does not answer the admissibility question. I will return to Watson below.

(2) The test for excluding probative defence evidence

[110] I also differ with Justice Gillese in her assessment of the test used by the trial judge for excluding probative defence evidence.

[111] As Justice Gillese properly points out the trial judge referred to Seaboyer in identifying the factors a judge should consider “in determining the admissibility of defence evidence of reputation”. Unfortunately, his only statement of the balancing test it entails was drawn from the trial decision in R. v. Yaeck, [1989] O.J. No. 3002 (S.C.J.), which he summarized, at para. 24, as follows: “The evidence which is proposed for admission must have significant probative value to prove a disposition for violence.” At para. 38 of his reasons, the trial judge stated that he found the evidence of the deceased’s criminal conviction “does not have significant probative value”.

[112] However, on the appeal in Yaeck, this court held that the trial judge had stated too strict a test and that the test for admissibility is not whether the evidence had significant probative value, but whether it had “sufficient probative value for the purpose for which it is tendered to justify its admission”: (1992), 1991 CanLII 2732 (ON CA), 6 O.R. (3d) 293 at 310, citing Scopelliti at 539.

[113] Further, leaving aside the use of “significant” probative value as the test, the trial judge appeared to use a simple balancing test, such as would apply to Crown evidence but does not apply to defence evidence. He said this, at para. 36:

I am mindful, that even if I felt the proposed evidence of Mr. Campbell’s convictions was relevant, I have a residual discretion to exclude the evidence if I felt the prejudicial effect of the evidence exceeded its probative value. [Emphasis added.]

[114] Again, as stated in Seaboyer and made clear in Watson, at p. 176:

Where the evidence found to be relevant is offered by the defence in a criminal case, it will be excluded … only where the prejudice substantially outweighs the probative value.

[115] Despite the several references to Seaboyer in the trial judge’s reasons, I am convinced that he did not use the correct test.

(3) Probative Value

[116] I have already dealt, to some extent, with the question of whether the prior convictions were probative of the deceased’s disposition for acts of violence. As I have said, the evidence should have been dealt with on the narrower basis of whether it showed that the deceased had a disposition to carry firearms. In my view, evidence that the deceased had one conviction for transferring a firearm and two convictions for possessing restricted firearms with ammunition had sufficient probative value on the issue of whether he had a disposition for carrying firearms.

[117] The trial judge concluded that the evidence of the prior convictions had no probative value. He did so because the convictions were from several years earlier and did not constitute evidence of acts of violence. I disagree with this analysis.

[118] I deal first with the time gap. The principle reason for excluding disposition evidence on the basis of the passage of time is that the person’s character may have changed in the intervening period: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at para. 122. Thus, it is necessary to closely examine the possible reasons for the gap. In this case, the gap between the events giving rise to the prior firearms convictions and the present shooting was approximately four years, from October 2002 to December 2006. However, for much of this time the deceased was in pre-sentence custody (nine months) and thereafter serving two thirds of a two-year sentence of imprisonment. It is not disputed that for at least some of the time following his release he was dealing in drugs. In my view, therefore, it cannot be said that the deceased must have changed his character such that the prior convictions are not still a potentially reliable indicator of his disposition for carrying firearms.

[119] Justice Gillese points out that there was other evidence to support the defence theory because there was evidence that the deceased was a drug dealer and it is notorious that drug dealers often carry handguns. She therefore infers that the convictions would have added little, if anything, to the defence case. I do not agree. In any event, as I understand the record, the only evidence to this effect was from Troy Michaud, who testified that when he was a drug dealer he carried a firearm. While this was not unhelpful to the defence, the only evidence aside from the appellant’s that the deceased carried a gun would have been in the deceased’s convictions for firearms offences. Moreover, once it is accepted that evidence that drug dealers carry handguns is admissible and probative on the issue of whether the deceased was armed, evidence that this particular drug dealer has carried firearms in the recent past must also be probative.

[120] In Scopelliti, at p. 538, Martin J.A. put the test for admissibility in the context of that case in the following terms:

I agree, of course, that evidence of previous acts of violence by the deceased, not known to the accused, must be confined to evidence of previous acts of violence which may legitimately and reasonably assist the jury in arriving at a just verdict with respect to the accused's claim of self-defence. To exclude, however, evidence offered by the accused which is relevant to prove his innocence would not, in my view, be in the interests of justice. [Emphasis added.]

[121] The only other condition of admissibility adopted by Martin J.A. was that there be some other appreciable evidence of the deceased’s aggression on the occasion in question, lest the evidence of the deceased’s bad character be taken as an excuse for the killing: see Scopelliti at p. 535. That evidence could have been found in the expected evidence of Tammy Stringer.

[122] I agree with the trial judge and Gillese J.A. that Watson is a different case than this. It involved evidence as to the deceased’s habit of carrying a gun, rather than disposition, and was not a self-defence case. However, in my view, those differences are not significant and the reasoning in that case assists the appellant’s case.

[123] In Watson, in which the issue was whether the accused was an aider and abetter to a murder actually committed by two coaccuseds, the evidence was offered in support of the proposition that the victim was armed and was killed in a spontaneous gunfight with one of the accused’s confederates. This inference, if accepted, would make it less likely that the deceased was killed as part of a plan to execute the deceased to which the accused was party.

[124] As Doherty J.A. pointed out, at p. 172, the proposed evidence had to pass through two steps in order to be relevant:

1. Does the fact that the deceased always carried a gun make it more likely that he was in possession of a gun when he was shot?

2. Does the fact that the deceased was in possession of a gun when he was shot make it less likely that the appellant was party to a plan to kill or do harm to the deceased, formed some time prior to his arrival with Headley and Cain at the rental unit?

[125] A similar reasoning process applies here, albeit with some modifications:

1. Does the fact that the deceased was convicted of three firearms offences make it more likely that he had a disposition to carry a firearm?

2. Does the fact that the deceased had a disposition to carry a firearm make it more likely that he was in possession of a gun when he was shot?

3. Does the fact that the deceased was in possession of a gun when he was shot make it more likely that he had drawn the gun when he was shot?

[126] I would answer all three questions in the affirmative. Convictions for three firearms offences based on the events of two separate incidents in the recent past does make it more likely that the deceased had a disposition to carry a firearm. In turn, that disposition makes it more likely, in the way contemplated by an admissibility inquiry, that the deceased had a firearm when he was shot.

[127] With respect to the trial judge’s conclusion that the proposed evidence did not show acts of violence, it is true that the fact that the deceased was in possession of a gun when he was shot is not directly linked to the question of whether he drew his gun at the critical time. However, a logical chain of inferences leads to the conclusion that it does make that fact more likely: see e.g. Watson, at p. 173.

[128] Moreover, the evidence of the prior convictions did not stand alone. It had to be considered with the expected evidence of Ms. Stringer and Mr. Michaud.

[129] Admittedly, evidence of habit can be stronger than evidence merely showing a disposition, but it has never been the case that evidence showing a particular disposition of the deceased must reach the level of habit to be probative. As Doherty J.A. said in Watson at p. 174:

Like evidence of habit, evidence of disposition can constitute circumstantial evidence of conduct on a specific occasion. The inferences necessary to render disposition evidence relevant to prove conduct on a specific occasion may be more difficult to draw than those required where evidence of habit is tendered.

[130] In the context of the issues in this case, the prior convictions could have legitimately and reasonably assisted the jury in arriving at a just verdict. This evidence, together with Ms. Stringer’s evidence and the appellant’s evidence could have led the jury to find that the deceased did have a firearm. Such a finding would significantly strengthen the self-defence claim.

(4) Prejudicial Effect

[131] The admissibility of disposition evidence is not determined by its probative value alone. If the prejudicial effect of admitting the evidence substantially outweighs its probative value, the evidence can be excluded. In most cases involving the bad character of the deceased, the most significant prejudicial effect is the possibility that the evidence will arouse emotions of prejudice or hostility towards the deceased. As stated in Scopelliti at pp. 538-39:

Since evidence of prior acts of violence by the deceased is likely to arouse feelings of hostility against the deceased, there must inevitably be some element of discretion in the determination whether the proffered evidence has sufficient probative value for the purpose for which it is tendered to justify its admission. Moreover, great care must be taken to ensure that such evidence, if admitted, is not misused.

[132] The trial judge found that the proposed evidence would not unduly engage any of these concerns. He also found that that there was no danger of unfair surprise. I agree with those findings.

[133] The trial judge did find a prejudicial effect in the danger that the evidence could create side issues that would unduly distract the jury and consume an undue amount of time. The trial judge did not identify the side issues that would lead to these serious concerns. I assume that the trial judge’s concerns, which are echoed in my colleague’s reasons, are anchored in the problem that allowing the appellant to adduce evidence of the deceased’s disposition would open the door to the Crown leading evidence of the appellant’s disposition. Further, while the appellant sought to limit the admissibility to proof of the convictions, it may be that either the Crown or defence would attempt to lead evidence of the facts underlying either the deceased’s or the appellant’s convictions.

[134] The admissibility of prior acts of violence on the part of the accused, where that accused has sought to adduce evidence of the deceased’s disposition, is not entirely settled. Martin J.A. left the issue open in Scopelliti at p. 540:

The learned trial judge was clearly right in stating that the respondent having introduced evidence that the deceased were of violent disposition, the Crown was entitled to refute this evidence by calling evidence that the deceased were of peaceable disposition. Moreover, the respondent having introduced evidence that he was a person of peaceable character it was also open to the Crown to call evidence to rebut such evidence of peaceable character. I would wish, however, to guard myself against being taken to hold that, even if the respondent had not adduced evidence of his peaceable character, it would not have been open to the Crown, to adduce evidence in reply with respect to the respondent's disposition for violence, if such were the case, as the trial judge's reasons seem to imply. It may be that by introducing evidence of the deceased's character for violence, an accused impliedly puts his own character for violence in issue. See Wigmore on Evidence, vol. I at p. 472. However, I set aside this question until it requires to be decided.

[135] Even if the appellant did put his own character in issue by adducing evidence of the deceased’s record for firearms offences, it is not a fore-gone conclusion that this would have cleared the way to a wide-open, no holds-barred inquiry into the appellant’s background or all the facts underlying the deceased’s convictions. The trial judge would still have been required to consider the probative value and prejudicial effect of that evidence. I think it highly unlikely that the Crown’s response to the appellant’s leading evidence of the deceased’s convictions would have been to insist that the facts underlying those convictions be adduced. The facts summarized at para. 8 of the trial judge’s reasons were that the deceased was alleged to be a member of a criminal gang known as the Trethewey Gangster Killers, which is connected to the notorious Crips organized gang; that the guns that the deceased offered for sale were said to have been stolen in a robbery of a sporting goods store in which an employee was killed; that the deceased attempted to assist the killer in evading the police; that the deceased stated that he had at least seven handguns; and that 60 handguns were stolen during the robbery.

[136] As to the evidence of the appellant’s character, it must be remembered that because the appellant testified at his trial some of his criminal record was before the jury including convictions in 1997 for theft (two convictions), in 2000 for assault, in 2005 for carrying a concealed weapon (a knife), and in 2006 for failing to comply and for trafficking in crack cocaine. If the deceased’s convictions were put before the jury, the Crown might have been entitled to lead evidence that the appellant also had convictions in 1995 for assault with a weapon, in 1997 for robbery (two convictions), and in 2000 for aggravated assault and for careless use of a firearm.

[137] While the Crown might have sought to lead evidence of the facts underlying those convictions, it is not at all clear that this evidence would have been admissible. The most serious allegations concerned the facts underlying the 2000 conviction for aggravated assault, where it was alleged that the appellant was originally charged with attempted murder after “multiple people were shot”. Given that this incident had taken place six years earlier, the trial judge might have exercised his discretion to exclude the underlying facts. It appears that the Crown would also have sought to lead evidence of the facts of a robbery by the appellant several months after the killing before his arrest. In any event, the appellant was prepared to run that risk in order to have evidence admitted that he considered crucial to his defence. In my view, he should have been given that opportunity, despite the increased time it may have taken.

[138] In any event, it is not apparent why the introduction of this evidence would so distract the jury and consume so much time that it was not worth receiving. This was a month-long trial, mostly consumed by prosecution evidence. Allowing one or two more days would not, it seems to me, have constituted an undue burden on the legal system. I refer again to Martin J.A.’s comments in Scopelliti, at p. 538: “To exclude, however, evidence offered by the accused which is relevant to prove his innocence would not, in my view, be in the interests of justice.”

C. Conclusion

[139] To conclude, the evidence had probative value and its probative value was not substantially outweighed by its prejudicial effect. In my view, this is not a proper case in which to apply the proviso in s. 686(1)(b)(iii) of the Criminal Code. Doherty J.A. came to a similar conclusion in Watson at p. 178:

In so far as the applicability of s. 686(1)(b)(iii) is concerned, I am guided by Wildman v. R., 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311, 14 C.C.C. (3d) 321, a case in which the court addressed the applicability of the curative proviso where the trial judge had improperly excluded potentially exculpatory evidence proffered by the defence. Lamer J., for a unanimous court, said at p. 329 S.C.R., pp. 335-36 C.C.C.:

The determination as to whether the verdict "would necessarily have been the same if such error had not occurred" is generally made upon a reading of the evidence put to the jury.

But when the error of law is the preclusion of exculpatory evidence, then the determination must be made with regard to the entirety of the evidence, that evidence having been included, and in the light of the effect the excluded evidence could, within reason, possibly have had on the evidence that did go to the jury. Any reasonable effect that excluded evidence could have had on the jury should, in applying s. 613(1)(b)(iii), enure to the benefit of the accused. When the excluded evidence is, as in this case, of a certain importance and might reasonably have had an effect on the jury then, even assuming we in this Court would have nevertheless convicted, I find it difficult to be satisfied that the jury would have necessarily agreed with us. Any reasonable, possible effect of that excluded evidence on the jury should enure to the benefit of Wildman.

[140] The Crown presented a formidable case against the appellant. His claim of self-defence was weakened by the number of shots fired, the evidence that at least one shot was fired when the deceased may have been retreating and the fact that no gun was found with the deceased. Nevertheless, the excluded evidence was a crucial building block for the defence theory that the deceased was armed. This is not a case in which the Crown’s evidence is so overwhelming that a conviction would invariably result: see R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239 at para. 82. There is, in my view, a reasonable possibility that the excluded evidence, when taken with other evidence, could have persuaded the jury that the deceased was armed and was reaching for a handgun when he was shot, leaving the jury with a reasonable doubt.

[141] Accordingly, I would allow the appeal, set aside the conviction and order a new trial.

Released: October 17, 2013 (“E.E.G.”)

“M. Rosenberg J.A.”

[^1]: R v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670.

[^2]: Prior to the Crown’s cross-examination of Ms. Stringer, defence counsel was granted permission to cross-examine Ms. Stringer to clarify inconsistencies between her trial testimony and her videotaped statements to police on December 14 and 19, 2006. Section 9(2) of the Canada Evidence Act allows for a witness, with the court’s permission, to be cross-examined by the party producing the witness when the witness’s testimony conflicts with a prior written or otherwise recorded statement.