COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Saleh, 2013 ONCA 742

DATE: 20131210

DOCKET: C52879

Watt, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fadi Saleh

Appellant

Marie Henein and Christine Mainville, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard: May 16, 2013

On appeal from the conviction by Justice Colin D.A. McKinnon of the Superior Court of Justice, sitting with a jury on February 26, 2010.

Watt J.A.:

[1] In the drug business, loyalty and integrity are important. At every step along the way. Wholesalers. Brokers. Retailers. Street dealers. Everyone has their role. And everyone gets their due, their full due. No one gets short-changed. And no one gets cut out.

[2] Sometimes, however, loyalty and integrity get left behind. Forgotten. Ignored. Payments are short. Deliveries are light. Brokers are cut out. Retailers deal directly with wholesalers.

[3] Disloyalty has its price. And sometimes that price is very steep. As here. One death, a murder. Three trials. Two men convicted of first degree murder. The third acquitted.

[4] A jury convicted Fadi Saleh of first degree murder. He says his conviction is flawed because the trial judge admitted some evidence that made his trial unfair, failed to instruct the jury correctly on two unrelated issues, and gave a wrong answer to a question asked by the jury during their deliberations.

[5] These reasons explain why I would allow the appeal and order a new trial.

THE BACKGROUND FACTS

[6] An overview of the evidence adduced at trial, along with a brief detour into some features of the procedure followed there, provides an adequate setting for a determination of the claims of error advanced here.

The Principals and their Relationship

[7] Hussein El-Hajj Hassan (Hassan, or the deceased) was a drug dealer in the Ottawa-Gatineau Region. Hassan got his drugs – cocaine - from Fadi Saleh (the appellant) who acted as a middleman or broker between Hassan and Rafei Ebrekdjian (Ebrekdjian) in Toronto.

[8] Shant Esrabian (Esrabian) and Mark Yegin (Yegin) were friends of the appellant and the deceased. Both were involved in the drug trade. Yegin acted as an enforcer for the appellant.

[9] Hassan did not deal directly with Ebrekdjian, rather provided the purchase price in cash to the appellant to be delivered to Ebrekdjian. Routinely, the amounts received by Ebrekdjian were less than the agreed upon purchase price.

The Change in Suppliers

[10] Sometime in 2004, Hassan decided to eliminate one link in his supply chain – the appellant. Hassan began to deal directly with Ebrekdjian. But Ebrekdjian told the appellant about the new arrangement. The appellant was not pleased. Ebrekdjian had received significant sums of money from Hassan to fund further purchases.

[11] On August 19, 2004 Ebrekdjian received a further $170,000 from Hassan. But the funds were less than expected. Ebrekdjian decided that he did not wish to do business with the Hassan any longer. He advised the appellant of his decision and directed the appellant to return Hassan’s money to him. The appellant arranged for his trusted associate, Axe Sleiman, to pick up the money from Ebrekdjian during the evening of August 19, 2004.

The Meeting with Sasquatch

[12] Paul Porter was a friend of the appellant involved in the drug trade in Cornwall about an hour from the Ottawa–Gatineau region. Porter was a member of the Hell’s Angels. His street name was Sasquatch. Porter knew the appellant but had only seen Hassan a couple of times in the appellant’s company.

[13] Mark Yegin told Hassan that a meeting had been set up with Sasquatch for the evening of August 20, 2004. Those present would be discussing drug distribution in the Cornwall area. The meeting was the lure for Hassan. Porter gave evidence that no such meeting was ever arranged.

[14] Yegin picked up Hassan in Esrabian’s Jeep and headed towards Cornwall. The appellant and Esrabian followed in another vehicle.

[15] According to Mark Yegin, the appellant gestured from the vehicle he was driving that Yegin and Hassan should follow them. Both vehicles followed the same highway exit to an isolated, dead end area. All four men got out.

[16] Ebrekdjian’s cell phone records suggest that he was in Toronto at the relevant time, although later that evening his phone was in contact with Esrabian’s phone.

The Arrests

[17] About ten months later, the appellant, Yegin, Esrabian, and Ebrekdjian were arrested on a charge of first degree murder. A few days later, the charge against Ebrekdjian was withdrawn.

[18] Immediately after their arrest, Esrabian and Yegin gave statements to the police. They attempted to obtain a favourable disposition on their charges by providing information to investigators. Both admitted that they were present when Hassan was killed but claimed that they were unaware that Hassan would be killed and were shocked when the appellant shot him.

[19] Yegin told investigators that the appellant shot Hassan with two different guns. One of the shots, he said, was to the deceased’s head.

The Recovery of the Deceased’s Body

[20] After his post-arrest police interview, Mark Yegin led investigators to the place where the deceased’s body had been buried immediately after the shooting.

[21] Hassan had suffered two close-range gunshot wounds: one to his upper right abdomen, and one to his upper left chest. Hassan did not suffer a gunshot wound to the head. The post-mortem examination also revealed several skull fractures caused by blunt force trauma. The deceased’s right wrist and hand had been severed and were missing from the body. The amputation likely occurred in the period immediately following the deceased’s death.

The Ballistics Evidence

[22] Three cartridge casings recovered from the area where Hassan was buried had all been fired in the same gun. A bullet fragment recovered from the body of the deceased could also have been fired from the same or a similar gun. The firearm discharged was a .45 calibre handgun, an Eagle Gun Apache Mark II Carbine, a Taurus Millennium, or similar model. Nothing indicated that a 9 mm firearm had been used.

The Cell Phone Records

[23] The evidence at trial included cell phone records and testimony about cell phone usage and location at different times during the evening of August 20, 2004.

[24] The deceased’s cell phone records suggests that he was near Yegin’s apartment around 8 p.m. on August 20, 2004, part way between Yegin’s place and the location of his body at 8:13 p.m., and at the grave site by at least 8:48 p.m. The cell phone was on its way back to Ottawa at about 9 p.m. and was shut off at 9:13 p.m.

[25] Esrabian’s cell phone records suggests that he was near the appellant’s home in Gatineau until about 7:23 p.m. and near the grave site between 7:58 p.m. and 9:06 p.m. The records are consistent with the phone being at a casino before returning to the appellant’s home by 9:43 p.m.

[26] Yegin’s cell phone records suggests that he was near the appellant’s home around 6:13 p.m., then returned to his home until at least 8 p.m. No further calls took place until 9:08 p.m. when the phone was in the vicinity of the grave site. By 10:16 p.m., Yegin’s phone was in the vicinity of his home.

[27] The appellant’s cell phone records indicate that from 11:17 a.m. on August 20, 2004 until 3:30 a.m. the next day, all calls received were forwarded to voicemail. These records tend to support any of three inferences:

i. the cell phone was turned off;

ii. the battery in the cell phone was dead; or

iii. the cell phone was outside the city limits of Ottawa where it did not work.

The Appellant’s Version

[28] In a videotaped interview by investigators about six weeks prior to his arrest, the appellant told police that he couldn’t remember precisely what he had done on August 20, 2004. He believed that Esrabian was staying with him and that he, Esrabian and Yegin, went to the casino together. He denied having been involved in any dispute with Hassan and told investigators that Yegin would not have taken Hassan to a meeting with Porter. Among the group, only the appellant knew Porter.

The Procedural History

[29] Despite the allegation of a joint venture, the appellant, Yegin, and Esrabian were charged separately and proceeded against individually. Separate preliminary inquiries were held between June and November, 2006.

[30] Esrabian was tried first. He testified in his own defence. Yegin did not testify at Esrabian’s trial. Esrabian was convicted of first degree murder in June, 2008.

[31] Yegin was tried next. He did not give evidence in his own defence. Esrabian testified at Yegin’s trial. In November, 2008 a jury acquitted Yegin.

[32] The appellant was the last to be tried. He did not testify. Crown counsel sought to introduce the preliminary inquiry testimony of both Yegin and Esrabian, when both refused to testify for the Crown at the Appellant’s trial, under s. 715(1) of the Criminal Code, R.S.C. 1985, c. C-46. The trial judge excluded Esrabian’s evidence but admitted the preliminary inquiry testimony of Yegin. The jury found the appellant guilty of first degree murder.

THE GROUNDS OF APPEAL

[33] The appellant challenges his conviction on four grounds. I would paraphrase those grounds as errors:

i. in admitting Yegin’s preliminary inquiry testimony as evidence at trial;

ii. in failing to adequately caution the jury about the danger of acting on the evidence of Yegin;

iii. in failing to relate the evidence adduced at trial to the controversial issues of the appellant’s presence at and participation in the unlawful killing of Hassan; and

iv. in responding to a jury question about the need for presence when the killing occurred to establish the appellant’s liability.

Ground 1: The Admissibility of the Preliminary Inquiry Testimony of Mark Yegin

[34] Mark Yegin and Shant Esrabian testified as witnesses for the Crown at the appellant’s preliminary inquiry. Both were subpoenaed to give evidence for the Crown at the appellant’s trial. Both refused to testify. The trial judge admitted Yegin’s preliminary inquiry testimony but excluded that of Esrabian on an application by the Crown under s. 715(1) of the Criminal Code. This ground of appeal emerges from that ruling.

[35] Some further background is necessary to situate this claim of error in its appropriate context.

Mark Yegin’s Statements

[36] Mark Yegin was the principal focus of the investigation that followed the disappearance of Hassan on August 20, 2004. He spoke to the police several times in the months following Hassan’s disappearance.

[37] On June 27, 2005 Mark Yegin, the appellant, Shant Esrabian and Rafei Ebrekdjian were arrested for the murder of the deceased. Yegin agreed to provide a statement, testify for the Crown, and lead police to the location of Hassan’s body if he were released from custody and the charge against him withdrawn. Investigators accepted his offer provided he told them the truth.

[38] In his first sworn statement, Yegin told investigators that he and Hassan left Hassan’s apartment in Esrabian’s Jeep en route to Cornwall on business. The appellant and Esrabian followed in Yegin’s car. Somewhere along the highway, the appellant pulled up beside them. Yegin told Hassan that the appellant was also going to Cornwall. The appellant pulled off the highway and Yegin followed him to a dead end. The appellant approached the Jeep and told Hassan to get out of the vehicle. Hassan followed the appellant’s instructions. The men argued. According to Yegin, the appellant shot Hassan twice, then a third time in the head. The appellant used two guns. Yegin and Esrabian were shocked. On the appellant’s instructions, Yegin and Esrabian got shovels from Yegin’s car trunk, dug a hole, and buried the deceased. All three men then left.

[39] After completing the statement, Yegin led police through a wooded area to the place where Hassan’s body had been buried. Yegin was released from custody, the charge against him withdrawn.

[40] On June 30, 2005 investigators told Yegin that his story didn’t fit with the physical findings; a single shooter–two gun killing was implausible. Yegin revised his account. Esrabian shot first. The appellant then shot Hassan in the head with a different gun. Blood spattered from the head wound. Police re-arrested Yegin and charged him with first degree murder.

[41] Mark Yegin testified on two separate days at the appellant’s preliminary inquiry during the following summer.

[42] Yegin gave evidence that he had no idea that Hassan was going to be killed. Yegin first saw the appellant on the highway. When the appellant gestured towards him, Yegin followed. Yegin was not sure whether anyone was with the appellant in his vehicle. Yegin followed the appellant to a dead end. There, the appellant and Hassan argued in Arabic. Esrabian approached them and shot Hassan twice in the chest. The appellant then shot Hassan in the head and directed Yegin and Esrabian to move Hassan’s body.

[43] Yegin gave evidence that the appellant got a pick-axe and two shovels from Yegin’s Chevy Lumina. Yegin could not continue digging the grave. He left and disposed of Hassan’s cell phone on the way back to the appellant’s house where he rejoined the appellant and Esrabian. The men changed their clothes, disposed of Hassan’s identification, and moved his vehicle to another location before heading to the casino to establish an alibi.

[44] Yegin later testified at Esrabian’s preliminary inquiry. He also provided a statement about the killing to the National Parole Board at his parole hearing after he was sentenced for contempt of court.

Shant Esrabian’s Statements

[45] Shant Esrabian gave four statements to police, testified at his own bail hearing, and gave evidence at the appellant’s preliminary inquiry, at Yegin’s preliminary inquiry and trial, and at his own trial. Like Yegin, he refused to testify at the appellant’s trial.

[46] At first, Esrabian denied any involvement in the shooting of the deceased. Confronted by investigators with Yegin’s statement blaming the appellant for the shooting, Esrabian then recalled that the appellant had a gun. He was uncertain whether Yegin also had a gun. Esrabian wanted to see more of Yegin’s statement. He then denied shooting Hassan and claimed that the appellant had not done so either.

[47] In sworn statements to investigators, Esrabian claimed that Yegin shot Hassan in the chest. He fired a second shot, then a third. All three dug the grave for Hassan’s body. Esrabian said later that the appellant knew what was going to happen.

[48] At the appellant’s preliminary inquiry, Esrabian gave evidence that Yegin shot Hassan twice in the chest, then hit him on the head. Yegin used a .45 calibre gun. The appellant, according to Esrabian, did not know what was going on. A third shot was fired. Esrabian assumed that the appellant fired the third shot using a 9 mm gun.

[49] At his own trial, Esrabian maintained that Yegin shot Hassan and that the appellant knew nothing about what was to happen at the end of the road.

The Application at Trial

[50] When both Yegin and Esrabian refused to testify as Crown witnesses at the appellant’s trial, Crown counsel sought to introduce the evidence each gave at the appellant’s preliminary inquiry as evidence at trial under s. 715 of the Criminal Code.

[51] Trial counsel for the appellant conceded that the requirements of s. 715 had been met, but sought exclusion of the evidence on the ground that its admission would be unfair to the appellant. As an alternative, counsel asked the trial judge to conduct the trial without a jury by overriding the refusal of Crown counsel at trial to consent to a judge-alone trial under s. 473(1) of the Criminal Code.

The Ruling of the Trial Judge

[52] The trial judge dismissed the application to admit the preliminary inquiry evidence of Esrabian. He reasoned that admitting this preliminary inquiry evidence would operate unfairly to the appellant. Esrabian had testified in three further proceedings after he had given evidence at the appellant’s preliminary inquiry. The appellant was not a party to any of those proceedings. Some of Esrabian’s evidence was in French and had not been translated. Esrabian had provided a new version of events that implicated the appellant. The further evidence that could compromise the preliminary inquiry testimony could not be put before jury in any meaningful way. Counsel for the appellant could not cross-examine Esrabian because he refused to testify.

[53] The trial judge permitted Crown counsel to introduce the preliminary inquiry testimony of Yegin who had been fully cross-examined at the inquiry on all his [then] previous statements. Yegin had only testified once since the appellant’s preliminary inquiry, at Esrabian’s preliminary inquiry. Counsel could put any contradictory evidence that emerged there before the jury to challenge Yegin’s credibility and the reliability of his evidence. Trial counsel for the Crown had suggested this procedure during argument.

[54] The jury heard the audiotapes of the testimony Yegin gave at the appellant’s preliminary inquiry. The tapes and transcripts of the evidence were filed as exhibits, along with the impeachment materials submitted by defence counsel. Each was the subject of final instructions.

The Arguments on Appeal

[55] For the appellant, Ms. Henein advances several arguments in support of her principal submission that the trial judge was wrong in admitting Yegin’s evidence from the preliminary inquiry at the appellant’s trial.

[56] Ms. Henein says that in determining the admissibility issue, the trial judge failed to take into account several critical factors. Yegin was a crucial witness, the only person to put the appellant at the scene of the killing with a gun in his hand. Admitting the evidence deprived the appellant of the opportunity to cross-examine Yegin on his later statements and the substance of the contrary version provided by Esrabian. Further, the trial judge failed to consider the impact of admitting Yegin’s prior testimony but excluding that of Esrabian on the fairness of the appellant’s trial.

[57] Ms. Henein contends that the manifest unreliability of Yegin’s evidence is a crucial factor in the trial fairness analysis because the principled approach to hearsay informs the interpretation of s. 715 and the exercise of the statutory discretion for which the section provides. The record is barren of any independent confirmation of Yegin’s evidence.

[58] The lack of opportunity to cross-examine Yegin on the basis of information provided after his testimony at the preliminary inquiry, a critical factor in the fairness analysis, was not considered by the trial judge. The distinction that the trial judge drew in admitting Yegin’s evidence but excluding that of Esrabian - the degree of difficulty associated with the introduction of impeaching evidence - was not an appropriate consideration. By admitting one without the other, the trial judge deprived the appellant of a fair trial by eliminating the inconsistencies between the two accounts and demonstrating the evolution of these versions as they related to each other.

[59] Ms. Henein says that the trial judge erred as well in rejecting the appellant’s alternative argument that the trial continue without the jury. This remedy, Ms. Henein contends, was available on the basis of ensuring trial fairness as well as under s. 24(1) of the Canadian Charter of Rights and Freedoms. It could also have been granted under the discretion discussed in R. v. Potvin, 1989 CanLII 130 (SCC), [1989] 1 S.C.R. 525, a discretion that is not limited to the exclusion of evidence.

[60] For the respondent, Ms. Bartlett-Hughes is contrary-minded. Neither aspect of the trial judge’s ruling, she says, reflects error.

[61] Ms. Bartlett-Hughes submits that the admission of Yegin’s preliminary inquiry evidence did not render the appellant’s trial unfair. The trial judge had to balance fair treatment of the appellant with society’s interest in the admission of probative evidence so that the trier of fact could get to the truth of the allegations. He did so. His decision reflected a consideration and appropriate weighing of the relevant factors. His decision is entitled to deference on appellate review.

[62] Ms. Bartlett-Hughes argues that the trial judge was not required to become enmeshed in a comprehensive assessment of Mark Yegin’s credibility. Such an assessment blurs the distinction between threshold and ultimate reliability. The issue is not the truth of the hearsay, but whether the jury has the tools with which to evaluate it in conjunction with the entirety of the evidence admitted at trial. The jury had the necessary tools, including a recording of Yegin’s evidence.

[63] Ms. Bartlett-Hughes contends that the availability of further information that emerged after Yegin gave evidence at the preliminary inquiry does not render the preliminary inquiry evidence inadmissible. The after-acquired material does not negate the full opportunity for cross-examination defence counsel had at the preliminary inquiry, nor does it render the trial proceedings unfair. The subsequent statements retained the core elements of Yegin’s account, and the excerpts the trial judge permitted the appellant’s trial counsel to file equipped the jurors to determine Yegin’s credibility and the reliability of his evidence, despite Yegin’s absence from the trial. The decision to exclude Esrabian’s preliminary inquiry evidence was a reasoned application of the cost-benefit analysis and does not reflect error.

[64] Ms. Bartlett-Hughes rejects any suggestion of error in the trial judge’s decision not to override Crown counsel’s refusal to consent to continue the trial without a jury. The remedy available under s. 715, she says, is evidentiary exclusion. Nothing more. The circumstances in which a trial judge can override the refusal of Crown counsel to consent to a judge-alone trial under s. 473(1) of the Criminal Code are rare, the standard for an accused to meet demanding. Any scent of unfairness here should be, and was, eradicated by cautionary jury instructions. Trial counsel did not contend that a fair trial required the juxtaposition of the preliminary inquiry evidence of Yegin and Esrabian. That was a strategic tactical decision made by experienced trial counsel, a decision that should not be revisited here.

The Governing Principles

[65] The basis on which the trial Crown sought to introduce the preliminary inquiry evidence of Yegin and Esrabian at the appellant’s trial, and the position taken by trial counsel for the appellant in response, require an examination of two sets of principles. The first has to do with the circumstances in which preliminary inquiry evidence may be admitted or excluded under s. 715 of the Criminal Code. The second defines the scope of a trial judge’s authority to order that a first degree murder trial proceed without a jury despite the absence of the Attorney General’s consent under s. 473(1) of the Criminal Code.

The Admissibility of Prior Testimony

[66] In some circumstances, evidence given in one proceeding may be admitted in another. The authority that permits introduction of evidence taken elsewhere originates in two sources. The first, statutory, is s. 715 of the Criminal Code. The second, common law, is the principled exception to the hearsay rule: R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, at paras. 57 and 60.

[67] In this case, trial counsel for the Crown advanced his case for admissibility under s. 715 of the Criminal Code. It is to the requirements of that section and an exclusionary exception to it that I shall first turn.

The Statutory Authority

[68] In one form or another, what is now s. 715 of the Criminal Code has been around for a long time. For our purposes, the controlling provision is s. 715(1). Its material terms are these:

715(1) Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence,[…]

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

[69] A party who invokes s. 715(1) to introduce at trial evidence given by a witness at the preliminary inquiry into the charge must establish, on a balance of probabilities,

i. that the witness gave evidence at the preliminary inquiry;

ii. that the witness is unavailable to testify at trial for any reason described in the section; and

iii. that the preliminary inquiry evidence was given in the presence of the accused.[^1]

Where these conditions have been satisfied, s. 715(1) directs that the preliminary inquiry evidence be admitted at trial, unless the accused proves that she or he did not have full opportunity to cross-examine the witness at the preliminary inquiry.

[70] Most rules of admissibility, such as hearsay, opinion, similar acts, and extrinsic misconduct are exclusionary. Each is subject to inclusionary exceptions. Section 715(1) is by nature inclusionary, but subject to an exclusionary exception where the accused has not had a full opportunity to cross-examine the witness whose evidence is tendered for admission.

The Exception: “Full Opportunity” to Cross-examine

[71] To exclude evidence that would otherwise qualify for admission under s. 715(1), an accused must demonstrate that she or he “did not have full opportunity to cross-examine the witness”. The operation of the exception is not determined by the use actually made of the opportunity to cross-examine but rather by the availability of a full opportunity to do so: R. v. Ingraham (1991), 1991 CanLII 11719 (ON CA), 66 C.C.C. (3d) 27 (Ont. C.A.), at p. 43; R. v. Davidson (1988), 1988 CanLII 7067 (ON CA), 42 C.C.C. (3d) 289 (Ont. C.A.), at p. 298. The opportunity to cross-examine is contemporaneous with the witness giving evidence at the preliminary inquiry. In a similar way, denials of full opportunity to cross-examine the witness must arise from events that take place at the preliminary inquiry where the witness gives the evidence. Improper judicial interference, for example, may render the opportunity to cross-examine inadequate, thus depriving an accused of a “full opportunity to cross-examine the witness”.

[72] After the witnesses have testified at the preliminary inquiry and the inquiry has concluded with a committal for trial, an accused may acquire additional information that is of impeachment value in association with a witness. The after-the-fact acquisition of this information does not have the effect of converting what was at the time “a full opportunity to cross-examine the witness” into a basis on which to exclude the evidence under the exception to s. 715(1): R. v. Michaud (2000), 2000 CanLII 14347 (NB CA), 144 C.C.C. (3d) 62 (N.B.C.A.), at paras. 20-21; and R. v. Lewis, 2009 ONCA 874, 249 C.C.C. (3d) 265, at paras. 68-69.

The Discretion to Exclude

[73] The language in s. 715(1) of the Criminal Code is discretionary: evidence given at the preliminary inquiry that satisfies the requirements of the subsection “may be admitted as evidence” at trial. The statutory language furnishes the trial judge with a discretion not to admit the previous testimony in circumstances where its admission would operate unfairly to the accused: Potvin, at pp. 547-548. The discretion permits a trial judge to prevent any unfairness that could otherwise result from a purely mechanical application of the subsection: Potvin, at p. 550. This discretion is more expansive than the traditional admissibility rule that excludes evidence the prejudicial effect of which exceeds it probative value: Potvin, at p. 552.

[74] The exclusionary discretion in s. 715(1) is directed at two principal types of mischief: unfairness in the manner in which the preliminary inquiry evidence was obtained, and unfairness in the trial itself caused by the admission of the preliminary inquiry evidence: Potvin, at pp. 551-552. A trial judge should only exercise this discretion after weighing two competing and frequently conflicting concerns (Potvin, at pp. 552-553):

• fair treatment of the accused; and
• society’s interest in the admission of probative evidence to get at the truth of the allegations in issue.

[75] The focus of the trial judge’s concern must be on the protection of the accused from unfairness, rather than the admission of probative evidence without too much regard for the fairness of the adjudicative process: Potvin, at p. 553.

[76] Section 715(1) is a statutory exception to the hearsay rule. It does not follow, however, that the principled approach to the hearsay rule has no place in the interpretation and application of the provision: R. v. Li, 2012 ONCA 291, 110 O.R. (3d) 321, at para. 50. That said, the principled approach may exert a greater influence on the issue of necessity than on that of reliability: Li, at paras. 56 and 60.

[77] Among the relevant factors a trial judge might consider in deciding whether to exclude preliminary inquiry evidence that would otherwise qualify for admission under s. 715(1) is the crucial nature of the evidence itself: Michaud, at para. 26. Equally relevant is the crucial nature of the credibility of the witness whose evidence is tendered for admission: R. v. Tourangeau (1994), 1994 CanLII 4684 (SK CA), 128 Sask. R. 101 (C.A.), at para. 18; and R. v. Castanheira, [1996] O.J. No. 3006 (C.A.), at para. 2.

[78] The circumstances in which evidence previously given may be excluded in the exercise of discretion under s. 715(1) are comparatively rare. The discretion to permit unfairness does not provide the trial judge with an open licence to undermine the object of s. 715(1) by excluding previous testimony as a matter of course: Potvin, at pp. 547-548.

[79] Section 715(1) is not an exhaustive code governing the admissibility of preliminary inquiry testimony at a subsequent trial: Hawkins, at para. 57. For example, where preliminary inquiry testimony fails to satisfy the requirements for admissibility under s. 715(1), it remains open to the trial judge to consider whether the testimony may be admissible under common law principles, for example, under the principled exception to the hearsay rule.

[80] Further, no principled reason would assign compliance with s. 715(1) a place of predominance over any other admissibility rule, as for example the discretion to exclude evidence the prejudicial effect of which exceeds its probative value, or evidence that involves an inordinate amount of time not commensurate with its value, or where the effect of the evidence on the trier of fact would be out of proportion to its reliability: Hawkins, at para. 85; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 3; R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at p. 14.

[81] When an accused seeks to exclude otherwise admissible evidence on the basis that its reception would render the trial unfair, it is critical to remember that a fair trial is a trial that appears fair, both from the perspective of the accused and from the perspective of the community. A fair trial is not the most advantageous trial possible from the accused’s point of view: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 362. A fair trial is not a perfect trial. A fair trial is a trial that satisfies the public interest in getting at the truth, while at the same time preserving procedural fairness to the accused: R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, at para. 45.

The Judge-Alone Trial Alternative

[82] The presumptive mode of trial in cases of first degree murder is trial by jury: Criminal Code, s. 471. Section 473(1) of the Criminal Code expressly permits an allegation of murder, an offence listed in s. 469(a)(vii) of the Criminal Code, to be tried without a jury, provided both the accused and the Attorney General consent to this alternative mode of trial.

[83] The authorities recognize a closely circumscribed jurisdiction in a trial judge, on application by an accused, to direct that the trial of a case of murder be held before a judge sitting without a jury: R. v. McGregor (1999), 1999 CanLII 2553 (ON CA), 43 O.R. (3d) 455 (C.A.), at para. 4; see also, R. v. E.(L.) (1994), 1994 CanLII 1785 (ON CA), 94 C.C.C. (3d) 228 (Ont. C.A.), at pp. 241, 243. A judge should only override the refusal of the Crown to consent to a judge-alone trial under s. 473(1) in the clearest of cases; R. v. Kahn, 2007 ONCA 779, 230 O.A.C. 179, at para. 16.

[84] The prevailing authorities do not articulate a precise standard to be applied on an application to override the refusal of prosecutorial consent under s. 473(1). What does emerge, however, is that the standard is a demanding one, at a minimum the standard required to obtain a change of venue under s. 599(1)(a) of the Criminal Code: Khan, at para. 14. In essence, it falls to the accused to demonstrate, on a balance of probabilities, that the time-honoured statutory and common law procedures designed to preserve and protect the right of every accused to a fair trial by an impartial tribunal are insufficient in the circumstances of the case to ensure a fair trial: Kahn, at para. 15.

[85] The industry of counsel did not unearth any authority that permits a trial judge to direct a judge-alone trial to remedy any potential unfairness caused by the introduction of preliminary inquiry evidence.

The Principles Applied

[86] For reasons that I will develop, I would give effect to this ground of appeal. In my view, the trial judge did not instruct himself properly with respect to the nature and scope of his discretion to exclude the preliminary inquiry evidence tendered under s. 715(1) of the Criminal Code.

[87] At the outset, I acknowledge, as did counsel at trial, that the preliminary inquiry evidence of Yegin and Esrabian met the requirements of s. 715(1) of the Criminal Code. Their evidence was prima facie admissible at the appellant’s trial. Further, I also acknowledge that the issue for the trial judge to determine involves the exercise of judicial discretion, a decision that traditionally, and rightly, attracts substantial deference on review in this court.

[88] Under s. 715(1) of the Criminal Code, the trial judge was required to decide what the effect of the admission of the evidence would be on the fairness of the appellant’s trial: Potvin, at p. 552. To decide this issue, the trial judge had to balance fair treatment of the appellant, on the one hand, with society’s interest in the admission of probative evidence in order to get at the truth of the allegations contained in the indictment, on the other hand: Potvin, at pp. 552-553. The focus of the trial judge’s concern was the protection of the accused from unfairness, not the admission of probative evidence without too much regard for the fairness of the adjudicative process: Potvin, at p. 553.

[89] The evidence at issue here is the only first-hand account about what happened at the killing place. The arrangements. The journey. The confrontation. The shooting. The burial. The flight. The disposal of the indicia of crime.

[90] The decision on this issue, as the trial judge clearly appreciated, was not an easy one. His assignment did not involve the solution of a mathematical equation. Different trial judges will accord different values to competing factors and reach different final conclusions. In the absence of errors in principle, or misapprehensions of the evidence, deference is their rightful due. Regrettably, I have concluded that this experienced trial judge’s analysis is cumbered by several errors that require a new trial.

[91] First, the trial judge failed to consider the manifest unreliability of Yegin in assessing whether the admission of his evidence would operate unfairly to the appellant. Under Potvin, the focus of the trial judge’s concern was to be the protection of the appellant from unfairness. The evidence at issue came from a witness who was present at the shooting. He was charged with the same murder as the appellant. He had a substantial motive to assign blame to others; in particular, to the appellant. His account of events evolved over time, changing when he was confronted with physical findings that belied his version of the events. Yet the jury never saw this witness (as a result of his own conduct), or viewed his cross-examination.

[92] Second, the trial judge failed to consider the impact on the fairness of the trial of the appellant’s inability to confront Yegin, in the presence of the jury, with information obtained after Yegin had testified at the preliminary inquiry. The trial judge appears to have acknowledged the relevance of at least some of this material when he permitted defence counsel to file a printed record of it. The inability of counsel to cross-examine Yegin on this material had a significant impact on trial fairness.

[93] Third, the trial judge erred in failing to consider the effect of excluding Esrabian’s evidence on the fairness of the appellant’s trial that left the jury with only Yegin’s account of the crucial events. In the end, the appellant was denied the benefit of a second version of the crucial events to juxtapose with that of Yegin in an attempt at least to whittle down his level of participation in the killing of Hassan.

[94] Fourth, the trial judge appears to have confined his exercise of an exclusionary discretion to that for which s. 715(1) provides under Potvin. To be fair, the discretion under s. 715(1) was the principal focus of the submissions of counsel at trial. That said, the discretion to exclude evidence tendered under s. 715(1) of the Criminal Code is not limited to the fairness considerations of Potvin. The trial judge has a gatekeeper function to ensure that only relevant, material, and admissible evidence gets before the jury. The appellant was entitled to a cost-benefit analysis of Yegin’s evidence to determine whether its value to the correct disposal of the allegations contained in the indictment exceeded its cost to the litigation process. No such analysis was done.

[95] I would not interfere with the trial judge’s decision not to order that the trial proceed without a jury despite the absence of the Attorney General’s consent under s. 473(1) of the Criminal Code. Even assuming such an order were available based upon trial fairness considerations when s. 715(1) is invoked, no principled reason would support a less rigorous standard than that applicable when the issue arises otherwise. And on this record, in my respectful view, the appellant has not met that standard.

Ground 2: The Vetrovec Instruction

[96] The appellant contends that the trial judge made two errors in his Vetrovec instructions about the preliminary inquiry evidence of Mark Yegin. The first relates to the trial judge’s explanation of the reasons underlying the need for caution in relying on Yegin’s evidence. The second has to do with the items of evidence the trial judge mentioned as potentially confirmatory of Yegin’s testimony.

The Jury Instruction

[97] The trial judge reviewed drafts of his final instructions with counsel. His charge included instructions about the evidentiary value of prior inconsistent statements of non-accused witnesses. He then explained to the jury that he had a special instruction about several witnesses including Yegin and Ebrekdjian. In connection with Yegin, the trial judge noted that Yegin:

i. was an enforcer of drug and other debts owed to drug dealers including the appellant; and

ii. had a serious criminal record including a conviction in the United States.

[98] The trial judge cautioned the jury about relying on the evidence of this group of witnesses:

Common sense tells you that in light of these circumstances, there is good reason to look at the evidence of these witnesses with the greatest care and caution. You are entitled to rely on their evidence even if it is not confirmed by another witness or other evidence, but it is dangerous for you to do so. To the extent that the evidence of Mark Yegin and Rafei Ebrekdjian might confirm the evidence of one another you should be mindful of the fact that they were in a joint enterprise involving drug dealing. Accordingly, you should look for some confirmation of their evidence form somebody or something other than each of them before you rely upon their evidence in deciding whether Crown counsel has proven the case against Fadi Saleh beyond a reasonable doubt.

[99] The trial judge explained the meaning of confirmatory evidence in two passages in his charge:

To be confirmatory the testimony of another witness or witnesses or other evidence should help restore your faith in relevant parts of the evidence of these witnesses. You’re entitled to rely on their evidence even if it is not confirmed by another witness or by other evidence, but I repeat: it would be dangerous for you to do so.

To be confirmatory evidence need not implicate Mr. Saleh. To be confirmatory the independent evidence must confirm relevant portions of the testimony of a witness so that your faith in the witness’s evidence can be reinforced. The evidence to which I am about to refer illustrates the kind of evidence that you may find confirms or supports their testimony. It may help you. It may not. It is for you to say.

[100] The trial judge gave specific illustrations of evidence that was potentially confirmatory of Mark Yegin’s testimony. He told the jury:

Dealing with Mr. Yegin. The fact that Mr. Yegin led the police to Mr. Hassan’s grave could be regarded as compelling confirmatory evidence of Mr. Yegin’s presence at the scene when Mr. Hassan was murdered. You will recall that Mark Yegin testified that when Mr. Hassan’s body was placed in the grave his head was covered with a shirt. Doctor Brian Johnston testified that he observed “a woven material” on the victim’s face which he described as “a very thin mesh-type network of impressions”. Mr. Yegin’s cell phone activity on the night of August 20^th would also tend to confirm his presence at the scene. The finding of Mr. El-Hajj Hassan’s vehicle on Waverly Street a few days after August 20 could also be regarded as confirmatory of Mark Yegin’s evidence.

[101] Trial counsel for the appellant did not object to these instructions before or after their delivery.

The Arguments on Appeal

[102] For the appellant, Ms. Henein contends that among the essential components of a proper Vetrovec instruction is an enumeration or description of the reasons why the evidence of the witness requires special scrutiny. As far as Mark Yegin was concerned, the instruction, she says, failed to indicate the principal reasons for enhanced scrutiny:

i. Yegin’s motive to lie;

ii. Yegin was charged with the offence, thus had the information necessary to provide an account that blamed others for committing the offence and absolved himself; and

iii. Yegin sought and obtained a withdrawal of the charge against him by cooperating with the police and leading them to the body.

[103] Ms. Henein advances a similar argument in connection with the caution for Ebrekdjian. The instructions, she contends, failed to point out that Ebrekdjian:

i. had a close connection to all the parties;

ii. had himself been charged with the murder of the deceased;

iii. had a financial motive to kill Hassan(to keep the money Hassan fronted for drug purchases that Ebrekdjian had not delivered); and

iv. admitted a motive of self-protection.

[104] Ms. Henein says that the trial judge also erred in the items he listed as potential confirmatory evidence in connection with the testimony of Mark Yegin. The live issues in the case were the presence of the appellant at the scene of the killing and the nature of his participation, if any, in the killing. There was no dispute that Yegin drove Hassan there, remained, and participated in the killing. To be confirmatory of Yegin’s testimony, the evidence had to show that Yegin was telling the truth about the appellant’s participation. But the list of evidence the judge provided did no more than confirm Yegin’s presence at the scene about which there was no dispute. Trial counsel for the appellant objected to the trial judge’s illustrations of confirmatory evidence, but the trial judge refused to correct it.

[105] Ms. Bartlett-Hughes for the respondent acknowledges that a trial judge is required to explain to the jury the reasons underlying a Vetrovec caution. But, she submits, the explanation need not be exhaustive or appear in its entirety in a single passage or paragraph in the charge. In the context of the case as a whole, where a significant portion of the addresses of counsel were devoted to the weaknesses in Yegin’s evidence, and the factors omitted were obvious, the jury would have well understood why they should be extremely careful about acting on Yegin’s account of events. Ms. Bartlett-Hughes notes that the motive to lie advanced on appeal was not part of the defence position at trial.

[106] Ms. Bartlett-Hughes accepts that, to be confirmatory of a Vetrovec witness, evidence must be independent of that witness and relate to a material issue in his or her evidence. The evidence need not implicate an accused, however. Evidence that confirmed Yegin’s presence at the scene can be confirmatory. No minimum threshold is imposed for how much of a Vetrovec witness’s evidence requires confirmation.

The Governing Principles

[107] Among the elements that should guide trial judges in composing Vetrovec instructions about potentially unsavoury witnesses is an explanation of why the witness’s evidence is subject to special scrutiny: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 37; R. v. Hurley, 2010 SCC 18, [2010] 1 S.C.R. 637, at para. 12. An exhaustive explanation of how a particular characteristic might enable a witness to upset the fact-finding process is not required: R. v. Smith, 2009 SCC 5, [2009] 1 S.C.R. 146, at para. 14. Sometimes, when a witness is an accomplice, it may be useful for a trial judge to explain why such a witness would be able to concoct a particularly compelling story that implicates an accused: Smith, at para. 15.

[108] Vetrovec eschewed formulaic instructions in favour of a judicial discretion to compose a wording responsive to the needs and circumstances of the case: Khela, at para. 38; Smith, at para. 16. A failure to include a specific component in a Vetrovec instruction may not prove fatal where the charge, read as a whole, otherwise serves the purposes of a Vetrovec warning: Khela, at para. 44. Sometimes, as well, the reasons underlying the need for caution are self-evident and an elaborate explanation of them is unnecessary: R. v. Linklater, 2009 ONCA 172, 246 O.A.C. 303, at para. 10.

[109] A Vetrovec instruction should also make clear to the jury the type of evidence capable of offering support to the impugned witness. A trial judge is expected to provide illustrations of potentially confirmatory evidence, not simply to turn the jury loose to rummage about for whatever it considers confirmatory of the witness’s evidence: Khela, at para. 46.

[110] The principal characteristics of confirmatory evidence are independence and materiality. The evidence must be independent of the Vetrovec witness, that is to say, not tainted by connection to that witness: Khela, at para. 39. To be material, confirmatory evidence need not implicate the accused in the commission of the offence: Khela, at paras. 40-41. To be material, what the confirmatory evidence must do in the context of the case as a whole is to give comfort to the jury that the witness can be trusted in his or her assertion that the accused committed the offence: Khela, at para. 42; R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at para. 15. Where the only issue in dispute is whether the accused committed the offence, the trier of fact must be comforted that the Vetrovec witness is telling the truth in that regard before convicting on the strength of the Vetrovec witness’s evidence.

The Principles Applied

[111] Despite some deficiencies in the Vetrovec instructions, I would not accede to this ground of appeal.

[112] I take first the complaint that the trial judge erred in failing to apprise the jury of all the reasons to approach the preliminary inquiry evidence of Yegin and the testimony of Ebrekdjian with caution. I would reject this claim of error for three reasons.

[113] First, it is debatable whether the authorities go so far as to say that failure to point out every reason why jurors should approach a witness’s evidence with great care and caution amounts to legal error. To some at least, such a requirement would be inconsistent with the degree of discretion assigned to a trial judge in the composition of a Vetrovec caution, a substitution of form for substance. It can almost always be argued the trial judge could have said more on a subject than what she or he did say. But that is beside the point. The issue is really whether what the trial judge said was sufficient, in the context of the charge as a whole, to equip the jurors to understand the reasons why they should be very cautious about grounding a conviction on this evidence. And in this case, the instructions fulfilled their purpose.

[114] Second, the omissions were matters that were at once self-evident, and treated in depth in the closing addresses on both sides and the trial judge’s repetition of the position of the defence in his jury instructions.

[115] Third, trial counsel for the appellant did not object to the charge on this ground despite ample opportunity to do so both before and after the charge was given.

[116] In connection with the submission that the illustrations of potentially confirmatory evidence were wrong because they lacked the essential quality of materiality, I would reject this assertion of error.

[117] To be confirmatory of the testimony of a Vetrovec witness, evidence need not implicate the accused in the commission of the offence charged: Khela, at para. 42; Smith, at para. 12. Yegin’s evidence was that he was present and witnessed the killing of Hassan. Evidence that confirmed his attendance there contemporaneous with the killing, his ability to locate the burial site, unhesitatingly and at night, and the finding of the deceased’s car as he described was some evidence that could give comfort to the jury that his assertion that the appellant was the killer could be trusted. Nothing more was required of the evidence.

Ground 3: Failure to Relate the Evidence to the Issues

[118] The third ground of appeal also relates to an alleged deficiency in the charge to the jury. The complaint is familiar: an assertion that the charge was not compliant with the rule of venerable lineage that, except in cases in which it would be needless to do so, a trial judge is bound to review for the jury the substantial parts of the evidence and to relate that evidence to the issues that require decision so that the jury appreciates the value and effect of that evidence.

[119] Context is important here and requires some further background.

The Pre-Charge Conference

[120] The trial judge provided counsel with a draft of the charge he proposed to deliver and invited their submissions. He tried very hard to develop a final product that was at once legally correct and reflected the positions of both parties. The pre-charge conference was completed before counsel addressed the jury.

[121] At the pre-charge conference or shortly thereafter, counsel provided the trial judge with a statement of their positions. Included in these statements, which the trial judge incorporated verbatim into his charge, were some references to the evidence upon which counsel relied in support of their positions.

The Positions of the Parties at Trial

[122] The Crown contended that the appellant was guilty of first degree murder.

[123] The position of the Crown was that Hassan became disenchanted with the appellant as his drug supplier because he thought the appellant was skimming money from the amounts he was to provide to Ebrekdjian for drugs. Hassan decided to cut the appellant out of the supply chain, a manoeuvre that would save Hassan money but cause the appellant a significant financial loss. The appellant found out about the plan, was angered by it, and took steps to plot the murder of the deceased.

[124] The plan that the appellant and others developed was to lure Hassan to a remote location on the pretense that they were going to a meeting with Sasquatch (Paul Porter) to discuss something about the drug business in Cornwall. Yegin, either a willing and knowledgeable participant or an unwilling dupe, was dispatched to carry out the plan. On August 19, 2004 Hassan had paid $170,000 up front to Ebrekdjian for drugs. Axe Sleiman was sent to recover the money for the appellant.

[125] During the afternoon of August 20, 2004, the appellant and Esrabian pre-dug a grave in the area to which Hassan was to be lured later that day. Yegin delivered Hassan to the remote location where Esrabian and the appellant waited. They were armed and had tools with which they could hit Hassan and bury his body. Hassan was shot twice, beaten, and buried in a shallow grave.

[126] The position of the appellant at trial was that he was not part of any plan to kill Hassan and was not present when Hassan was shot, beaten, and killed. The case for the Crown depended on the appellant’s presence at the scene of the killing. The only evidence that put him there was the preliminary inquiry evidence of a thoroughly disreputable and unreliable witness: Yegin, a person who sought to purchase immunity for himself by falsely accusing others.

[127] The appellant did not have any motive to kill the deceased. Their dispute had been settled. The appellant was to receive his commission as the intermediary between Hassan and Ebrekdjian. The Crown had failed to prove his participation in a plan to kill Hassan, and further had failed to prove his presence at the scene and participation in the killing. The appellant, who did not testify or call evidence, was entitled to a finding of not guilty.

The Charge to the Jury

[128] The trial judge provided jurors with a written copy of his charge. After explaining the governing legal principles, both those of general application to all criminal trials and those of specific application to the appellant’s case because of the evidence adduced at trial, the trial judge turned to the essential elements the Crown was required to prove to establish the appellant’s guilt. The charge proceeded along familiar lines with the essential elements converted to questions and accompanied by relevant legal instructions.

[129] The trial judge instructed the jury on two modes of participation, both of which required the appellant’s physical presence at the place and time of killing:

• principal
• aider or abettor

In his discussion of the various essential elements and what was required to prove them, the trial judge did not review the evidence adduced at trial that was relevant for the jury to consider in deciding each issue, apart from a brief reference in connection with whether the murder was planned and deliberate.

[130] Neither counsel objected to the charge to the jury on the ground that the trial judge had failed to review the substantial features of the evidence and to relate them to the issues that the jury was to decide.

The Evidence Notes

[131] The addresses of counsel finished on a Friday afternoon. After a brief late afternoon recess, the trial judge provided the jurors with their “homework” for the weekend: 87 typewritten pages of the trial judge’s notes of the evidence of some of the witnesses who had testified at trial. The notes did not include any summary of Mark Yegin’s evidence from the preliminary inquiry, the testimony of the lead investigator, or the opinion evidence given by any expert who testified at trial.

[132] The trial judge explained to the jury that the notes were his notes of the evidence, intended to assist their recollection of the evidence, but subject to their memory of it. The notes, he cautioned the jury, were “strictly personal and confidential” and not to be dispersed, copied, shared, or discussed with anyone else. The judge told the jury to bring the evidence notes with them when they returned to listen to the charge to the jury the following Monday.

The Arguments on Appeal

[133] For the appellant, Ms. Henein advances two related complaints about the adequacy of the trial judge’s charge.

[134] First of all, Ms. Henein says that the trial judge failed to review the substantial parts of the evidence adduced at trial and failed to relate that evidence to the issues that the jury was required to decide, thus leaving the jury without an adequate appreciation of the value and effect of that evidence.

[135] Second, and more specifically, Ms. Henein contends that the trial judge failed to review and relate the substantial parts of the evidence to the appellant’s liability for murder.

[136] Ms. Henein acknowledges that the trial judge was under no obligation to exhaustively review all the evidence admitted at trial in his final instructions. That said, she submits, the trial judge was required but failed to review the substantial parts of the evidence and to relate it to the position of the defence so that the jury would appreciate its value and effect. There was no review of the evidence or relation of it to the critical issues of the appellant’s presence at the time and place of the killing and his state of mind, in particular, his knowledge and foresight, a critical component of his potential criminal liability. The effect of the charge was to direct the jury that his presence constituted proof of his liability for second degree murder.

[137] For the respondent, Ms. Bartlett-Hughes reminds us that the assessment of the adequacy of the charge to the jury requires a consideration of the context in which the final instructions were given. Here, she says, the trial judge provided counsel with a copy of his proposed final instructions. Counsel on both sides reviewed the proposed instructions at length during the pre-charge conference. Each was aware that the instructions contained no review of the evidence adduced at trial and no relation of that evidence to the issues the jury was required to decide. Trial counsel for the appellant did not object to the substance of the instructions and raised no concern about the judicial notes being provided to the jurors. The appellant cannot now advance a claim of prejudicial error having failed to record any objection at trial.

[138] Ms. Bartlett-Hughes submits that the trial judge’s failure to include in his evidence notes or otherwise to review the evidence of the pathologist who performed the post-mortem examination on Hassan and the lead police investigator caused the appellant no prejudice. The jury had a copy of the post-mortem report containing the relevant findings and the lead investigator’s evidence was largely investigative background and provided context for the various photographic exhibits.

[139] Ms. Bartlett-Hughes contends that the instructions that linked presence to a finding that the appellant committed murder do not reflect misdirection in the circumstances of this case. The evidence about the appellant’s presence was reviewed in the recharge and, for all practical purposes, the appellant’s presence at the secluded spot when and where the killing occurred was incompatible with innocence.

The Governing Principles

[140] It is beyond controversy that among the obligations imposed upon a trial judge in instructing a jury in a criminal case, except in cases where it would be needless to do so, is the duty to review the substantial parts of the evidence and to give the jury the position of the defence, so that the jury may appreciate the value and effect of the evidence, and how the law is to be applied to the facts as the jury finds them to be: Azoulay v. The Queen, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495, at pp. 497-498.

[141] Frequently, a judge satisfies this obligation to review substantial parts of the evidence and to relate that evidence to the issues the jury must decide by reviewing the evidence contemporaneously with legal instructions about what the Crown must prove to establish each essential element of the offence and any defence, justification, or excuse that may be applicable to that element: R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.), at para. 29; R. v. Cudjoe, 2009 ONCA 543, 68 C.R. (6th) 86, at paras. 172-173. When this approach is followed, the jury understands, to put it in the vernacular, “what goes with what”. In other words, the instructions couple what must be proven (an essential element of an offence) with what is relevant to prove (or raise a reasonable doubt about) it (the evidence): Cudjoe, at para. 175.

[142] The obligation to review the substantial parts of the evidence and relate it to the issues that ripen for decision by the jury imposes no duty upon the trial judge to review all the evidence: Azoulay, at p. 498; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 55-56. The role of the trial judge is to decant and simplify, not to regurgitate and complicate: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 13; Daley, at para. 56. A trial judge is vested with a considerable discretion in determining the extent to which the evidence adduced at trial is reviewed for the jury in final instructions: R. v. Royz, 2009 SCC 13, [2009] 1 S.C.R. 423, at para. 3. In the end, the test is one of fairness. Provided the critical features of the evidence are put to the jury in a way that will permit the jury to truly appreciate the issues and the defence presented, a trial judge will have met the standard required: Daley, at para. 57.

[143] A charge to the jury in a criminal case does not take place in isolation. It occurs in the context of the trial as a whole. Appellate review of a trial judge’s charge encompasses the addresses of counsel, as the addresses may fill some gaps in the charge: Daley, at para. 58; Royz, at para. 3. That said, the addresses of counsel are not and cannot be a proxy for the trial judge’s obligations under Azoulay and its progeny.

[144] Jury instructions are tested against their ability to fulfill the purposes for which they are given, not by reference to whether any particular approach or formula has been used. Provided the jury is left with a sufficient understanding of the evidence as it relates to the relevant issues and the positions of the parties on those issues, the charge passes muster: Jacquard, at para. 14.

[145] Serial reviews of the evidence adduced at trial are not likely to be of assistance to jurors: R. v. MacKay, 2005 SCC 75, [2005] 3 S.C.R. 607, at para. 2; R. v. Charles, 2011 ONCA 228, 270 C.C.C. (3d) 308, at para. 19.

The Principles Applied

[146] I would give effect to this ground of appeal. In my respectful view, the trial judge’s references to the evidence were not sufficient to the context of the case and the entirety of the charge to alert the jury to the specific parts of the evidence that were significant to the issues the jury had to decide and to the positions counsel advanced on those issues.

[147] Reduced to its simplest terms, this case required the jury to decide two issues. Was the appellant present at the time and place where Hassan was killed? If the appellant were present at the material time, to what extent was the appellant liable for the unlawful killing of the deceased?

[148] In his final instructions, the trial judge posed four questions for the jury to consider:

i. Did Fadi Saleh cause Hussein El-Hajj Hassan’s death?

ii. Did Fadi Saleh cause Hussein El-Hajj Hassan’s death unlawfully?

iii. Did Fadi Saleh have the state of mind required for murder?

iv. Was the murder of Hussein El-Hajj Hassan both planned and deliberate?

[149] To answer each question, which reflected an essential element of the offence charged, the jury required instructions about the legal principles that governed their decision. They received those instructions. But the trial judge had a further obligation to the jury in connection with each question. And that was to review the evidence relevant to the issue framed by the question and to relate that evidence to the issue and the positions taken by the parties on the question and issue. The trial judge did not provide these instructions. In failing to do so, he fell into error.

[150] The audiotapes of Yegin’s evidence at the preliminary inquiry were filed as exhibits, thus available for listening in the jury room during deliberations. The transcripts of Yegin’s evidence at the preliminary inquiry were also filed, thus available for reading in the jury room. Likewise, the trial judge’s notes. But the jury was entitled to more. It could not simply handed the evidence in bulk and left to decide, untutored, which parts of it were relevant to the various questions posed for their response. Recall the direction in Jacquard: the judge’s role is to decant and to simplify.

[151] Something should be said about the procedure followed here of providing the jury with a written copy of the trial judge’s evidence notes on the testimony of some, but not all, of the witnesses.

[152] A trial judge’s obligation is to review the substantial parts of the evidence and relate it to the issues and the positions of the parties on those issues, so that the jury appreciates the value and effect of the evidence is an essential component in a jury charge. Like other essential components, it may be accomplished in various ways. Most trial judges satisfy this requirement by reviewing the evidence in the context of the various issues, and by indicating which parts of the evidence may support the positions advanced by each party on the issue. But that is not to say that other methods may not be suitable in other cases. In the end, what is done must leave the jury with an adequate understanding of the issues in play, the legal principles governing the offences charged, the basis of liability advanced and the evidence adduced in proof, and the salient features of the evidence the jury should consider in resolving those issues: R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, at p. 163.

[153] It has become common practice in this province for trial judges to provide jurors with written versions of final instructions delivered orally. Sometimes, but not always, the written versions supplied to jurors include the judge’s evidentiary references intended to comply with the instructions of Azoulay. There is nothing wrong and arguably much right about providing the entire charge as given orally, including evidentiary references, in the written version of the charge supplied to the jury.

[154] The error in this case is not simply one of form, but rather one of substance. In much the same way as an oral regurgitation of the evidence adduced at trial in bulk fails to meet the requirement of Azoulay, much less adhere to the “decant and simplify” mandate of Jacquard, it is no less so when the manner of delivery is in writing. An undifferentiated written summary, coupled with transcripts of evidence given elsewhere, devoid of any attempt to separate the wheat from the chaff and to relate the essential features of the evidence to the issues on which they bear, falls short of what is required.

Ground 4: The Jury’s Question

[155] On the second full day of their deliberations, the jury asked a question. It was the only question they asked prior to delivering their verdict.

[156] The trial judge’s response to the jury’s question is the final ground of appeal.

The Question

[157] The question asked by the jury was this:

A question that we have on a point of law is whether an individual has to be “present” in order to be found guilty of first or second-degree murder. Your notes indicate that an individual would be found guilty if the four conditions of first-degree murder are met, pages 43-44.

Each of these conditions are expanded on in subsequent text using “if he was present…”. The conditions are not expanded further in the event that he was not present, for example, first paragraph, page 50; second paragraph, page 53.

[158] The trial judge heard the submissions of counsel about the answer he should provide to the jury’s question. He recalled the jury in the late afternoon, told them that they were not to deliberate further that day, and advised them that he would answer their question the following morning. The jury retired for the evening.

The Answer

[159] The following morning, without re-reading the jury’s question, the trial judge told the jury that he had prepared an addendum to his charge. He read the addendum and provided a written copy of it for the jury. The trial judge began his response to the jury in this way:

Members of the Jury, an individual could be found guilty of murder and not be present at the scene of the murder. For example, an individual may order that a murder be committed and that others carry out the crime. In such a case, the person who gives the order is a party to the murder and would be as guilty as those who actually committed it.

In this case however, both the Prosecution and the Defence have proceeded on the basis that Mr. Saleh was present at the scene of the murder. According to the Prosecution Mr. Saleh was present at the scene either as a shooter or one of the shooters, or as an aider or abettor of the shooter or shooters. In essence, the Crown asserts that Mr. Saleh was an active participant in the murder of Mr. Hassan at the very spot where he was murdered.

[160] For the first time, the trial judge reviewed some of the evidence, including the preliminary inquiry testimony of Mark Yegin and evidence of the appellant’s alleged motive, that tended to show that the appellant was present when and where Hassan was killed.

[161] The trial judge concluded his response to the jury question with these instructions:

If you are not satisfied beyond a reasonable doubt that Mr. Fadi Saleh was present at the scene of the crime as a principal offender or as an aider or abettor to the murder of Mr. Hassan, you must find him not guilty. If you are satisfied beyond a reasonable doubt Fadi Saleh was present at the scene of the crime as a principal offender or as an aider or abettor to the murder of Mr. Hassan, you must find Mr. Saleh guilty of second-degree murder. You would then go on to consider whether the murder was both planned and deliberate in accordance with my written instructions provided to you.

[162] Trial counsel for the appellant objected to the judge’s response. He submitted that the answer failed to advise the jury that the defence position was that the appellant was not present when Hassan was killed. The defence did not proceed on the basis that the appellant was present as the trial judge had erroneously told the jury. Defence counsel also took issue with the trial judge’s review of evidence that tended to show the appellant’s presence at the time and place of the killing. Counsel submitted that the review was incomplete and failed to point out the important evidence of the pathologist that contradicted Yegin’s claim that Hassan had been shot in the head.

[163] The trial judge did not recall the jury for further instructions.

The Arguments on Appeal

[164] For the appellant, Ms. Henein accepts that the trial judge correctly instructed the jury that, as a matter of law, a person may be convicted of murder without being present at the time and place Hassan was killed. Further, Ms. Henein concedes, the trial judge properly pointed out that the entire trial had been conducted on the basis that the appellant’s liability depended on proof that he was present at the time and place of the killing.

[165] Ms. Henein submits, however, that the trial judge’s answer was fatally flawed for several reasons.

[166] First, Ms. Henein says, the trial judge erred in telling the jury that the defence proceeded on the basis that the appellant was present. The defence position was that the appellant was not present, or at least not proven beyond a reasonable doubt to have been present because of the significant frailties in Yegin’s evidence.

[167] Second, Ms. Henein continues, the trial judge was wrong in failing to instruct the jury, in express terms, that they could not find the appellant guilty of any offence unless they were first satisfied beyond a reasonable doubt that he was present at the time and place Hassan was killed. The jury was never instructed that they could not find the appellant guilty of any offence if they found or had a reasonable doubt that he was not present when and where Hassan was killed.

[168] Third, Ms. Henein says, the evidentiary review included in the trial judge’s answer was unfair and unbalanced. The items of evidence selected omitted any reference to any evidence that tended to negate the testimony that pointed to the appellant’s presence. If the trial judge decided that an evidentiary review was appropriate, even though the jury question did not require it, the review had to be, but unfortunately was not, balanced.

[169] For the respondent, Ms. Bartlett-Hughes submits that nothing the trial judge said or failed to say in his response to the jury question left or could have left the impression that the appellant could be convicted of any offence even if the jury were not satisfied beyond a reasonable doubt that he was present when and where Hassan was killed.

[170] Ms. Bartlett-Hughes says that the trial judge expressly instructed the jury that if they were not satisfied beyond a reasonable doubt that the appellant was present when and where Hassan was killed, he was to be found not guilty. Admittedly, at an early point in his answer, the trial judge misspoke when he said that the defence had proceeded on the basis that the appellant was present. But, Ms. Bartlett-Hughes continues, the balance of the instruction, thus the instruction as a whole, made it clear that the appellant’s presence was an issue for the jury to decide.

[171] Ms. Bartlett-Hughes disagrees with the characterization of the evidentiary review as unbalanced or unfair. The review was a fair reflection of the evidence on the issue. After all, the only evidence on the issue was adduced by the Crown. The appellant did not testify nor call any witnesses to say that he was not where the Crown’s proof put him when and where Hassan was killed.

The Governing Principles

[172] The principles that govern the manner in which trial judges are to respond to jury questions are well-established and not in need of tedious repetition. Three brief points are worthy of reminder.

[173] First, jury questions require a clear, correct, and comprehensive response in a timely way: R. v. S.(W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at para. 13; R. v. Desveaux (1986), 1986 CanLII 153 (ON CA), 26 C.C.C. (3d) 88 (Ont. C.A.), at p. 93. This is particularly important when there has been a lengthy delay between the completion of the charge and the response to the question: S.(W.D.), at paras. 31 and 34; R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 759-760.

[174] Second, counsel must be afforded an opportunity to make submissions about the nature and content of the response: S.(W.D.), at para. 34.

[175] Third, if an error is made in a response to a jury question, then at least as a general rule, the correctness of the original charge cannot be summoned to excuse the later error on the precise issue on which the jury has sought clarification: S.(W.D.), at para. 19; W.(D.), at para. 36.

The Principles Applied

[176] I would give effect to this ground of appeal. As I will explain, the response provided was infected by both procedural and substantive error.

[177] When advised of the jury’s question, the trial judge reconvened court in the absence of the jury. He invited submissions from counsel about an appropriate response to the question. He then advised the jury that he was suspending their deliberations until the following morning when he would answer their question. Before dismissing the jury, the trial judge had not settled on his response to the question or advised counsel about what he proposed to say.

[178] When court resumed the following morning, the trial judge had in hand his response to the jury’s question. He made it clear to counsel that he would not receive any further submissions about his response. The judge recalled the jury, read aloud his response without first repeating the question, provided a written version of his answer to the jury, and directed them to retire to continue their deliberations.

[179] In my view, the trial judge should have distributed the proposed response to counsel and received their submissions on its adequacy. The jury had already been kept waiting for a response as a result of the trial judge’s decision to delay his response until the following morning. The question could easily have been answered after the dinner recess the previous evening with the benefit of further submissions by counsel. It was pointless to rush the response having already delayed it until the following morning.

[180] Of greater significance, however, are the substantive flaws in the response. The judge misstated the defence position, although he later made it clear that whether the appellant was present was an issue the jury had to decide. That said, the response treated presence as proof of murder as a matter of law. By this instruction, he converted an issue of fact that was to be resolved by the jury into a legal instruction, thus rendering essential findings of fact on that issue unnecessary.

[181] The trial judge’s response to the jury question was also over-inclusive. What the jury sought was an answer to a legal question that could be paraphrased as:

Does a person have to be present to be guilty of first or second degree murder?

[182] The short answer to that question was:

As a matter of law, in some circumstances, none of which are present here, a person may be convicted of first or second degree murder even though she or he is not present when and where the killing occurred. In this case, however, you must be satisfied beyond a reasonable doubt that Fadi Saleh was present at the time and place the deceased was killed in order to find him guilty of either first or second degree murder as a principal or as an aider or abettor in accordance with the instructions I have given to you.

[183] The jury question did not expressly or by necessary implication invite a review of the evidence that was relevant to the issue of the appellant’s presence. Once the trial judge decided to engage in such a review, however, the references had to be fair and balanced in light of the controversy on the issue. They were not, and thus reflect error.

CONCLUSION

[184] In combination, the errors I have identified and discussed render the jury’s verdict unsustainable. I would allow the appeal, set aside the conviction, and order a new trial on the indictment for first degree murder.

Released: December 10, 2013 (“DW”)

“David Watt J.A.”

“I agree. M. Tulloch J.A.”

“I agree. P. Lauwers J.A.”

[^1]: Sections 715(2.1) and (3) also permit evidence to be admitted where the accused has been permitted to be absent by order of the presiding judge or has absconded.