COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boyce, 2014 ONCA 150

DATE: 20120227

DOCKET: C54170

Rosenberg, Rouleau and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alvin Boyce

Appellant

Richard Posner and Gabriel Gross-Stein, for the appellant

Robert Gattrell, for the respondent

Heard: October 7, 2013

On appeal from the conviction entered on February 26, 2011 by Justice Nancy Mossip of the Superior Court of Justice, sitting with a jury.

Rosenberg J.A.:

[1] The appellant appeals from his conviction for second degree murder by a court composed of Mossip J. and a jury. The only factual issue in the case was the identity of the killer. On the evidence, the killer had to be either the appellant or Tristan Francis, an important Crown witness.

[2] The grounds of appeal concern the treatment of the evidence of another Crown witness, Tristan Barrett. Barrett told the police that he saw the appellant in possession of a firearm moments after the shooting and that the appellant asked him to hide it. By the time of the trial, Barrett had recanted. The appellant submits that the trial judge erred in permitting the Crown to cross-examine Barrett on his police statement. He also submits that the Crown jury address concerning the use of Barrett’s testimony was improper. The appellant also submits that the trial judge did not give a proper Vetrovec instruction concerning Francis’ evidence.

[3] For the following reasons, I would dismiss the appeal.

THE FACTS

[4] The deceased was a 16-year-old boy. A few days before the murder, drug dealers, including one Jovel Stewart, who were associated with Francis had attempted to extort money from Michael Bamford, a friend of the deceased. The defence alleged that the subsequent killing was related to Bamford’s drug dealing and the earlier extortion. There was conflicting evidence as to whether Francis had a gun either during this encounter or at some earlier time.

[5] On the evening of August 8, 2008, Francis was again with the drug dealers, this time near a community centre. The three were waiting with Francis’ friend, Natasha Norman, and were then going to attend a party with some others. At some point, Bamford drove up. Norman testified that Francis was acting aggressively towards Bamford. Francis denied this. After Bamford drove off, Francis and the others walked closer to the community centre. Francis remained near a poorly lit grassy area because he was in violation of a court-ordered curfew.

[6] Some time that evening Tristan Barrett called Francis to arrange to buy some marijuana. He and the appellant then walked over to the community centre and approached Francis and his companions. Barrett bought some marijuana and began smoking it while the appellant spoke to Francis and one of his companions. Norman testified that during this time she saw Francis and his companions handling an old sliver cowboy-style gun. The men were talking about getting bullets for the gun. Some weeks later this gun, an imitation revolver, was seized from one of Francis’ companions. There was conflicting evidence as to whether the men believed the gun was real.

[7] At some point Norman and one of the men left to buy cigarettes and the deceased arrived at the scene. The deceased said something about someone “talking bad” and mentioned Bamford’s name. Francis then led the deceased behind a wall. The appellant went with them. Francis testified that within moments and for no apparent reason, the appellant pulled out a black handgun and shot the deceased in his chest.

[8] After the shooting, the deceased came around the wall and collapsed. Barrett testified that the appellant appeared to be in shock. He then looked over at Barrett and said they should leave. The two went to Barrett’s home where Barrett called Francis and asked what had happened. According to Barrett, Francis said he would call back from a safe telephone, but he never called back. Francis testified that he received a call from Barrett’s telephone. Someone, not Barrett or the appellant, asked him what happened. Francis said he did not know. The caller said he was testing him to see what he would say. The appellant then came on to the telephone and said: “What happened with your brethren there, don’t worry about nothing, you’re good.”

[9] The day after the shooting, Francis asked Norman to provide him with a false alibi. Norman testified that Francis stayed with her for several days after the shooting. He gave conflicting versions of the shooting until he identified the appellant as the shooter.

[10] Barrett testified that he had not seen the appellant with a gun the night of the murder. The trial judge allowed Crown counsel to cross-examine Barrett pursuant to s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5. Crown counsel read portions of his statement to him, including the following:

• Barrett saw the appellant with a black semi-automatic 9 millimetre pistol that evening; it looked like a Glock;

• On the way to Barrett’s home, the appellant asked Barrett to take the gun, but he refused;

• When the appellant showed Barrett the gun, it was wrapped up in the appellant’s black jacket;

• Barrett had seen the gun for the first time a couple of nights before the shooting.

[11] Barrett did not adopt his statement. He testified that it was false and had been coerced out of him by the police. Barrett was detained by the police about two months after the killing. He testified that when he reported to his probation officer, he was arrested for being an accessory after the fact to the murder. Originally, he told the police that the appellant did not have a gun that night. The police then stopped the video of the statement for a brief cigarette break outside. According to Barrett, at this time the interviewing officers threatened that if he did not say that the appellant had a gun, he would be charged and held in custody and told him in general terms what he had to say to be released from custody. When they returned to the interview room, Barrett made the statements implicating the appellant.

[12] At the appellant’s preliminary inquiry, Barrett testified that the statement to the police was false. He was then arrested for perjury. He testified at the trial that he believed the prosecution would continue with the perjury charge if he did not say that the appellant had the gun. However, he continued to insist that the statement was false.

[13] The prosecution called Detective Gormley. He testified that he arrested Barrett for failing to comply with his probation, not for being an accessory after the fact to the murder. He arrested him because he believed Barrett was an important witness. He denied that either he or his partner threatened Barrett, made improper inducements or made any improper suggestions to him during the cigarette break.

[14] Francis was charged with the murder about a month after the shooting. Francis testified at the appellant’s preliminary inquiry and implicated the appellant as the shooter. All the charges against him were then dropped except for a charge of obstructing police, to which he pleaded guilty.

THE ISSUES

[15] The appellant makes a number of submissions in relation to the cross-examination of Barrett on his prior inconsistent statement:

(i) Crown counsel should not have been permitted to cross-examine Barrett pursuant to s. 9(2) of the Canada Evidence Act;

(ii) Crown counsel improperly invited the jury to use portions of the statement that were not adopted by Barrett for their truth; and

(iii) The charge to the jury did not adequately warn the jury as to the limited use of the statement especially when the trial judge referred to the position of the Crown.

[16] The appellant also submits that the Vetrovec instruction as to the danger of relying upon the evidence of Francis was deficient in several ways, notably:

(i) The trial judge failed to instruct the jury as to the importance of the independence of possible confirmatory evidence; and

(ii) The examples given by the trial judge as to possible confirmatory evidence were erroneous, given the issues in the case and especially the likelihood that Francis tailored his evidence to conform with the evidence of the other persons at the scene of the killing.

ANALYSIS

The Canada Evidence Act, s. 9(2) Issues

[17] At trial, the appellant argued that the Crown should not be permitted to cross-examine Barrett on his statement to the police because of the circumstances under which the statement had been obtained and because the Crown knew that Barrett would not adopt the parts of the statement incriminating the appellant. In her rulings, the trial judge held that the Crown was entitled to call Barrett because he had relevant evidence to give apart from the evidence about whether the appellant had a gun. The trial judge also held that this was not a case like R. v. Soobrian (1994), 1994 CanLII 8739 (ON CA), 21 O.R. (3d) 603 (C.A.). Even though Barrett had not adopted his statement at the preliminary inquiry, the Crown could in good faith believe that Barrett might adopt some of the relevant prior statements. The trial judge applied this court’s decisions in R. v. Mariani, 2007 ONCA 329, 220 C.C.C. (3d) 74 and R. v. Dooley, 2009 ONCA 910, 249 C.C.C. (3d) 449.

[18] The trial judge permitted the Crown to cross-examine Barrett on the statement pursuant to s. 9(2) of the Canada Evidence Act. She refused, however, to admit the statement for its truth in accordance with R. v. B. (K.G.), [1993] S.C.R. 740, even though there was some evidence to confirm the truth of the statement such as the finding of a 9 mm. casing at the murder scene; Barrett confirmed that the police did not mention any calibre of gun. Barrett’s other evidence about the events of the night was also consistent with other evidence. However, Barrett was not under oath when he gave the statement and the trial judge found that there was no suitable substitute for an oath. Further, the trial judge was not satisfied that the statement was voluntary. The police offered him a significant inducement for the statement, there were veiled threats made to him, the police told him that he was a liar and no one believed him because he was not implicating the appellant. The trial judge was particularly concerned about the arrest, which she characterized as a sham. The police arrested Barrett without any real intention of proceeding with the breach of probation charge, for the sole purpose of getting a statement from him on the murder charge. It was an improper use of the arrest power. The police deliberately did not caution Barrett, did not offer to let him call a lawyer, and did not tell him the real jeopardy he was under at the time. Because of her concerns about the manner in which the statement was obtained, the trial judge limited the cross-examination on the statement before the jury. Crown counsel was only permitted to ask Barrett whether he had made a particular part of the statement and whether it was true. If he denied the statement was true no further cross-examination was permitted. The trial judge gave the jury a mid-trial instruction as to the limited use of the portions of the statement that were not adopted.

[19] The appellant submits that the trial judge erred in permitting Crown counsel to cross-examine Barrett pursuant to s. 9(2) of the Canada Evidence Act. The appellant concedes that the statement did have some value in impeaching Barrett’s credibility as to his version of the events after the killing. Nevertheless, the trial judge should not have permitted the impugned cross-examination about the gun. The appellant submits that there was no basis for believing that Barrett would adopt the portions of the statement concerning the appellant having the handgun. He had denied that this portion of the statement was true at the preliminary inquiry and on the s. 9(2) voir dire.

[20] In R. v. Carpenter (No. 2) (1982), 1982 CanLII 3308 (ON CA), 1 C.C.C. (3d) 149, at p. 155, this court held that cross-examination under s. 9(2) should be permitted if it would serve the ends of justice. In my view, the trial judge did not err in the exercise of her discretion in permitting the very limited cross-examination. Barrett was a necessary witness at the trial. He had been with the appellant earlier in the evening, was in the area of the community centre when the deceased was shot and then left the area with the appellant. The Crown thus had a legitimate interest in calling Barrett apart from what he said to the police about the gun. In light of Francis’ evidence that the appellant shot the deceased, whether Barrett had seen the appellant immediately thereafter with the gun and what the appellant said after the killing were all valid and logical areas to explore. When Barrett denied that the appellant had the gun, it was open to the Crown to attempt to impeach this part of Barrett’s evidence. If Barrett persisted in claiming the appellant did not have a gun, contrary to his earlier statement, the Crown was entitled to at least attempt to neutralize this evidence. Since Barrett refused to adopt the earlier statement as true, the cross-examination did not prove that the appellant had a gun but at least was capable of neutralizing the inference from Barrett’s testimony that the appellant did not have a gun.

[21] In considering the ends of justice, the trial judge took into account her concern about the manner in which the statement was obtained and thus severely limited cross-examination on the statement. As the trial judge said in her preliminary oral ruling (she later gave an expanded written ruling):

The Crown will not be permitted to further cross-examine on the inconsistency between that statement and Mr. Barrett’s testimony at trial. In this way the jury will be able to use the prior inconsistent statement solely for the purpose of assessing Mr. Barrett’s testimony at this trial, which is my attempt to strike a balance between the prejudice to Mr. Boyce of this prior inconsistent statement and the probative value to the Crown to have the credibility of this witness assessed fairly by the jury.

[22] This is not a case like Soobrian, where the court held that the Crown should not have been permitted to call a Crown witness solely to discredit him. In that case, Crown counsel at trial had stated that he knew the witness would testify in conformity with a statement he had given and his preliminary inquiry evidence exonerating the accused. The court further found that Crown counsel wanted to cross-examine on an earlier inconsistent statement to support a contention that the witness had colluded with the accused. There was no evidence of any such collusion. In those circumstances, the court found that the evidence was of minimal probative value and highly prejudicial. In this case, as I have said, Barrett had relevant evidence to give apart from the statements about the appellant having a gun. The Crown did not adduce Barrett’s testimony for the purpose of discrediting that evidence and there was a legitimate purpose for the limited cross-examination on the inconsistent parts of the statement.

[23] The appellant also submits that the trial judge erred in permitting Detective Gormley to testify about his interactions with Barrett. He submits that this evidence was collateral and irrelevant and undermined the trial judge’s earlier ruling not allowing the statement for its truth and limiting the cross-examination. I would not give effect to this submission. The evidence of Detective Gormley was admitted to rebut the allegations made by Barrett and Francis as to how they were treated by the police; that they were threatened and, in Barrett’s case, that he was told what he had to say. Defence counsel at trial (not Mr. Posner) did not object to calling Detective Gormley for this purpose. Her concern seems to have been that the officer not be permitted to repeat what Barrett had said during the cigarette break and again during the formal interview to get around the hearsay rule. In the result, the trial judge was not required to make a ruling. The evidence of Detective Gormley was relatively brief. He testified about Barrett’s demeanour, that he had given Barrett the right to counsel, that he and his partner did not threaten Barrett nor suggest to him what he should say and that he tried to use open-ended questions.

[24] Barrett testified that his statement was false because he was told what to say by the police and because he was threatened. The Crown was entitled to call one of the officers to rebut that allegation, which was part of a broader attack by the defence on the police investigation. A summary of that attack, which was based in the cross-examination of some of the Crown witnesses, especially Francis and Barrett, is found in defence counsel’s closing address. For example, defence counsel said this about the police investigation:

Do you think that it’s just an awesome coincidence that their stories are matching better at trial without any prompting from each other or from an external source?

We do know that there are many times during original police interviews where witnesses are taken off camera and then suddenly come back on to video and tell different stories. We now find out that days before the trial starts they’re meeting with the police, which is not improper in itself, but they’re now spontaneously reviewing details that were nowhere near their original statements or their original testimony. I submit that common sense has to tell you that they’re getting their information from somewhere.

So here’s the thing about Mr. Barrett. Mr. Barrett testified he was a childhood friend of Alvin Boyce and I say was, members of the jury, because with the – with the boot on his neck, Mr. Barrett lies to police about Alvin Boyce having a firearm, and he testified that he did it to escape a charge of accessory after the fact and the threat of being kept in custody. So I say to you that in order to evaluate this evidence all you need do is compare how different witnesses were handled by the police and make no mistake when I say, handled by the police.

When Mr. Barrett is taken off camera to smoke, all of the sudden Detective Hiltz, the very guy who he said had intimidated him earlier, appears. Mr. Barrett says that aside from the intimidation prior to the statement, it’s here in the nine minutes that he’s told what to say to be released and he says that the police tell him off camera, “Tell us he had a gun, tell us he tried to give it to you and you’re out of here.” And within six minutes, ladies and gentlemen, that’s exactly what happened.

The police only wanted confirmation of their theory. The only information about the shooter being Alvin Boyce was the statement of Tristan Francis, this liar of mammoth proportions whom I will get to.

[25] In my view, the defence made the manner in which the police investigated the case, especially the manner in which they questioned witnesses, a live issue. That evidence was used to undermine the credibility of some witnesses such as Francis and bolster the credibility of others such as Barrett. Thus, evidence from the police as to how they investigated and questioned witnesses was relevant.

[26] Finally, the appellant submits that Crown counsel’s closing address concerning Barrett’s evidence was improper and the improper address was aggravated by the trial judge’s charge to the jury. The appellant focused particularly on this aspect of Crown counsel’s closing address where he was comparing the evidence of Detective Gormley with that of Barrett:

Unlike the evidence you received from Mr. Barrett, who in fact did commit perjury, his evidence was clear and to the point. He told you what the police did, what they were thinking and the results.

On the other hand, Mr. Barrett was inconsistent throughout his evidence. He lied to you in many respects, but his most outrageous lie was that he didn’t see Mr. Barrett [sic] with a gun on August 9th, 2008. [Emphasis added.]

[27] Mr. Posner submits that the jury would understand that the “outrageous lie” was Barrett’s denial that his statement about the appellant’s possession of the gun after the shooting was true. Thus, the address by Crown counsel (not Mr. Gattrell) was an invitation to use the statement that had not been adopted for its truth. However, there was a body of evidence apart from the statement he gave and then resiled from that showed that Barrett was aware that the appellant had a gun. Francis had testified that the appellant shot the deceased and therefore it could be inferred that the appellant had the gun when he left the scene with Barrett. It was therefore a reasonable inference that Barrett, who was the appellant’s friend and had left the scene with him, would have known or become aware of the gun. Thus, Crown counsel’s closing to the jury when he asked the jury to find that Barrett lied when he said that he didn’t see the appellant with a gun was not necessarily an invitation to use the statement for its truth. That part of Crown counsel’s jury address did not refer to the prior inconsistent statement.

[28] The appellant also submits that the trial judge’s review of the position of the Crown exacerbated the risk that the jury would misuse Barrett’s prior inconsistent statement. He relies upon the following part of the jury charge:

The evidence of Mr. Barrett requires some special consideration. He was a friend of Mr. Boyce. He fled with Mr. Boyce after the shooting. In addition to his obvious bias in favour of Mr. Boyce, Mr. Barrett lied on several material points of evidence. For example, he said he did not contact the police because the events he witnessed were none of his business. He also said that he was satisfied with Mr. Boyce’s suggestion that he did not know what happened, and suggested he was not curious enough to make further inquiries. Yet, he told you that he alone called Mr. Francis on his cellular phone because he wanted to know what happened. Most important, he lied by saying that his indication to the police that Mr. Boyce showed him a 9 millimetre firearm after the shooting, was the product of threat by the police. This was evidence [sic evident?] as he made only vague references to the words the officers used to compel the statement that incriminated his good friend. [Emphasis added.]

[29] The emphasized portion was not an invitation to misuse the prior inconsistent statement. It was a summary of the Crown theory that Barrett lied about his interaction with the police by saying that he was threatened and told what to say. This passage had to be considered with the clear directions as to how to use the portions of the prior inconsistent statement that were not adopted by Barrett. This direction was given after Barrett testified and again in the charge to the jury. At trial counsel’s request, the trial judge only referred to one example. The relevant part of the charge to the jury is the following:

With respect to Tristan Barrett, I am going to give you a specific example from Mr. Barrett’s testimony where he did not adopt statements that he acknowledged he had made to the police prior to this trial. I did this during the trial after Mr. Barrett testified but I want to repeat this instruction.

• There were several passages that the Crown took Mr. Barrett to with respect to telling the police in his interview about seeing Mr. Boyce with a gun on August 9^th, 2008 and a description of that gun. At this trial, Mr. Barrett told you that those statements were not true. He told you he lied when he said those things to the police.

• It is very important for you to understand, members of the jury, that this means that in law there is no evidence from this witness that he saw Mr. Boyce with any gun at any time that night.

This is just one example of a prior statement Mr. Barrett could not adopt when he was taken to that statement he gave to the police by the Crown. You may recall others.

[30] In my view, when the charge is read as a whole, the jury would not have been misled as to the use that could be made of Barrett’s prior inconsistent statement. I would not give effect to these grounds of appeal.

The Vetrovec Instructions

[31] The appellant submits that the trial judge did not adequately caution the jury as to the frailties of Francis’ evidence in accordance with Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811. There were many reasons for the jury to be cautious about relying upon Francis’ evidence. He had originally been charged with the murder, he had access to the statements of other witnesses and he had given inconsistent versions of the events. The appellant submits that the matters left with the jury as potentially confirmatory of Francis’ evidence lacked the independence required by R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104. The appellant submits that the trial judge had to make it clear to the jury that Francis tailored his evidence to the statements of the other witnesses and that to be confirmatory the evidence had to be independent of Francis.

[32] The argument in Khela was similar to the argument made here. Much of the alleged confirmatory evidence came from associates of the Vetrovec witnesses. In Khelathe trial judge made no reference to either materiality or independence. As to independence, Fish J., speaking for the court, said the following at para. 39:

Common sense dictates that not all evidence presented at trial is capable of confirming the testimony of an impugned witness. The attribute of independence defines the kind of evidence that can provide comfort to the trier of fact that the witness is telling the truth. Where evidence is "tainted" by connection to the Vetrovec witness it can not serve to confirm his or her testimony (N. Harris, "Vetrovec Cautions and Confirmatory Evidence: A Necessarily Complex Relationship" (2005), 31 C.R. (6th) 216, at p. 225; R. v. Sanderson, 2003 MBCA 109, 180 C.C.C. (3d) 53, at para. 61).

[33] Mr. Justice Fish then went on to note the important role that counsel play in a case where a Vetrovecwarning is required. As he said at paras. 49-50:

While the obligation to ensure that juries are properly instructed clearly falls to the trial judge, counsel should not abdicate their duty of assisting the court. As Bastarache J. recently explained in R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523:

... it is expected of counsel that they will assist the trial judge and identify what in their opinion is problematic with the judge's instructions to the jury. While not decisive, failure of counsel to object is a factor in appellate review. The failure to register a complaint about the aspect of the charge that later becomes the ground for the appeal may be indicative of the seriousness of the alleged violation. [para. 58]

In this light, I note without more that counsel did not object to the judge's charge in this case.

Before leaving this subject, I think it important to reiterate that counsel have a responsibility in summing up for the jury to address the issue of unsavoury witnesses and the presence or absence of confirmatory evidence. The Crown should direct the jury's attention to evidence that tends to reinforce the credibility of the tainted witness; defence counsel, to avoid any apprehended misunderstanding in this regard, should identify for the jury's benefit evidence that cannot be considered confirmatory at all. In addition, it may be helpful to assist the trial judge in crafting an appropriate Vetrovecwarning by way of a pre-charge conference.

[34] In this case, defence counsel reviewed at length in her jury address the problems with the alleged confirmatory evidence and the defence position that Francis tailored his evidence to conform with the testimony of the other witnesses. As she said at one point: “Do you think that it’s just an awesome coincidence that their stories are matching better at trial without any prompting either from each other or from an external source?” And co-counsel in extensive pre-charge submissions reviewed at length the defence concern with some of the confirmatory evidence relied upon by the Crown, including its lack of independence.

[35] As the Supreme Court said in Khela at para. 37, the content of the Vetrovec direction should at a minimum include the following elements:

(1) drawing the attention of the jury to the testimonial evidence requiring special scrutiny; (2) explaining why this evidence is subject to special scrutiny; (3) cautioning the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true; and (4) that the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused.

[36] The court went on to hold at para. 44 that where the charge contains these elements, it will generally be held to be sufficient. The charge to the jury in this case did contain these elements. In the context of this case where the likelihood of collaboration or tailoring was an obvious issue, the failure of the trial judge to expressly refer to independence was not fatal. The case is not unlike Khela itself where the court dismissed the accused’s appeal holding at para. 52:

In the context of this case, where allegations of corroboration and collusion between the impugned witnesses and others were made, the trial judge's warning should have better explained the need for confirmatory evidence to be independent and relate to an important and relevant aspect of the impugned testimony. However, any deficiencies in the Vetroveccaution itself were compensated for in other portions of the charge. Read as a whole, and in the context of the trial, I am satisfied that the charge to the jury was adequate.

[37] Another concern raised by the appellant is with the examples of evidence that the trial judge gave to the jury as possibly being confirmatory of Francis’ evidence. In my view, most of those examples were appropriate in the circumstances and could be found to be independent of Francis. Several of the examples were undisputed, such as the presence of the appellant at the scene and the immediacy of Francis’ flight after the shooting. The appellant submits that the latter piece of evidence, that Francis fled the scene, actually confirmed Francis as the shooter rather than his evidence that the appellant committed the offence. However, it was open to the jury to find that in context the timing of Francis’ flight even before the appellant’s showed that he was not the shooter. It was independent evidence and was potentially material.

[38] The appellant concedes that the call Francis received from Barrett and the appellant, was properly left as confirmatory. Barrett confirmed that he received the call and this was confirmed by the telephone records. This was the most compelling piece of independent confirmatory evidence. One piece of allegedly confirmatory evidence concerned a conversation involving the deceased and Francis just before the killing. While the appellant was present during the conversation, which was testified to by Jovel Stewart, it was unclear that the appellant adopted the statement. If not, it was not capable of being confirmatory. On the other hand, the trial judge expressly told the jury: “There is a dispute about who this was said to.” In the circumstances, the error in leaving this evidence as potentially confirmatory was not so prejudicial as to result in a substantial wrong or miscarriage of justice. The other evidence, especially the call from the appellant and Barrett, was confirmatory and independent. In my view, the charge to the jury was adequate and properly drew to the jury’s attention the problems with Francis’ evidence. I would not give effect to these grounds of appeal.

DISPOSITION

[39] Accordingly, I would dismiss the appeal.

Released: February 27, 2014

“M.R.” “M. Rosenberg J.A.”

“I agree Paul Rouleau J.A.”

“I agree G.R. Strathy J.A.”