Her Majesty the Queen v. R.D.

[Indexed as: R. v. D. (R.)]

Ontario Reports

Court of Appeal for Ontario,

Cronk, Rouleau and Tulloch JJ.A.

April 22, 2014

120 O.R. (3d) 260 | 2014 ONCA 302

Case Summary

Criminal law — Evidence — Expert evidence — Witness testifying that third party killed deceased with ice pick — Trial judge erring in excluding Crown's expert evidence on types of instruments capable of inflicting deceased's wounds — Trial judge erring in finding that proposed evidence would not assist jury in deciding who was responsible for accused's death — That error leading to flawed cost-benefit analysis.

Criminal law — Evidence — Rebuttal evidence — Defence indicating calling alternative suspect evidence and bringing pre-trial motion to force Crown to call alibi evidence regarding alternative suspect, "RB", in case-in-chief — Trial judge erring in holding that Crown prohibited from calling alibi in reply as alternative suspect evidence not surprise to Crown — Crown's alibi evidence regarding RB not probative of accused's guilt and only becoming relevant as result of defence case — Crown suffering substantial prejudice as result of error as it was forced to call its alibi evidence in-chief and lost any opportunity to cross-examine witness on alternate suspect theory — New trial ordered.

The accused was charged with second degree murder and attempted murder. At the preliminary inquiry, the defence called two friends of the accused, T and W, to testify that a third party, known as "RB", was the assailant. The Crown conceded the defence application to introduce alternate suspect evidence on the [page261] understanding that the evidence of T and W would form the basis of the defence position on that issue. On a defence pre-trial motion, the trial judge ruled that if the Crown wished to call evidence that RB had an alibi, it had to call the alibi as part of its case-in-chief. The trial judge held that reply evidence was limited to situations in which the Crown could not have reasonably anticipated the defence evidence and was caught by surprise. To give context to the proposed alibi for RB, the Crown called T to introduce the alternate suspect defence that it planned to rebut with alibi evidence. T testified that M committed the murder with an ice pick. The trial judge also ruled that a forensic pathologist called by the Crown could not give evidence regarding the instruments that were capable of inflicting the deceased's injury. The judge construed the issue facing the jury as being who killed the deceased, not what he was killed with. As the judge reasoned that permitting the Crown's expert to testify about possible murder weapons might result in the defence seeking an adjournment to call its own expert, he concluded that the resulting delay was not justified by the probative value of the proposed expert evidence. The defence did not, in fact, call third party suspect evidence. The accused was acquitted. The Crown appealed.

Held, the appeal should be allowed.

The trial judge erred in ruling that the Crown was precluded from leading the alibi evidence in reply. Reply evidence is not limited to a response to matters or defences that the Crown could not reasonably have anticipated. Although the Crown cannot be permitted to split its case, evidence is the proper subject of reply if, on its own, it is not probative of guilt and becomes relevant only as a result of the accused's case. Evidence proving that a third party did not kill the deceased was not relevant to the Crown's case until after alternative suspect evidence was led by the defence. The prejudice to the Crown's case resulting from the trial judge's error was substantial. The Crown was forced to call its alibi evidence in-chief, thereby undermining its position that the accused committed the offences, and lost the opportunity to cross-examine T on the alternate suspect theory. The error might reasonably be thought, in the concrete reality of the case, to have had a material bearing on the acquittal, and a new trial is ordered on this ground.

The trial judge erred in not permitting the Crown's expert to give evidence on the types of instruments capable of inflicting the deceased's wounds on the grounds that the proposed evidence would not be of assistance to the jury in determining who killed the deceased.

Expert evidence tending to show that the murder could not have been committed with an ice pick would have assisted the jury in evaluating T's account that the murder was committed by RB rather than the accused. The trial judge's failure to appreciate that the murder instrument was central to resolving the question of whether the accused committed the murder resulted in a flawed cost-benefit analysis. Had the trial judge properly assessed the probative value of the evidence and the significance of the issue to which it was directed, he would have concluded that the benefits of the proposed evidence outweighed the possibility of a defence request that would generate a minor delay.

R. v. Abbey (2009), 97 O.R. (3d) 330, [2009] O.J. No. 3534, 2009 ONCA 624, 68 C.R. (6th) 201, 254 O.A.C. 9, 246 C.C.C. (3d) 301, 97 O.R. (3d) 330; R. v. Campbell (1977), 1977 CanLII 1191 (ON CA), 17 O.R. (2d) 673, [1977] O.J. No. 1684, 38 C.C.C. (2d) 6, 1 C.R. (3d) 309, 1 W.C.B. 619 (C.A.); R. v. Quance, 2000 CanLII 5741 (ON CA), [2000] O.J. No. 2243, 133 O.A.C. 276, 146 C.C.C. (3d) 153, 46 W.C.B. (2d) 590 (C.A.); R. v. Stevenson, 1990 CanLII 2594 (ON CA), [1990] O.J. No. 1657, 41 O.A.C. 1, 58 C.C.C. (3d) 464, 11 W.C.B. (2d) 8 (C.A.); R. v. W. (A.) (1991), 1991 CanLII 7125 (ON CA), 3 O.R. (3d) 171, [1991] O.J. No. 651, 45 O.A.C. 359, 13 W.C.B. (2d) 23 (C.A.), apld [page262]

Other cases referred to

R. v. Araujo, [2000] 2 S.C.R. 992, [2000] S.C.J. No. 65, 2000 SCC 65, 193 D.L.R. (4th) 440, 262 N.R. 346, J.E. 2001-74, 143 B.C.A.C. 257, 149 C.C.C. (3d) 449, 38 C.R. (5th) 307, 79 C.R.R. (2d) 1, REJB 2000-21474, 48 W.C.B. (2d) 65; R. v. B. (G.), 1990 CanLII 115 (SCC), [1990] 2 S.C.R. 57, [1990] S.C.J. No. 57, 111 N.R. 62, J.E. 90-946, 86 Sask. R. 142, 56 C.C.C. (3d) 181, 77 C.R. (3d) 370; R. v. Biniaris, [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16, 2000 SCC 15, 184 D.L.R. (4th) 193, 252 N.R. 204, J.E. 2000-838, 134 B.C.A.C. 161, 143 C.C.C. (3d) 1, 32 C.R. (5th) 1, 45 W.C.B. (2d) 454; R. v. Curry (2005), 2005 CanLII 32191 (ON CA), 77 O.R. (3d) 587, [2005] O.J. No. 3763, 202 O.A.C. 187, 206 C.C.C. (3d) 100, 32 C.R. (6th) 376 (C.A.); R. v. Curry, [2014] O.J. No. 964, 2014 ONCA 174; R. v. D. (D.), [2000] 2 S.C.R. 275, [2000] S.C.J. No. 44, 2000 SCC 43, 191 D.L.R. (4th) 60, 259 N.R. 156, J.E. 2000-1894, 136 O.A.C. 201, 148 C.C.C. (3d) 41, 36 C.R. (5th) 261, 47 W.C.B. (2d) 311; R. v. Graveline, [2006] 1 S.C.R. 609, [2006] S.C.J. No. 16, 2006 SCC 16, 266 D.L.R. (4th) 42, 347 N.R. 268, J.E. 2006-916, 207 C.C.C. (3d) 481, 38 C.R. (6th) 42, EYB 2006-104245, 69 W.C.B. (2d) 721; R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466, [1986] S.C.J. No. 65, 33 D.L.R. (4th) 267, 71 N.R. 61, [1987] 1 W.W.R. 97, J.E. 86-1137, 7 B.C.L.R. (2d) 273, 29 C.C.C. (3d) 385, 14 C.P.C. (2d) 156, 54 C.R. (3d) 294, 1 W.C.B. (2d) 9; R. v. McInroy, 1978 CanLII 175 (SCC), [1979] 1 S.C.R. 588, [1978] S.C.J. No. 104, 89 D.L.R. (3d) 609, 23 N.R. 589, [1978] 6 W.W.R. 585, 42 C.C.C. (2d) 481, 5 C.R. (3d) 125, 3 W.C.B. 27; R. v. McRae, [2013] 3 S.C.R. 931, [2013] S.C.J. No. 68, 2013 SCC 68, 451 N.R. 375, 2013EXP-3868, J.E. 2013-2109, EYB 2013-230228, 6 C.R. (7th) 339, 366 D.L.R. (4th) 337, 110 W.C.B. (2d) 787; R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, 114 D.L.R. (4th) 419, 166 N.R. 245, J.E. 94-778, EYB 1994-67655, 71 O.A.C. 241, 89 C.C.C. (3d) 402, 29 C.R. (4th) 243, 23 W.C.B. (2d) 385; R. v. Spackman, [2012] O.J. No. 6127, 2012 ONCA 905, 274 C.R.R. (2d) 196, 300 O.A.C. 14, 295 C.C.C. (3d) 177, 105 W.C.B. (2d) 554; R. v. T. (K.), [2013] O.J. No. 1876, 2013 ONCA 257, 305 O.A.C. 186, 295 C.C.C. (3d) 283, 106 W.C.B. (2d) 620

Statutes referred to

Canada Evidence Act, R.S.C. 1985, c. C-5, s. 9(2)

Criminal Code, R.S.C. 1985, c. C-46, s. 676(1)(a) [as am.]

Authorities referred to

Goudge, Stephen T., Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Queen's Printer for Ontario, 2008)

APPEAL by the Crown from the acquittals entered on July 5, 2011 by Lemon J. of the Superior Court of Justice, sitting with a jury.

Lucy Cecchetto, for appellant.

Raymond Boggs, for respondent.

The judgment of the court was delivered by

TULLOCH J.A.: —

A. Overview

[1] This is a Crown appeal. Following a four-week jury trial, the respondent, a young person, was acquitted of second degree [page263] murder and attempted murder. The Crown appeals the acquittals on three grounds:

(1) the trial judge erred by ruling, on a pre-trial motion, that the Crown could not present alibi evidence in reply to refute the defence's alternate suspect theory;

(2) the trial judge erred by finding that there was no inconsistency, for the purposes of s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5 ("CEA"), between the testimony at trial of the witness Jalen Taylor and his prior statements made to the police; and

(3) the trial judge erred by excluding the Crown's expert evidence on the types of instruments capable of inflicting the deceased's wound.

[2] I begin below with a brief factual background. Next, I address each of the above issues separately by way of a short introduction to the issue and arguments on appeal, a recitation of the principles that govern the analysis, and the application of those principles to the facts of this case. For the reasons that follow, I would allow the appeal on the first and third grounds and order a new trial.

B. Factual Background

[3] The charges against the respondent arose from events that took place in the early morning hours of October 12, 2008. On the evening of October 11, a group of five friends -- Trisha Dookran, her sister Tisha, Nikith Keethianda and two others -- attended a birthday party in Mississauga. Around midnight, the group left the party and headed on foot towards the home of Keethianda, who lived nearby. At some point during their walk, three young males began to follow them and jeer at Keethianda for "wearing red in a blue area". At the time, Keethianda was wearing a red shirt and had a red bandana in his pocket. Although he was not a gang member, Keethianda understood that he was being taunted because of the association of red and blue with street gangs.

[4] Keethianda and his friends did not engage with the group of three males and carried on walking, but the group continued to pursue them and demanded that Keethianda turn over his bandana. Keethianda was then separated from his friends and surrounded by a larger group of people next to a fence near his home. He handed over his bandana, but was nevertheless struck by someone in the group. [page264]

[5] Concerned for her safety and that of her friends, Tisha Dookran contacted her friend Shaan Ayub by phone and asked him to give the group a ride. Ayub, who was in his car with several passengers, told Tisha that he was coming to pick her up. Brandon Paltooram, who was driving a car beside Ayub's, followed him.

[6] After arriving at the scene, Ayub, Michael Singh and Paltooram exited the cars. The fight quickly escalated into a brawl. Noticing that a crowd of people had gathered around his friends, Ayub sought to retrieve Trisha and Tisha and bring them back to the car. Shortly thereafter, one of the young men produced a knife, and Paltooram and Singh became engulfed in the brawl. Moments later, Singh was stabbed six times and Paltooram was stabbed once in the heart. Singh survived, but Paltooram died.

[7] The respondent, R.D., was charged with second degree murder and attempted murder. The central issue for trial was identity. The respondent's appearance is distinctive: he is 4'11" and had a mohawk hairstyle with a design on the side at the time of the events. No photographic lineup was held, but several witnesses provided descriptions of the person with the knife, some of which were consistent with the respondent's appearance. There was also contradictory and vague evidence of what happened in the brawl.

[8] Following a four-week trial, a jury acquitted the respondent on both charges.

C. Issues on Appeal

[9] I now turn to the Crown's arguments on appeal. First, the Crown submits that the trial judge erred in ruling, on a pre-trial motion, that the Crown was barred from presenting alibi evidence in reply to refute the defence's alternate suspect theory. Second, the Crown contends that the trial judge erred in finding no inconsistency between the trial testimony and prior statements of witness Jalen Taylor. Third, the Crown argues that the trial judge erred by excluding the Crown's expert evidence on the instrument used to wound the deceased.

D. Analysis

(1) The Crown's burden on appeal

[10] Under s. 676(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, the Crown's right of appeal from an acquittal is restricted to "any ground of appeal that involves a question of law alone": see R. v. Curry, [2014] O.J. No. 964, 2014 ONCA 174, at para. 37. [page265] Acquittals are not lightly set aside, and the Crown's burden on appeal is a heavy one.

[11] However, contrary to the respondent's submissions, to succeed on an appeal from an acquittal the Crown is not required to persuade the court that the verdict would have necessarily been different. To secure a new trial, the Crown must "satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal": R. v. Graveline, [2006] 1 S.C.R. 609, [2006] S.C.J. No. 16, 2006 SCC 16, at para. 14. As I explain below, I would find that the Crown has discharged that burden in this case.

(2) The Crown's alibi evidence

(a) The evidence and arguments on appeal

[12] At the preliminary inquiry, the defence called two friends of the respondent -- Jalen Taylor and Trai Wilson -- to testify that a third party, Tyrell Mitchell or "Rich Boy", was the assailant. The Crown conceded the defence application to introduce alternate suspect evidence on the understanding that the evidence of Taylor and Wilson would form the basis of the defence position on this issue.

[13] The Crown investigated the third party suspect argument and determined that Rich Boy had an alibi. The Crown intended to call Rich Boy, his grandmother and his uncle to testify that Rich Boy was not present when the offences were committed. On a defence pre-trial motion, the trial judge ruled that this alibi evidence had to be called by the Crown in-chief. The trial judge held, in reasons dated June 27, 2011, that the Crown would not be allowed to present this evidence in reply because there would be "absolutely no surprise to the Crown as to the contents of the defence evidence" and because the Crown was prepared to respond to the relevant and anticipated defence evidence.

[14] On appeal, the Crown submits that, while it cannot split its case, it has no obligation to lead evidence rebutting a defence, even if anticipated. A defence is live only once it has been introduced in the defence case, and the specific evidence that will be led by the defence is unknown until it is introduced. Matters that are peripherally or marginally relevant need not be called in the Crown's case-in-chief. Here, the trial judge misunderstood the principle of relevance and the law regarding reply evidence. The Crown must prove beyond a reasonable doubt that the accused committed the offence. The Crown does not need to tender evidence in-chief that someone other than the accused [page266] did not commit the offence. In requiring the Crown to call its alibi evidence in-chief because, in the trial judge's view, the "element of surprise [was] removed", the trial judge misinterpreted the law regarding reply evidence, including this court's decision in R. v. W. (A.) (1991), 1991 CanLII 7125 (ON CA), 3 O.R. (3d) 171, [1991] O.J. No. 651 (C.A.). According to the Crown, the trial judge's error created unfairness because the Crown had to call Taylor in-chief to provide the necessary context for its alibi evidence. The Crown therefore lost the right to cross-examine this witness and was required to both anticipate the contours of the defence evidence and reply to it before it had been led.

[15] The respondent argues that the Crown can only call reply evidence where a matter has been raised that the Crown could not reasonably have anticipated and dealt with, or where a matter that emerged in the Crown's case has taken on added significance as a result of the defence case. According to the respondent, the Crown anticipated the alternate suspect defence and had the opportunity to address this defence by calling its alibi evidence. Further, it does not matter that evidence which emerged during the Crown's case could have taken on added significance as a result of the defence case because the defence led no evidence. The respondent adds that there is a heavy onus on the Crown on appeal from an acquittal, and the result would not have been different if the Crown were permitted to call its alibi evidence in reply.

(b) Governing principles

[16] The general rule with respect to the order of proof in a criminal case is that the Crown must introduce, in its case-in-chief, all the evidence in its possession upon which the Crown relies to prove the guilt of the accused: R. v. T. (K.), [2013] O.J. No. 1876, 2013 ONCA 257, 295 C.C.C. (3d) 283, at para. 41; R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466, [1986] S.C.J. No. 65, at pp. 473-74 S.C.R. The underlying objective of the rule is to prevent the unfair surprise, prejudice and confusion that could result if the Crown were allowed to split its case: T. (K.), at para. 42. The accused is entitled at the close of the Crown's case to have its full case so that the accused knows from the outset what must be met in response: Krause, at pp. 473-74 S.C.R.

[17] However, it is well established that the general rule regarding order of proof is not an absolute bar to the introduction of reply evidence by the Crown. Crown rebuttal is permitted when necessary to ensure that each party has had an equal opportunity to hear and respond to the full submissions of the other: Krause, at p. 474 S.C.R. Accordingly, the Crown is [page267] permitted to call reply evidence not only when the defence has raised some new matter or defence which the Crown could not have reasonably anticipated and with which it had no opportunity to deal, but also when an aspect of the Crown's case has taken on added significance as a result of the defence case: T. (K.), at para. 43. Rosenberg J.A. stated the principle succinctly in R. v. Quance, 2000 CanLII 5741 (ON CA), [2000] O.J. No. 2243, 146 C.C.C. (3d) 153 (C.A.), at para. 21:

[I]t has always been understood that the trial judge has a discretion to admit evidence in reply concerning an issue that was of only marginal importance during the prosecution's case in chief, but that took on added significance as a result of the defence evidence.

[18] Similarly, because the rule regarding order of proof is designed to prevent the Crown from splitting its case, it does not prevent the Crown from introducing evidence in reply to the defence case that is not in and of itself probative of guilt. Reply evidence can be adduced to refute a specific defence advanced by the accused: see, e.g., W. (A.), supra, at p. 181 O.R.; R. v. Campbell (1977), 1977 CanLII 1191 (ON CA), 17 O.R. (2d) 673, [1977] O.J. No. 1684 (C.A.), at p. 693 O.R.; R. v. Stevenson, 1990 CanLII 2594 (ON CA), [1990] O.J. No. 1657, 58 C.C.C. (3d) 464 (C.A.), at p. 490 C.C.C. As Doherty J.A. recognized in W. (A.), at p. 181 O.R., the Crown is entitled to introduce this kind of reply evidence regardless of whether it could have anticipated the position of the defence:

I also reject the suggestion that because the Crown had some indication that the appellant would advance physical incapacity as a defence that the Crown was required to lead any evidence it had to counter that position as part of its case. That proposition is contrary to this court's decisions in R. v. Campbell, supra, and R. v. Stevenson, supra, and would, in my view, if accepted, prolong and potentially confuse trials by requiring that the Crown lead evidence on matters which, in the end, may have virtually no significance in a particular case.

[19] This court's traditional approach, as applied in Quance, W. (A.), Campbell and Stevenson, is consistent with the objective of the order of proof. There is no question that the defence is entitled to have the Crown's full case in order to mount its response. Case-splitting is impermissible. Yet evidence that is not probative of the accused's guilt is not part of the case that the Crown must establish. Put somewhat differently, an accused is not surprised by reply evidence that is directed solely at an issue put in play by the defence case. Reply evidence that is not in and of itself probative of guilt does not engage the fairness concerns addressed by the rules against case-splitting.

[20] Inherent in all the various formulations of the test for reply evidence is the significance of the case actually called by [page268] the defence. Whether or not the Crown is entitled to call reply evidence depends in large measure on the evidence adduced and arguments raised by the defence. The Crown's entitlement to lead reply evidence turns in part on whether the defence has raised a new matter or defence, or tendered evidence that caused the Crown's case to be viewed in a new or different light. In other words, only with the benefit of the defence evidence can the admissibility of reply evidence be assessed.

(c) Analysis

[21] In my respectful view, the trial judge erred in ruling that the Crown was precluded from leading the alibi evidence in reply. Had the trial judge approached the issue of reply evidence in accordance with the applicable legal principles, he would have concluded that the alibi evidence was properly in reply to the proposed defence position. Reply evidence is not limited to a response to matters or defences that the Crown could not reasonably have anticipated: T. (K.). I agree with Doherty J.A.'s analysis in W. (A.) and Rosenberg J.A.'s analysis in Quance; evidence is the proper subject of reply if, on its own, it is not probative of guilt, and becomes relevant only as a result of the defence case.

[22] The case at bar is a prime example. The Crown's alibi evidence was not probative of the respondent's guilt until the alternate suspect theory came to light at trial. Until that time, Rich Boy's whereabouts on the night of the offence were irrelevant to the respondent's guilt, as would be true of the whereabouts of any other individual selected at random. Even the language used by the trial judge -- "the Crown is completely prepared to respond to [the third party suspect evidence]" -- acknowledges that the alibi evidence was intended to respond to the defence case. But for the trial judge's erroneous ruling, the Crown would have had no reason to lead evidence on the issue in its case-in-chief. Nor would the defence have been surprised by reply evidence addressing an alternate suspect theory that it had introduced.

[23] The trial judge distinguished W. (A.) on the basis that, unlike the facts in that case, the Crown in this case "[knew] for certain what the nature of the defence [would] be". Subsequent events at trial established the fallacy of this statement. Although the defence repeatedly stated its intention to call third party suspect evidence, it ultimately did not do so. It was not obligated to do so. Therefore, the Crown did not know -- and could not have known -- for certain that third party suspect evidence would be called. The trial judge also misinterpreted W. (A.) by fixating on whether the third party suspect defence [page269] would be of surprise to the Crown. The proper question is whether the defence would be caught by surprise by the evidence that the Crown intends to lead in reply: W. (A.), at para. 33. Had the defence in fact led evidence on its alternate suspect theory, the Crown's reply evidence on that point would have occasioned no surprise to the defence.

[24] The prejudice to the Crown's case stemming from the trial judge's error was both substantial and obvious. As a result of the trial judge's ruling, the Crown was forced to call its alibi evidence in-chief. Because the alibi evidence was not yet responsive to anything raised by the defence, the Crown called Taylor to testify that the offence was committed by Rich Boy, not the appellant. The respondent argues that if there was any undertaking made by the defence, it was discharged by the Crown's tactical decision to call Taylor. I do not agree.

[25] In my view, the Crown's decision to call Taylor was a reasonable decision, which flowed directly from the trial judge's ruling. Calling Taylor introduced the third party suspect defence to the jury and provided the necessary context for the Crown's alibi evidence; the Crown's alibi evidence would be meaningless without an understanding of the third party suspect defence. Thus, the trial judge's ruling put the Crown in the position of responding to evidence that had not yet been led and a defence theory that had not yet been put forward. Moreover, the Crown lost its opportunity to cross-examine Taylor.

[26] In considering the Crown's decision to call Taylor, it must be noted that defence counsel repeatedly affirmed that he would be calling evidence on the alternate suspect theory. Ultimately, the defence did not call any alternate suspect evidence, perhaps not surprisingly given that its evidence on the issue had largely been introduced by the Crown in-chief as a result of the trial judge's error. The Crown therefore had no opportunity to cross-examine a crucial witness on the alternate suspect theory.

[27] In the result, the Crown was required to raise the possibility of an alternate suspect in its case-in-chief, thereby undermining its position that the respondent committed the offences and losing any opportunity to cross-examine on the alternate suspect theory. Defence counsel did not miss the opportunity to draw this to the attention of the jury, stating as follows in his closing submissions:

Now, Jalen Taylor, he was called by the Crown. And the Crown told you when he was giving his opening that I would call him, but for his own reasons, he decided to call Jalen Taylor as a witness so I didn't have to. Jalen said emphatically and repeatedly that [the respondent] did not stab anybody. He said that Rich Boy stabbed both Brandon and Michael. [page270]

[28] After it became clear that the defence might not call its third party suspect evidence, the trial judge himself recognized the prejudicial effect of the ruling on the Crown and surmised that the likely result would be a mistrial:

[W]e've got a problem now because I made a ruling about reply. . . . And that reply ruling was based on your concession that alternate suspect was made out by [the Crown's] concession that based on what you were going to lead he knew about [sic]. If you say, "No, maybe I do, maybe I don't, maybe it is, maybe it isn't," then the whole thing unravels.

If you don't call [the alternate suspect witnesses] and the Crown has led reply evidence to non-existent defence evidence, I think the big "M" word comes up because you in your tactics have generated some evidence forced upon the Crown by my ruling that you can say, "Well, see, you know, why did the Crown call these people?"

[I]f you don't call Wilson and Taylor and rely on something else, that ruling prejudices the Crown's case.

(Emphasis added)

I agree with the trial judge's own assessment of the impact of the error.

[29] In my view, the Crown has demonstrated on appeal that the trial judge's error in his ruling on the Crown's alibi evidence might reasonably be thought, in the concrete reality of the case, to have had a material bearing on the acquittal: Graveline, supra, at para. 14; R. v. McRae, [2013] 3 S.C.R. 931, [2013] S.C.J. No. 68, 2013 SCC 68, at para. 30. The effect of the error left the trier of fact with an incomplete or distorted picture on the central issue of the identity of the killer: R. v. Spackman, [2012] O.J. No. 6127, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 256.

[30] The trial judge's error seriously undermined the Crown's case. In my view, this error was not cured by the trial judge's mid-trial alternate suspect charge or by the leave given to the Crown to refer to the issue in its opening statement. Both the charge and the Crown's opening statement -- which sought to convey to the jury the purpose of the Crown's evidence -- were made under the assumption that the defence would in fact call evidence on the alternate suspect theory. This did not occur. Instead, the Crown was placed in the position of leading evidence that, in the end, was not part of its case and that had the effect of denying the Crown the opportunity to cross-examine the anticipated defence witnesses. This prejudice could not be -- and was not -- mitigated by the opening statement or mid-trial charge. [page271]

[31] Although I would allow the appeal on this ground alone, I believe it is appropriate to consider the other arguments raised by the Crown on appeal.

(3) The section 9(2) application

(a) The evidence and arguments on appeal

[32] The Crown's second argument on appeal arises from the trial judge's finding that prior statements of the witness Taylor were not prior inconsistent statements for the purposes of s. 9(2) of the Canada Evidence Act. As previously mentioned, the Crown called Taylor at trial in order to introduce the alternate suspect defence it planned to rebut with alibi evidence. Taylor testified that Rich Boy was present when the offences were committed and was involved in the fight that broke out. The Crown made an application under s. 9(2) of the CEA to cross-examine Taylor on the basis that he had not identified Rich Boy in two prior statements to the police.

[33] Taylor made his first statement to police on October 14, 2008, and his second statement on October 24, 2008. In the first statement, Taylor did not mention the name Rich Boy, but did describe a short individual with hair like his own who had been wearing a black Pirates baseball hat with a red and yellow "P". According to Taylor's first statement, he saw the individual in the Pirates hat reach into his waistband and pull something out, but he did not see what it was. In the second statement, Taylor stated that both the respondent and another person wearing a black hat with a yellow "P" were involved in the fighting in which the victims were stabbed. The individual with the yellow "P" hat was about 5'5'' or 5'6'' tall and had a short "afro" hairstyle. According to Taylor's second statement, this individual took out a long knife with a thick handle and stabbed the deceased.

[34] Taylor testified on the voir dire that he had identified Rich Boy outside of the interview room on October 24, 2008, and the Crown conceded that the investigating officer's notes supported this testimony. Also on the voir dire, Taylor testified that he did not initially provide to police the name of the individual in the black Pirates hat. Further, Taylor testified that references to the individual wearing a black Pirates hat were references to Rich Boy. The trial judge concluded that the Crown had not demonstrated any significant inconsistency and dismissed the s. 9(2) application.

[35] The Crown submits on appeal that the trial judge erred by finding no inconsistency between Taylor's testimony at trial [page272] and his prior statements to police. The Crown's position on appeal is that the trial judge should have recognized the inconsistencies, namely Taylor's failure to identify Rich Boy in his first statement to police and the discrepancies in Taylor's accounts of the individual who committed the stabbing.

[36] The respondent says there was no inconsistency in Taylor's evidence. Taylor always maintained that the respondent was not the assailant and that the actual assailant was short and wore a Pirates cap. Taylor named Rich Boy as the assailant in one of his interviews with police, at the preliminary inquiry and at trial. Taylor also explained that he did not specifically name Rich Boy in the initial interview because he was afraid.

(b) Governing principles

[37] Section 9(2) of the CEA provides as follows:

9(2) Where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audio tape or video tape or otherwise, inconsistent with the witness' present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider the cross-examination in determining whether in the opinion of the court the witness is adverse.

[38] This provision gives the trial judge a discretion to permit, without proof that the witness is adverse, cross-examination on a prior inconsistent written statement or statement recorded or reduced to writing: R. v. Curry (2005), 2005 CanLII 32191 (ON CA), 77 O.R. (3d) 587, [2005] O.J. No. 3763 (C.A.), at para. 28; R. v. McInroy, 1978 CanLII 175 (SCC), [1979] 1 S.C.R. 588, [1978] S.C.J. No. 104, at p. 604 S.C.R. To succeed in arguing, on appeal, that the trial judge erred in finding no inconsistency, the appellant must show that the trial judge exercised this discretion unreasonably: Curry, at para. 28.

(c) Analysis

[39] In my opinion, in the circumstances, the trial judge did not exercise his discretion unreasonably in concluding that the Crown had not pointed to an inconsistency between Taylor's testimony at trial and his statement to police. Given the Crown's application as argued and the evidence presented on the voir dire, it was open to the trial judge to find that Taylor's failure to mention the name Rich Boy in his first statement to police was not an inconsistency for the purposes of s. 9(2) of the CEA.

[40] The Crown's s. 9(2) application focused on Taylor's failure to mention the name Rich Boy in his statements to police made on October 14, 2008 and October 24, 2008. In embarking on the [page273] application, the Crown characterized the alleged inconsistency in the following terms:

What I would -- will ultimately suggest to Your Honour is that there is material inconsistency based on the presentation of the name "Rich Boy" as one of the parties who was present. . . . It's my suggestion that Mr. Taylor, in the course of being interviewed on two occasions with the police, never mentioned the presence of the person named "Rich Boy", and . . . [t]hat, in my respectful submission, is a material inconsistency.

[41] The Crown eventually conceded that Taylor did identify Rich Boy on October 24, 2008, but maintained that Taylor did not mention his name in the first statement of October 14, 2008: "It's not so much an inconsistent description [that forms the basis of the application], he never mentions him on the 14th; he's never mentioned -- Rich Boy is not mentioned on the 14th."

[42] Taylor testified, on the voir dire, that Rich Boy was the individual described in his first statement. He also testified that he identified Rich Boy ten days later, on October 24, 2008. Therefore, there was evidence on which to conclude that the subsequent statements and evidence at trial, which included the name Rich Boy, were simply a more complete version of events than the initial statement, and that the Crown had not identified an inconsistency based on the absence of the name Rich Boy in the statement of October 14, 2008.

[43] A review of Taylor's statements to police and testimony does reveal certain discrepancies that might have formed the basis of a different s. 9(2) application. For example, in his first statement, Taylor stated that he "didn't see when anyone got stabbed [and] didn't even notice when any of them got stabbed". He stated that he did not see the knife used to commit the offence. In his second statement, Taylor initially stated that he "didn't see when they got stabbed", but later described aspects of the stabbing and the knife that was used. At trial, Taylor testified that he saw Rich Boy stab one of the victims in the heart and that the murder instrument was an ice pick. These are significant inconsistencies. However, the trial judge's exercise of discretion must be evaluated in the context of the s. 9(2) application actually argued, not the s. 9(2) applications that were available to the Crown. In light of the application as framed, which focused on the absence of the name Rich Boy in Taylor's first statement, I conclude that the trial judge did not exercise his discretion in an unreasonable manner.

[44] Accordingly, I would not give effect to this ground of appeal. [page274]

(4) The expert evidence on the murder instrument

(a) The evidence and arguments on appeal

[45] Taylor testified that the murder was committed by Rich Boy and described the object wielded by Rich Boy as an ice pick. According to Taylor, the murder instrument resembled a screwdriver. The Crown sought to have Dr. Toby Rose, a forensic pathologist, give evidence on the cause of the victim's death, the nature of the injury and the types of instruments capable of creating that injury. Defence counsel agreed that Dr. Rose could opine on the first two points, but objected to her proposed evidence regarding the instruments capable of inflicting the injury. Accordingly, a voir dire was conducted.

[46] On the voir dire, Dr. Rose testified that photographs showing the deceased's wound on the skin were inconsistent with infliction using an ice pick or screwdriver. In her opinion, the wound was most likely caused by a knife since the wound did not exhibit the lacerations commonly caused by blunter instruments. The wound was consistent with a sharply pointed and bladed instrument. Dr. Rose's opinion is essentially captured in the following passage from her testimony:

I think [an ice pick is] a fairly thin round metal object with a pointed tip, but no sharp edge. I would expect that the wound in the skin, and it's the wound in the skin that is the most important, would look -- would not look like this. It would -- it would look round in the skin. How -- and then it would probably look round all the way through. This one, I admit, on some of the photographs, has round features, which I think I can explain because of the gaping due to the muscle fibres, but it had no round appearance on the skin.

[47] The trial judge ruled that Dr. Rose could not offer her opinion as to the instruments capable of inflicting the deceased's injury. Dr. Rose was qualified to provide an opinion on this issue, having spoken on the forensic interpretation of wounds and the pathology of wounds and served as a member of the project team of the Office of the Chief Coroner of Ontario for the Commission of Inquiry into Ontario's Pediatric Forensic Pathology System, led by Commissioner Stephen T. Goudge of this court: see the report, Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Queen's Printer for Ontario, 2008). There was also no question that Dr. Rose's proposed evidence would be logically relevant.

[48] However, in the trial judge's view, the evidence would not be of assistance to the jury in helping them determine the issue of who caused the death of the deceased. Allowing the proposed evidence would trigger a defence request for a response and would result in delay. The trial judge appears to [page275] have excluded the evidence because its benefits did not outweigh the associated delay.

[49] On appeal, the Crown argues that the trial judge erred in his application of the test for admission of expert opinion evidence. According to the Crown, Dr. Rose's evidence was reliable expert opinion on a material issue for which the jury needed assistance. The trial judge erred in evaluating the necessity of the evidence by analyzing whether the evidence was determinative of identity, rather than whether the evidence was necessary to assist in resolving a material issue. The trial judge also erred in concluding that the expert evidence was not relevant to the question of who committed the offence. In the context of the evidence, including Taylor's evidence that Rich Boy committed the offence with an ice pick, the issue of the murder weapon was critical to the identity of the offender. It was also relevant to Taylor's credibility. Further, the trial judge erred in his cost-benefit analysis by excluding the evidence due to a speculative cost -- the possibility that the defence would dispute Dr. Rose's evidence with an expert of its own.

[50] The respondent submits that the trial judge properly weighed the costs and benefits of the proposed evidence. According to the respondent, the Crown fails to distinguish between logical relevance and legal relevance, the latter involving an analysis of the probative value and prejudicial effect of the evidence. Here, the delay that concerned the trial judge included the time it would have taken for the defence to find an expert, have the expert's funding approved by legal aid, and have the expert analyze the evidence. Also according to the respondent, the expert evidence was not necessary to assist the jury because it was a matter of common sense.

(b) Governing principles

[51] Expert opinion evidence is presumptively inadmissible. In order to decide the admissibility of particular expert evidence, the trial judge must first determine the nature and scope of the proposed evidence: R. v. Abbey (2009), 97 O.R. (3d) 330, [2009] O.J. No. 3534, 2009 ONCA 624, at para. 62. The admissibility inquiry then proceeds in two stages, which together incorporate the criteria articulated by Sopinka J. in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36. First, the party seeking to rely on expert evidence must demonstrate that it relates to a subject matter properly the subject of expert opinion; that the proposed expert is qualified to provide the opinion; that the opinion is not contrary to any other exclusionary rule; and that the proposed opinion is logically relevant to a material issue: Abbey, at para. 80. [page276] Second, the trial judge must exercise his or her gatekeeper function, weighing the costs and benefits of the proposed expert evidence to determine whether it is sufficiently beneficial to be admitted even if it meets the pre-conditions of the first stage of the admissibility inquiry: Abbey, at para. 76. For the purposes of this second stage, benefits include the probative value of the evidence and the significance of the issue to which it is directed, whereas costs include consumption of time, prejudice and confusion: Abbey, at paras. 87, 90-91. The product of this cost-benefit analysis is entitled to deference on appeal: Abbey, at para. 97; R. v. D. (D.), [2000] 2 S.C.R. 275, [2000] S.C.J. No. 44, 2000 SCC 43, at para. 13.

[52] The application or interpretation of a legal standard constitutes a question of law: R. v. Araujo, [2000] 2 S.C.R. 992, [2000] S.C.J. No. 65, 2000 SCC 65, at para. 18; R. v. Biniaris, [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16, 2000 SCC 15, as does an issue pertaining to the admissibility of evidence: Spackman, supra, at para. 98; R. v. B. (G.), 1990 CanLII 115 (SCC), [1990] 2 S.C.R. 57, [1990] S.C.J. No. 57. This court has also treated errors in excluding expert evidence as questions of law: see, e.g., Abbey, at para. 174.

(c) Analysis

[53] The trial judge appears to have excluded the proposed evidence on the basis of the residual cost-benefit analysis that occurs at the second stage of the Abbey inquiry. The trial judge found that Dr. Rose was qualified to provide the proposed evidence and that the evidence was logically relevant to the issues before the jury. The trial judge did not identify any exclusionary rule that would foreclose the evidence the Crown sought to introduce through Dr. Rose. Nevertheless, the trial judge doubted the necessity of the proposed evidence, and ultimately excluded it in the exercise of his gatekeeper function.

[54] I would allow the appeal on this ground. The trial judge committed two related errors in his application of the Abbey test. At the outset, I note that, in his ruling, the trial judge failed to clearly delineate the nature and scope of Dr. Rose's proposed evidence. The admissibility inquiry requires the trial judge to identify with exactitude the scope of the proposed opinion: Abbey, at para. 63. The trial judge's failure to set out the nature and scope of Dr. Rose's proposed evidence before deciding its admissibility makes it difficult to weigh the benefits and costs of the particular evidence. The trial judge's failure to define the proposed evidence at the outset may well have contributed to the commission of the errors to which I will now turn. [page277]

[55] First, the trial judge erred in concluding that the proposed evidence would not be of assistance to the jury in deciding who was responsible for the deceased's death. With respect, the opposite is true. The trial judge held that "[t]he question in this trial is not what caused the death of the deceased but who". He noted that "there is a host of evidence dealing with who, not what weapon [was used]". However, the two questions were intertwined in light of Taylor's evidence. Taylor testified that the murder was committed by a third party, Rich Boy, using an ice pick. His evidence constituted third party suspect evidence on which the defence intended to rely to exculpate the respondent. Expert evidence tending to show that the murder could not have been committed with an ice pick would have assisted the jury in evaluating Taylor's account that the murder was committed by Rich Boy rather than the respondent. The murder instrument was central to resolving the question of whether the respondent committed the murder.

[56] Contrary to the respondent's assertion, a determination of the murder instrument based on an analysis of the deceased's skin wound is not a matter of common sense. Ordinary persons are not trained in forensic interpretation of wounds. Accordingly, members of the jury were unlikely to form a correct judgment on this issue in the absence of expert opinion: D. (D.), supra, at para. 21.

[57] Second, and as a direct result of the first error, the trial judge conducted a flawed cost-benefit analysis in excluding Dr. Rose's evidence. Having failed to appreciate the value of the proposed evidence, the trial judge measured its discounted benefits against the only cost identified -- the possibility of a delay in the event that the defence sought an opportunity to respond to the proposed evidence. I agree with the Crown that this cost was speculative; although no defence request had been made, the trial judge considered that "the defence would have the opportunity to say, 'we want our opportunity', which would generate a delay almost certainly". Had the trial judge properly assessed the probative value of Dr. Rose's evidence and the significance of the issue to which it was directed, he would have concluded that the benefits of the proposed evidence outweighed the possibility of a defence request that would generate a minor delay.

E. Disposition

[58] I would allow the appeal on the first and third grounds identified by the Crown. The trial judge's errors in dealing with the Crown's alibi evidence and the expert evidence on the [page278] murder instrument were serious and prejudicial to the Crown. The circumstances warrant a new trial, and I would so order.

Appeal allowed.

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