COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mullings, 2014 ONCA 895

DATE: 20141216

DOCKET: C48417

Strathy C.J.O., Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dwayne Mullings

Appellant

Timothy E. Breen, for the appellant

Roger Pinnock and Greg Skerkowski, for the respondent

Heard: June 23, 2014

On appeal from the conviction entered on November 4, 2007 by Justice J.R. Belleghem of the Superior Court of Justice, sitting with a jury.

Strathy C.J.O.:

[1] Dwayne Mullings appeals his conviction for first degree murder of Bogdan Spolski, who was shot and killed at his home in Mississauga on January 10, 2004. His first trial ended in a mistrial due to a hung jury. After a year-long second trial, he was convicted and sentenced to life imprisonment.

Background

[2] The following overview will put the issues in context. I will add detail as I consider each ground of appeal.

[3] It was bitterly cold on the day of the shooting. Spolski became involved in an altercation with a man who was trying to steal his car, which he had left running in his driveway. The man shot and wounded him as they struggled on the driveway. Their struggle moved into the garage, where the assailant shot him again, this time in the chest, before taking his wallet and fleeing in the car. Spolski was found lying dead at the back of his garage. He had suffered two wounds from a .22 calibre gun.

[4] Two days later, Spolski’s car was found in the parking lot of a high-rise in Scarborough, at the other end of the city. The interior had been set on fire, probably to destroy evidence.

[5] The central issue at trial was identity. Eyewitness evidence of a neighbour and two visitors to the Spolski residence was insufficient to identify the appellant as the perpetrator. Circumstantial evidence, referred to below, was consistent with the appellant having a motive, opportunity and means to commit the crime.

[6] The centrepiece of the Crown’s case, however, was an alleged confession made by the appellant some time after the shooting to three associates – Jaurel Preddie, Ranjit Dhillon and Kareem Watson.

[7] In statements made to police in April 2007, each said the appellant had confessed to the shooting while they were together in a car, on their way to buy guns. They claimed the appellant had shown them a wound on his arm and told them he had shot himself while struggling with a man he had shot and killed in the course of a robbery.

[8] The Crown argued the confession was true and was made by the appellant to demonstrate to his associates, whom he had set up to be robbed during the gun buy, that he was capable of deadly violence.

[9] All three associates had criminal records or outstanding charges. Watson and Preddie were in custody at the time of their initial statements to the police and when they testified at trial. The Crown acknowledged they were disreputable “reprobates”. The appellant’s position at trial was that they were all lying and had either colluded or each had fabricated the story on his own.

[10] The appellant did not testify.

[11] The Crown also relied on circumstantial evidence capable of connecting the appellant to the shooting. This evidence included:

• the appellant’s girlfriend, Tyanna Fletcher, lived in an apartment building a “stone’s throw” from Spolski’s house – the appellant had left her apartment about an hour before the shooting, after an angry argument;

• Fletcher said she had observed the appellant carrying a gun when he was at her apartment. Other evidence put him in possession of a gun the night before the shooting. The description of the gun was consistent with the type of gun used to shoot Spolski;

• the appellant did not have a vehicle and had attempted, without success, to arrange a ride before he left Fletcher’s apartment;

• records tracing the movement of the appellant’s cell phone were consistent with him being in the vicinity of Spolski’s home in Mississauga at the time of the shooting and travelling thereafter across the city to the area in Scarborough where Spolski’s car was subsequently found, not far from the home of one of the appellant’s friends;

• conversations between the appellant and Fletcher, obtained through police wiretaps of her phone after the shooting, supported the conclusion that the appellant was attempting to induce her to lie about his presence at her apartment on the day of the shooting; and

• two circular scars observed on the appellant’s right forearm at the time of his arrest were consistent in appearance with the .22 calibre gunshot wounds on Spolski’s body.

[12] The Crown’s theory was that the appellant was angry and carrying a gun when he left Fletcher’s apartment in Mississauga. He had no means of transportation on the very cold day and attempted, without success, to arrange a ride. He saw Spolski’s unoccupied car running in the driveway of a home near the apartment building and decided to take it. He struggled with Spolski outside the garage and shot both himself and Spolski in the arm. Infuriated, he dragged Spolski to the back of the garage where he brought him to his knees and shot him point-blank in the chest. He took Spolski’s wallet and the car, drove to Scarborough where he abandoned the car, set it on fire, and walked away.

Grounds of Appeal

[13] The appellant raises four grounds of appeal:

(a) Admissibility of Preddie’s Evidence Under KGB: the trial judge erred in ruling that Preddie’s evidence at the appellant’s preliminary inquiry was admissible under R. v. B.(K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740 (“KGB”);

(b) Collusion: the trial judge erred in his jury instruction with respect to collusion by the three associates who gave statements about the appellant’s confession;

(c) Mistrial: the trial judge erred in refusing to grant a mistrial after Murray refused to answer further questions before his testimony had been completed; and

(d) First degree murder: the appellant’s conviction under s. 231(5)(e) of the Criminal Code, R.S.C. 1985, c. C-46 (murder while committing unlawful confinement) was unreasonable.

Analysis

(a) Admissibility of Preddie’s Evidence under KGB

[14] In April 2004, police questioned Dhillon, Watson and Preddie in connection with the appellant’s involvement in the killing. All three gave statements. In substance, each said that the appellant had shown them one or two wounds on his arm while they were in a car with him on their way to the gun purchase. The appellant told them these were self-inflicted gunshot wounds from a struggle with another man. The appellant said he ultimately shot and killed the man, then stole his car.[1]

[15] Preddie was a self-professed drug dealer with a significant criminal record. In early March 2004, he was arrested on multiple charges, including possession for the purpose of trafficking and assaulting a peace officer.

[16] He was visited in jail by police officers in April 2004. They asked whether he knew anything about a murder in Mississauga. Preddie denied any knowledge. His position changed after he learned that Watson had cooperated with police and after police offered him a sentence of time served on his outstanding charges, in return for his cooperation.

[17] Preddie gave a videotaped statement to police on April 27, 2004. He described the appellant’s confession in the car on the way to the gun buy and said the appellant had shown him the wound on his arm. Two days later, he pleaded guilty to possession of cocaine and assaulting a peace officer, received a sentence of time served and was released. The other charges were withdrawn.

[18] Preddie’s evidence at the appellant’s preliminary inquiry on January 5, 2006 was generally consistent with his video statement.

[19] Preddie failed to appear as a witness at the appellant’s first trial. At the second trial, he was in jail on other charges and was compelled to testify. He recanted the evidence he had given at the preliminary inquiry. He testified that his police statement was a lie and that he gave it to get out of jail and to get revenge against the appellant for the gun buy rip-off.

[20] A KGB application was made at the appellant’s trial to admit Preddie’s preliminary inquiry testimony confirming his original account of the appellant’s confession. The events preceding his preliminary inquiry testimony became the focus of the ensuing voir dire.

[21] Preddie testified that he met with Crown counsel, Stephen Sherriff, prior to giving his evidence at the preliminary inquiry and told Sherriff that his statement was false. He claimed Sherriff told him that if he changed his story he would be charged with obstructing justice, perjury and being an accessory to murder and that the drug charges might be re-laid. Preddie claimed he had seen the appellant’s girlfriend, Fletcher, arrested outside the courtroom, and he believed he too would be arrested if he departed from his statement. He said he lied at the preliminary inquiry because he was afraid he would be charged if he departed from his video statement.

[22] Sherriff’s evidence on the voir dire was quite different. He testified that Preddie came to the interview wearing sunglasses on a dull winter afternoon and refused to remove them. Preddie was sullen and defiant. Preddie denied he was the person in the video, a statement that was patently absurd. Sherriff said he told Preddie if he persisted in this position in front of the jury, he would be charged with obstruction of justice, perjury and accessory, and the previously withdrawn charges would be re-laid.

[23] Sherriff said he spoke to Preddie’s father, who was present at the interview, hoping that he could induce Preddie to consider the folly of his conduct. After a break in the interview, Preddie and his father returned. Preddie’s attitude had improved and his father thanked Sherriff and said they would follow his advice.

[24] Sherriff claimed that on the morning before Preddie’s testimony he told the appellant’s lawyer that he had no idea what Preddie would say when he testified. Sherriff also said that he told the lawyer the essence of his meeting with Preddie.

[25] The lawyer who represented the appellant at the preliminary inquiry also testified on the voir dire. He said Sherriff did not tell him the details of his meeting with Preddie, particularly the fact that he had told Preddie he would be charged if he denied he was the person in the video. The appellant’s lawyer said that had this information been disclosed, he would have cross-examined Preddie on the details of his meeting with Sherriff. He acknowledged that Sherriff may have said he had no idea what Preddie would say.

[26] The trial judge found Sherriff’s evidence more credible than Preddie’s. He found that Fletcher’s arrest in the hallway of the courthouse took place before Sherriff met with Preddie, and before he knew Preddie would be uncooperative at the preliminary hearing. While the scene was upsetting to Preddie, there was no investigatory misconduct. It was perfectly proper for Sherriff to warn Preddie of the consequences of his proposed denial of the statement. It was Preddie’s self-interest, rather than an atmosphere of oppressive coercion, that led Preddie to try to repudiate his videotaped statement before the preliminary hearing, confirm it on the preliminary hearing, avoid testifying on the first trial, and recant it before the jury on the second trial. This shed little or no light on the issue of threshold reliability. [2]

[27] The trial judge ruled that Preddie’s evidence at the preliminary hearing was admissible pursuant to the principled exception to the hearsay rule. The admission of the evidence did not violate the appellant’s Charter rights. The admission of this evidence forms the basis of this ground of appeal.

[28] The standard of review on an appeal of a ruling on the admissibility of hearsay evidence is correctness: R. v. Duong, 2007 ONCA 68, 84 O.R. (3d) 515, at para. 54. As the respondent notes, however, this analysis is generally fact-specific and deference should be given to the trial judge’s weighing of the factors going to the reliability of the statement. As this court observed in R. v. S.S., 2008 ONCA 140, 232 C.C.C. (3d) 158, at para. 30:

As long as the trial judge addressed the factors germane to the reliability of the hearsay statement, did not fall into any material misapprehension of the evidence relevant to those factors, and made a reasonable assessment of the weight to be assigned to those factors, this court should not redo the weighing process, but should defer to the trial judge's weighing of those factors.

See also: R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252, at para. 112, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 193.

[29] The Supreme Court of Canada has observed that “a witness’s testimony before a preliminary inquiry will generally satisfy this threshold test of reliability since there are sufficient guarantees of trustworthiness”: R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, at para. 76; see also R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787,at para. 91. The preliminary inquiry involves the same issues and the same parties and the hearsay dangers are minimal and primarily concern the inability of the trier of fact to observe the declarant.

[30] In support of his position that the trial judge erred in admitting Preddie’s preliminary inquiry testimony, the appellant raises two sub-issues: (i) whether Preddie’s preliminary inquiry testimony was the product of threats and should have been ruled involuntary; and (ii) whether the reliability of the testimony was undermined by a lack of meaningful cross-examination caused by the Crown’s failure to disclose the details of the meeting between Sherriff and Preddie.

Voluntariness

[31] The appellant argues the trial judge erred in describing the issue as a matter of the court’s residual discretion to exclude the statement due to prosecutorial misconduct. In this regard, the appellant says the trial judge misapprehended the relationship between the confessions rule and the determination of threshold reliability. He collapsed the requirement that the statement be voluntary with the residual discretion to exclude a statement based on investigative or prosecutorial misconduct.

[32] The appellant relies on this court’s decision in R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, in support of his submission that a hearsay statement obtained through threats renders the statement involuntary and therefore inadmissible. He says that Sherriff’s threat of prosecution induced Preddie to testify at the preliminary inquiry in a manner consistent with his police statement and his preliminary hearing evidence should therefore be treated as involuntary and inadmissible.

[33] The respondent’s submission is that the trial judge made an express finding, in his ruling on the KGB application, that the arrest of Fletcher and Sherriff’s warning to Preddie about the consequence of changing his evidence did not amount to inappropriate coercion capable of rendering the preliminary inquiry testimony involuntary.

[34] As well, the respondent notes, the trial judge found that Preddie’s “on-again, off-again” evidence was not due to investigative or prosecutorial misconduct, but rather was due to his own self-interest and had little to do with the threshold reliability of the evidence.

[35] It is important to recognize at the outset that in Hamilton this court stated that it did not read KGB “as laying down a hard and fast rule that all witness statements taken in contravention of the traditional confessions rule must necessarily be rejected as evidence of the truth of their contents” (para. 141).

[36] In Hamilton, after referring to the observations of Lamer C.J. in KGB concerning the confessions rule, this court continued, at para. 144:

In this passage, the Chief Justice is cautioning trial judges not to become mesmerized by the indicia of reliability. When the indicia of reliability are found to exist, normally this will justify the admission of a statement for its truth. But there may be cases where the trial judge is concerned that the indicia of reliability are a façade - and in such circumstances, the voluntariness branch of the confessions rule provides a ready-made guide to assist trial judges in making their threshold reliability determination. For example, if a trial judge were to entertain a real concern that a witness' statement was the product of police coercion and the witness simply told the police "what the police wanted to hear", this would necessarily undermine the veracity of the indicia of reliability and render the proposed statement inadmissible for its truth. In that sense, the residual discretion vested in trial judges may be seen as a safety valve. It ensures that the decision to admit a statement for its truth does not devolve into a merely mechanical exercise.

[37] This court went on to find that the promises and inducements made to the witness did not impact the voluntariness of his statements and that he had spoken willingly to police and “his statements were voluntary and the product of his free will” (para. 147).

[38] In this case, the trial judge referenced the observation of Lamer C.J., at p. 802 of KGB,that:

The trial judge must satisfy him or herself (again, in the majority of cases on the balance of probabilities) on the voir dire that the statement was not the product of coercion of any form, whether it involves threats, promises, excessively leading questions by the investigator or other person in a position of authority, or other forms of investigatory misconduct.

[39] He found there was no investigative misconduct contributing to Preddie’s evidence at the preliminary inquiry. Fletcher’s arrest had not been orchestrated by Sherriff and it was “perfectly proper for Sherriff to warn Preddie of the consequences of his proposed course of action.” The trial judge stated:

Much of the concluding argument of defence counsel dealt with the conduct of police and Crown as contributing to a coercive atmosphere under which [it] is alleged Preddie testified at the preliminary hearing. That argument must fail to the extent that I am unable to find a factual basis for its application. Far from being a “unique set of circumstances” as alleged by defence counsel, I find that Preddie’s conduct in trying to effectively repudiate his videotaped statement before the preliminary hearing; thinking better of it and then confirming it on the preliminary hearing; then absconding from testifying on the first trial to avoid repeating it, apparently; and finally recanting it before the jury on the second trial, speaks only to the witness’s sense of self-interest. It sheds little or no light on the issue of ultimate reliability which is a function of the jury in the trial before me.

[40] The trial judge’s analysis reveals no error. Taken in context, Sherriff’s warning that charges could ensue if Preddie repudiated his police statement was not a coercive threat, as contemplated by the jurisprudence.

[41] In the circumstances, Sherriff’s warning was an appropriate caution that reinforced the solemnity of testifying under oath and allowed Preddie to make an informed decision about his best interests. As the trial judge found, that is exactly what Preddie did as he altered his version of events throughout the proceedings.

[42] I conclude the trial judge did not err in rejecting the appellant’s argument that Sherriff’s warning rendered the statement involuntary.

Disclosure and cross-examination

[43] Second, the appellant says that the failure of Crown counsel at trial to disclose his discussion with Preddie to defence counsel deprived the defence of a fair opportunity to cross-examine Preddie at the preliminary inquiry concerning the circumstances in which his statement had been made.

[44] The appellant also refers to the Crown’s closing which described Preddie’s account of his interview with Sherriff as a “lie”. He says that because Preddie had not been fully cross-examined at the preliminary inquiry concerning his interview with Sherriff, the jury had no way to properly compare his trial evidence with his preliminary inquiry evidence. The absence of contemporaneous cross-examination on the statement undermined the threshold reliability of the preliminary inquiry evidence and the Crown’s closing presented the jury with a distorted view of its weight.

[45] I would not give effect to this submission.

[46] Incomplete contemporaneous cross-examination is a defining reality of hearsay statements. In fact, admissible hearsay statements often have no contemporaneous cross-examination at all.

[47] Preliminary inquiry testimony is an exception to this general observation, as it ordinarily provides some degree of contemporaneous cross-examination that assists the trier of fact in determining ultimate reliability. In addition, preliminary inquiry testimony is given under oath in the presence of the accused and certified by a written transcript. These procedural features enhance its trustworthiness to make it generally admissible, despite being hearsay: Khelawon, at para. 91.

[48] As the respondent notes, it is significant that the trial judge found that defence counsel received sufficient disclosure from Sherriff of his meeting with Preddie – namely, that no one knew what Preddie was going to say. This alerted defence counsel to the possibility that Preddie might depart from his police statement. During cross-examination, defence counsel proceeded to challenge Preddie’s account of the appellant’s confession.

[49] The appellant’s complaint is that the challenge was not complete, as defence counsel was not equipped with more detail about Sherriff’s meeting with Preddie. It is true that, viewed through the lens of hindsight, the cross-examination may not have been comprehensive. However, as stated above, this shortfall is a defining reality of hearsay statements.

[50] The contemporaneous cross-examination that did occur at the preliminary inquiry was sufficient to enhance the trustworthiness of the statement. Moreover, unlike cases where preliminary inquiry testimony is admitted under the statutory exception in s. 715 of the Criminal Code, the declarant was available at trial. The additional detail about the meeting between Sherriff and Preddie was subject to cross-examination at trial and the jury could use this information to assess the ultimate reliability of the statement.

[51] The trial judge identified the correct legal test, weighed the relevant factors and concluded that the jury would have an adequate basis on which to evaluate Preddie’s evidence in its entirety. This conclusion is entitled to deference and is consistent with the Supreme Court’s observation about the general admissibility of preliminary inquiry testimony. In my view, there is no basis for appellate interference.

[52] I also reject the submission that Crown counsel’s closing, in which he described Preddie’s attempt to recant his previous statement as a lie, somehow left the jury with a distorted impression of Preddie’s evidence as a recent fabrication. While not determinative, it is important to note that defence counsel did not object or seek a corrective instruction in response to the Crown’s closing submissions on Preddie’s evidence: R. v. Daly (1992), 57 O.A.C. 70 (C.A.), at p. 76.

[53] More important, the defence presented its own position on the veracity of Preddie’s preliminary inquiry and trial testimony, which was repeated by the trial judge in his charge. There is no basis to conclude the jury was left with a distorted impression of the evidence. This ground of appeal fails.

(b) Collusion

[54] The second issue concerns the trial judge’s charge on collusion. For the following reasons, I am satisfied that the trial judge’s charge on this issue did not give rise to a reversible legal error.

[55] This issue must be addressed in context and by looking at the charge as a whole. Much of the trial and the trial judge’s jury instructions, were consumed by the evidence of the three associates – Dhillon, Watson and Preddie. There was so much lying, recanting, backtracking and obfuscating in their testimony that the challenge for the jury was to determine when, if at all, they had been speaking the truth.

[56] There was little actual evidence of collusion. Dhillon and Preddie admitted they had discussed the police investigation with each other and with Watson before giving their statements on April 27, 2004. However, Dhillon said he did not recall discussing with the other two what they should say to the police. Both Dhillon and Preddie agreed there was no plan to make up the appellant’s confession.

[57] Watson was clearly angry at the appellant for setting them up to be robbed at the gun purchase. Initially, when confronted on cross-examination with the suggestion that the three had agreed to falsely implicate the appellant in the shooting, he replied “I don’t remember having that conversation. We were just upset about what he did”. Later in cross-examination, however, he conceded to defence counsel that he did collude with Dhillon and Preddie to make up the appellant’s confession.

[58] Defence counsel described Preddie, Dhillon and Watson as “unsavoury, dishonest witnesses”, who had colluded to falsely implicate the appellant in the shooting as payback for setting them up for the robbery. He told the jury that if they found there was collusion among them, or if they had any doubt that there was collusion, they could not find the appellant had confessed to killing someone. The Crown, on the other hand, argued that the trial evidence of Dhillon (who did not recant) and the preliminary inquiry evidence of Preddie (who did recant at trial) could be used for corroboration.

[59] The trial judge reviewed for the jury, in detail and at length, the evidence of Watson, Preddie and Dhillon with respect to the car ride, including the different accounts of those events that each had given at various times.

[60] The trial judge instructed the jury that if they found the confession evidence was the product of collusion, they could not use it for any purpose, including for the purpose of confirming the evidence of other witnesses. His instructions included the following:

If you accept that a witness has colluded with another you may however consider that when assessing the credibility of the witness who testifies, respecting collusion, as well as the credibility of the witness with whom you find the testifying witness has colluded.

[61] In giving a Vetrovec instruction, the trial judge stated:

If you accept that some of the people in the car ride to get guns, that resulted in a robbery, colluded, that is that they agreed to make false allegations against the defendant concerning comments he made or did not make in the car, then to the extent that you find that evidence is the product of collusion, you should reject using that evidence for any purpose, including for confirmation purposes.

It will ultimately be for you to determine whether evidence of any unsavoury witness is a product of collusion and therefore not to be used to support the evidence of another unsavoury witness.

[62] The defence did not object to the proposed instruction in the pre-charge discussions. Nor did it do so after the charge.

[63] In this court, the appellant contends the trial judge’s instruction did not explain the requirement that corroborative evidence must be independent and that it cannot be independent if it is the product of collusion.

[64] The appellant also contends that the instruction had the effect of shifting the burden of persuasion to the defence. He says the trial judge improperly limited the significance of the evidence of collusion by requiring the jury to make a positive finding of fabrication before it could negate the value of the confession evidence. This, he says, imposed a two-stage fact finding process and placed a burden on the defence to establish fabrication. He says the jury should have been instructed that unless they were satisfied that there was no collusion, they were not to use the evidence of Dhillon or Preddie for confirmation.

[65] The respondent submits that on this record the distinction is one without a difference. The issue of collusion was squarely before the jury and it was neither a difficult nor a complex matter for them to resolve based on their assessment of the evidence of the three passengers in the car. It was clear to the jury that if the evidence disclosed collusion, the testimony of the Vetrovec witnesses could not be used at all.

[66] The respondent submits the jury would have clearly understood that the existence of collusion would negate the evidentiary value of the testimony of Dhillon and Preddie. There was no realistic possibility that the jury would have disregarded the requirement that corroborative evidence must be independent.

[67] At the same time, the respondent does acknowledge that the instruction proposed by the appellant is technically correct. I agree, but that is not the test.

[68] This is a case like R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, where the Supreme Court concluded, at para. 56, “the substance of a proper Vetrovec caution was communicated adequately, albeit imperfectly, to the jurors.” The Supreme Court has recognized that technical imperfection does not make the charge “so deficient as to constitute an error of law”: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 44. This is such a case and I would not give effect to this ground of appeal.

[69] Taken in isolation, the instruction could have left the jury with the impression that they had to make a positive finding of collusion before they used the evidence of collusion for any purpose. However, a broader approach to the charge is necessary. As stated by this court in R. v. Winmill (1999), 1999 CanLII 1353 (ON CA), 42 O.R. (3d) 582 (C.A.),at p. 603:

The sufficiency of the Vetrovec caution cannot reasonably be assessed by an isolated review of that part of the charge that one can identify as the “Vetrovec warning”. That is to say, the charge must be read as a whole.

[70] This court went on to say, at p. 608:

[I]t is for the jury to determine whether the evidence of one unsavoury witness can provide support for the evidence of another. If there are circumstances such as collaboration among the Vetrovec witnesses, the jury should be alerted to that fact which will obviously militate against using the evidence of one unsavoury witness to support the evidence of another. It is for the jury to determine whether an untrustworthy witness's evidence is so compromised by collaboration that it could not reasonably be used to support the evidence of another untrustworthy witness. The final credibility call is, I emphasize, for the jury.

[71] In addition, in R. v. Parris, 2013 ONCA 515, 300 C.C.C. (3d) 41, at para. 91, this court recognized that “deficiencies or shortcomings in the Vetrovec caution itself may be compensated for in other portions of the final instructions that must be read as a whole”. Considering the instructions as a whole, the jury was not misdirected as to the use they could make of the evidence. On the contrary, they were well-equipped for the task.

[72] The trial judge’s careful and thorough charge canvassed the evidence of each witness concerning the defence theory of collusion. Not surprisingly, given the three witnesses who had each been questioned on several occasions, there were inconsistencies and omissions between accounts given by the same witnesses and among the various witnesses. Many of the inconsistencies were identified by the trial judge and by defence counsel.

[73] After a very lengthy trial, the addresses of counsel and the judge’s charge, which spanned four days, the jury had a thorough understanding of the role of the “confession” evidence in the context of all the evidence, direct and circumstantial, bearing on the issue of identity. It would have been quite obvious to the jury that the three confession witnesses had given different stories on various occasions, had lied and had motives to lie, whether for personal advantage, self-protection or revenge. It would also have been very clear to the jury that if they had a reasonable doubt on the issue of identity they were bound to acquit and that the reasonable doubt must arise after consideration of all the evidence. As a result, the trial judge committed no reversible error and this ground of appeal fails.

(c) Mistrial

[74] The third issue concerns the trial judge’s response to Boysie Murray’s refusal to answer further questions in the midst of the Crown’s examination-in-chief. The trial judge dismissed a defence motion for a mistrial, but ordered that Murray’s testimony be struck. The appellant submits the trial judge erred in dismissing the defence mistrial motion.

[75] Murray claimed he was involved with the appellant in the robbery of Dhillon and Preddie during the aborted gun purchase. He had been arrested by police and gave a videotaped statement in which he said the appellant had confessed the killing to him.

[76] At trial, Murray not only denied having been involved in the robbery, he denied the appellant had told him anything about a homicide. He did admit that he had seen a “bump” on the appellant’s arm and said the appellant had told him he shot himself.

[77] Murray’s evidence was interrupted to permit the Crown to bring an application under s. 9(2) of the Canada Evidence Act, R.S.C., 1985, c. C-5, and a KGB application.

[78] On the voir dire concerning his video statement, Murray said that he made up the confession in order to get out of jail. The trial judge ruled the Crown could not introduce his statement about the appellant’s confession. He was, however, prepared to permit the Crown to introduce another part of the statement, in which Murray claimed he had seen the appellant with a gun.

[79] The continuation of Murray’s examination was delayed because he had been charged with murder in an unrelated matter. When he appeared six months later, he admitted he was involved in the gun purchase robbery. He also admitted having seen a “welt” on the appellant’s arm, but he denied the appellant had said he shot himself. This resulted in another s. 9(2) application, which was granted. When Murray next appeared at the trial, he refused to testify and was cited for contempt.

[80] The appellant’s counsel at trial argued that a mistrial should have been granted for three reasons. First, the jury might find the appellant guilty by association with Murray, whom he described as a “very bad man”. Second, the jury might infer from Murray’s silence that he was attempting to help the appellant. Third, some of the Crown’s unanswered questions to Murray might lead the jury to conclude that the appellant had confessed to Murray and that Murray was being silent in order to avoid responding.

[81] The trial judge dismissed the application. He noted that the little evidence that Murray had given to that point was largely uncontroversial and he had already retracted his evidence that the appellant had claimed to have shot himself. He pointed out that the jury would be instructed that questions to a witness are not evidence unless the witness adopts them. They would also be given a Vetrovec warning. After considering R. v. Duong, 2007 ONCA 68, 84 O.R. (3d) 515, the trial judge concluded that this was not one of the “clearest of cases” in which a mistrial should be granted. He also found, referring to R. v. Cameron (2006), 2006 CanLII 16078 (ON CA), 208 C.C.C. (3d) 481 (Ont. C.A.) and R. v. Hart, 1999 NSCA 45, 174 N.S.R. (2d) 165, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 109, that it would be premature to grant a mistrial, unless it was determined that there was no possibility of remedial or ameliorative action to neutralize any unfairness arising from the inability of defence counsel to cross-examine Murray on his evidence to that point.

[82] The trial judge concluded that the trial had not been rendered irretrievably unfair and invited counsel to address the issue of what action would be required in the circumstances to ensure a fair trial.

[83] After hearing further submissions, the trial judge granted a defence application to “strike” Murray’s evidence in its entirety and dismissed a Crown application to admit other portions of Murray’s evidence pursuant to KGB.

[84] When the trial resumed, the trial judge gave a mid-trial instruction to the jury in which he instructed them to:

[D]isregard [Murray’s] evidence before you in its entirety. Do not use it for any purpose whatsoever. … [H]is refusal to continue testifying requires me to tell you, as I just did, that you are to disregard his evidence in its entirety and treat it as though he had never appeared to testify before you in the first place. I anticipate that you should have no difficulty in doing this because his evidence was relatively brief despite his number of appearances before you.

[85] The trial judge pointed out that due to Murray’s refusal to answer questions the jury must not only disregard everything he said, but also must not speculate about what else he might have said under further examination and that no responsibility should attach to either the Crown or the defence for Murray’s failure to testify. He continued:

In summary, therefore, you must disregard Murray’s evidence in its entirety for all purposes. You must not speculate about what else he might have said. You must not draw any adverse inference against either side because of Murray’s refusal to continue testifying, and finally, whatever association Murray and Mullings may have had, neither the association nor Murray’s refusal to testify provides any basis to draw any inference adverse to the defendant.

[86] In his final instructions, the trial judge reminded the jury that they were to disregard Murray’s testimony entirely and to treat it “as though he never testified.” He also reminded them that they were not to draw any inferences against either side from his conduct, nor make any negative inference against the appellant as a result of his relationship with Murray.

[87] There was no objection to these instructions.

[88] The decision to grant or refuse a mistrial is quintessentially a matter of judicial discretion and it is only in the “clearest of cases” that an appellate court should intervene: R. v. Rollocks (1994), 1994 CanLII 8728 (ON CA), 19 O.R. (3d) 448 (C.A.), at p. 452. This is because a trial judge is uniquely positioned to read the barometer of the case and to determine the impact, if any, of the evidence and to assess what remedial measures, if any, short of a mistrial will suffice to remove the impact of that evidence from the jury: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 36; R. v. Liu (2004), 2004 CanLII 34061 (ON CA), 190 C.C.C. (3d) 233 (Ont. C.A.), at para. 24; R. v. Chiasson, 2009 ONCA 789, [2009] O.J. No. 4682, at para. 19.

[89] Appellate intervention will be appropriate, for example, where the court is satisfied that no limiting instruction could effectively remove the evidence from the jury’s consideration: Rollocks,at p. 452.

[90] Here, the trial judge had the perspective of seeing the evidence evolve over the course of this lengthy trial and he had observed the jury as they listened to and followed the evidence. He was aware not only of what evidence the jury had heard, but what they had not heard. He was fully aware, for example, that the jury had not heard any evidence from Murray that the appellant had confessed to him and they had never seen or heard his statement to the police. At the end of the day, he not only struck Murray’s evidence, he told the jury in no uncertain terms they were to ignore it.

[91] I am unable to find that the trial judge erred in the exercise of his discretion in dismissing the motion for a mistrial and I would reject this ground of appeal.

(d) First Degree Murder

[92] The appellant asserts that the verdict of first degree murder was unreasonable and should be set aside pursuant to s. 686(1)(a)(i) of the Criminal Code. The application of that provision requires this court to determine whether “the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered”: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36.

[93] The jury was properly instructed that the only way in which they could arrive at a verdict of first degree murder was under s. 231(5)(e) of the Criminal Code, which provides:

231. (1) Murder is first degree murder or second degree murder.

(2) Murder is first degree murder when it is planned and deliberate.

(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:

(e) section 279 (kidnapping and forcible confinement)

[94] In R. v. Harbottle, 1993 CanLII 71 (SCC), [1993] 3 S.C.R. 306, the Supreme Court stated, at p. 325, that the Crown must establish the following requirements of s. 231(5)(e) [then s. 214(5)] beyond a reasonable doubt:

(1) the accused was guilty of the underlying crime of domination or of attempting to commit that crime;

(2) the accused was guilty of the murder of the victim;

(3) the accused participated in the murder in such a manner that he was a substantial cause of the death of the victim;

(4) there was no intervening act of another which resulted in the accused no longer being substantially connected to the death of the victim; and

(5) the crimes of domination and murder were part of the same transaction; that is to say, the death was caused while committing the offence of domination as part of the same series of events.

[95] To unlawfully confine someone is to restrain or direct them contrary to their wishes: R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24.

[96] In R. v. Kimberley (2001), 2001 CanLII 24120 (ON CA), 56 O.R. (3d) 18 (C.A.), this court observed, at para. 108, that “a confinement which is inherent in the very act of killing could not be relied upon to impose liability under s. 231(5)(e).” It explained that:

This is not because there is no confinement, but because s. 231(5)(e) requires two discrete criminal acts, a killing that amounts to murder and a confinement that is unlawful. It is the occurrence of the two criminal acts in the course of the same transaction or series of events that justifies the added punishment imposed for first-degree murder.

[97] In Harbottle, the Supreme Court observed, at p. 323, that s. 231(5) is a sentencing provision, and “the gravity of the crime and the severity of the sentence both indicate that a substantial and high degree of blameworthiness, above and beyond that of murder, must be established in order to convict an accused of first degree murder” (emphasis in original). In Kimberley, this court held at para. 104:

The organizing principle of s. 231(5) is the recognition that murders committed in the course of the unlawful domination of the victim are particularly blameworthy, and those who commit such murders are deserving of the greater punishment imposed for first-degree murder.

[98] The appellant’s submissions, as they were developed before us, rest on two propositions. First, he submits that for s. 231(5)(e) to apply, the confinement must be distinct from the killing and not consumed in the killing. The confinement and the killing must constitute distinct criminal acts: Pritchard, at para. 27; Kimberley, at para. 108. Here, he submits that the confinement was inherent in the killing.

[99] Second, he raises the issue of whether the victim’s death was caused while committing unlawful confinement or whether the unlawful confinement was subsequent to the causing of death. He says the victim’s death was caused by the first shot, which penetrated the victim’s arm and his heart, mortally wounding him. The confinement, he says, occurred after this took place.

[100] I would not give effect to this ground of appeal. I will address the causation argument first.

[101] Whether the first bullet was a sufficient cause of the victim’s death was unimportant in this case for three reasons. First, s. 226 of the Criminal Code makes clear that accelerating death is still murder. In this case, regardless of whether the victim was mortally wounded by the first shot, he was still alive when he was shot a second time while confined in the garage. Therefore, it was open to the jury to conclude that the second shot’s acceleration of death was an act of killing in itself, which occurred while the appellant was confining the victim. In R. v. Munro (1983), 1983 CanLII 3542 (ON CA), 8 C.C.C. (3d) 260 (Ont. C.A.), at pp. 288-9, this court said it was an “elementary principle of the law of homicide” that “one who shortens the life of a person suffering from a mortal injury … has caused the death of that person.”

[102] Second, there is nothing in the jurisprudence that states the predicate offence under s. 231(5) must precede the mortal wound. In fact, in the context of sexual assault under s. 231(5)(b), the jurisprudence of this court and others supports the proposition that it does not matter whether the sexual assault occurs before or after the death of the victim, provided the sexual assault and murder are part of one continuous sequence of events forming a single transaction: R. v. Westergard (2004), 2004 CanLII 16356 (ON CA), 70 O.R. (3d) 382 (C.A.), at paras. 31-35, leave to S.C.C. refused, [2004] S.C.C.A. No. 521; R. v. Ganton (1992), 1992 CanLII 8246 (SK CA), 77 C.C.C. (3d) 259 (Sask. C.A.). It is not necessary in this appeal to decide whether that same proposition holds true for unlawful confinement under s. 231(5)(e). However, when applying s. 231(5) for any predicate offence, courts should avoid a formalistic and technical analysis of the precise sequence of the killing and the predicate offence where they are closely intertwined. What matters is that the act of killing and the predicate offence, while distinct offences, remain part of the same transaction: R. v. Paré, 1987 CanLII 1 (SCC), [1987] 2 S.C.R. 618, at pp. 631-633.

[103] Third, s. 231(5) is concerned with identifying the degree of blameworthiness required to ground a conviction for first degree murder. Apart from the obvious point that the appellant could have had no way of knowing that he had fatally wounded the victim, the confinement and shooting inside the garage removed any possibility of getting assistance for the victim. This is a case like R. v. Simon (2001), 2001 CanLII 11996 (QC CA), 154 C.C.C. (3d) 562 (Que. C.A.), in which it can be said that, even if the wound to the chest was the ultimate cause of death, the subsequent restraint of the victim and the direct shot to his chest prevented any possibility of medical intervention which might have saved his life, however remote that possibility may have been.

[104] I will now consider the appellant’s submission concerning whether the killing and confinement were distinct. In my view, it was open to the jury to conclude they were.

[105] The trial judge properly instructed the jury on the law relating to s. 231(5)(e)and carefully reviewed the evidence bearing on the issues the jury was required to resolve in order to convict under that provision. There was eyewitness and forensic evidence upon which the jury could have concluded the appellant caused the victim’s death and he unlawfully confined the victim during the same series of events as the shooting. This included evidence from which the jury could have concluded that, after the appellant shot himself and the victim during the struggle in the driveway, the victim was forcibly removed from that location to the inside of the garage where he was held, on his knees, calling for help, until he was again shot, this time point blank in the chest. It was open to the jury to find that in forcibly removing the victim from the driveway to the garage and restraining him there, the appellant committed the crime of unlawful confinement.

[106] It was also open to the jury to find that while the confinement occurred as part of the same series of events as the murder, it was not inherent in the killing and that the appellant could have been convicted of the separate offences of murder and unlawful confinement.

[107] This is not a case, such as that described by Binnie J. inPritchard, at para. 27, in which the act of confinement and the act of killing are one and the same. Here, it was open to the jury to find that the murder was committed in the course of an unlawful confinement and that the murder and the confinement were distinct crimes that took place during an uninterrupted series of events.

[108] In conclusion, there was evidence from which the jury could have concluded that the murder of Bogdan Spolski was an execution, carried out while he was being restrained by the appellant against his will. As such, it has the requisite degree of blameworthiness to attract the punishment for first degree murder.

[109] Based on the foregoing discussion, I conclude the verdict was not unreasonable and it was open to the jury to convict the appellant of first degree murder.

Disposition

[110] For these reasons, I would dismiss the appeal.

“G.R. Strathy C.J.O.”

“I agree K. Feldman J.A.”

“I agree David Watt J.A.”

Released: December 16, 2014

[1] Preddie and Watson both said the appellant described the shooting as having occurred in the course of a car theft. Dhillon did not mention this detail. Their accounts of the confession were otherwise consistent in substance.

[2] Although the trial judge used the term “ultimate reliability”, it is clear from the context that he was speaking of threshold reliability.