WARNING
THIS IS AN APPEAL UNDER THE
AND IS SUBJECT TO:
(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. K.C., 2015 ONCA 39
DATE: 20150126
DOCKET: C56733
Doherty, Gillese and Lauwers JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
K.C. and J.B.
Respondents
Alison Wheeler, for the appellant
Timothy E. Breen, for the respondent, K.C.
Delmar Doucette and Adam Boni, for the respondent, J.B.
Heard: December 17, 2014
On appeal from the acquittals entered on February 8, 2013 by Justice John B. McMahon of the Superior Court of Justice, sitting with a jury.
Doherty J.A.:
I
overview
[1] The respondents, K.C. and J.B., were charged with first degree murder. Both were “young persons” as defined in the Youth Criminal Justice Act, S.C. 2002, c. 1 and the trial proceeded accordingly. The jury acquitted both respondents.
[2] The Crown advances one ground on appeal. The Crown argues that the trial judge improperly excluded potentially important evidence. The excluded evidence has two parts. First, the Crown sought to lead evidence that the respondent, J.B., and Neil Armstrong, the murder victim, participated on opposite sides of a brief group fight about 11 months before the murder while both were incarcerated at the Toronto Youth Assessment Centre (“TYAC”). Second, the Crown tendered evidence that K.C., J.B. and Armstrong were housed in the same section in TYAC for a few days shortly after the fight between J.B. and Armstrong. The substance of the evidence was never seriously challenged and eventually became the subject of an agreed statement of fact.
[3] The Crown alleged that the evidence was relevant to motive. The Crown contended that enduring animosity between two groups led to the murder. That animosity grew out of altercations between the two groups at TYAC. The Crown also contended that the evidence could confirm parts of the testimony of the central Crown witness, Cleavon Springer, an accomplice and admitted serial liar.
[4] The defence maintained that the evidence was not probative of motive or confirmatory of any material part of Springer’s testimony. The defence argued that even if the evidence had some modest probative value, its obvious potential to significantly prejudice the accused far outweighed any probative value.
[5] There were two trials. In both, the Crown relied on Springer’s preliminary inquiry evidence to provide the necessary context to determine admissibility. At the first trial, the evidence was ruled admissible on a pre-trial motion. The trial judge subsequently declared a mistrial for unrelated reasons before Springer testified. At the second trial, again on a pre-trial motion, the trial judge confirmed the admissibility of the evidence again relying on Springer’s preliminary inquiry evidence.
[6] Springer’s trial evidence differed in some ways from his preliminary inquiry testimony. Relying on those differences, defence counsel asked the trial judge to revisit the evidentiary ruling. The trial judge reconsidered the ruling and excluded the evidence from TYAC save for evidence that K.C. had been an inmate at TYAC for a relatively short period.
[7] Crown counsel on appeal contends that the earlier rulings were correct and that any differences between Springer’s preliminary inquiry evidence and his trial testimony did not warrant the exclusion of the evidence. She further submits that the excluded evidence was particularly important to the Crown because it could confirm a material part of Springer’s evidence. His evidence was crucial to the Crown and badly in need of independent confirmation.
[8] For the reasons that follow, I would dismiss the appeal.
II
BACKGROUND
[9] On July 16, 2003, Neil Armstrong was shot dead on Richmond Street in Toronto, near a nightclub known as Inside. The respondents were arrested after Cleavon Springer, who had been arrested on serious unrelated charges, gave a statement to the police in 2009 identifying K.C. as the shooter and J.B. as an aider in Armstrong’s murder. According to Springer, he had also aided in the murder. Springer’s 2009 statement provided the basis for prosecution.
[10] Springer had told the police a very different story in 2006. In his 2006 version of events, Springer implied that J.B. was the shooter. In his trial testimony, he admitted that he concocted his 2006 testimony to protect himself and his friends from prosecution.
[11] At trial, Springer testified he was with a friend on July 15, 2003 when the friend received a phone call. As a result of the call, Springer and his friend loaded their 9mm semi-automatic handguns and drove downtown. They met K.C. and others, including J.B., in a parking lot near the Inside nightclub. K.C. was a friend of Springer’s. Springer knew J.B. but did not consider him a friend.
[12] Springer testified that he and K.C. spoke in the car. J.B. and others were milling around in the parking lot near the vehicle.
[13] K.C. told Springer that he had a brief altercation in the nightclub with two individuals he called Pentime and Poochi. According to K.C., the altercation in the nightclub was a continuation of “bad blood” between himself and a group that included Pentime and Poochi. The “bad blood” had begun when K.C., Pentime and Poochi were incarcerated together at TYAC.
[14] K.C. did not say anything during his discussion with Springer about Armstrong and specifically did not suggest that Armstrong was involved either in the prior “bad blood” at TYAC or in the altercation in the nightclub.
[15] Springer testified that after he spoke with K.C. in the vehicle, they both left the vehicle and spoke with the group in the parking lot. That group included J.B. K.C. made it clear that when the group with whom he had argued left the nightclub he wanted to confront them. He asked Springer for his handgun, explaining that his was not reliable. Springer testified that he gave his loaded handgun to K.C.
[16] Springer testified that based on K.C.’s statements in the parking lot, he understood that K.C.’s group would confront the other group when it left the nightclub. Springer anticipated gunfire, as he knew that K.C. was armed and believed that persons in the other group would also be armed.
[17] A group of young men including Armstrong eventually left the nightclub and stood on Richmond Street. That group split into two. The part of the group that included Armstrong walked into the street. Springer testified that K.C. and his group, which included J.B., approached the part of the group that had walked into the street. K.C. held the gun Springer had given him beside his leg.
[18] There were at least two different versions of what happened when the two groups confronted each other. According to Springer’s testimony, K.C. said something to the group that included Armstrong and the group fled. K.C., J.B. and Springer gave chase. Springer testified that J.B. caught and tripped Armstrong. As Armstrong struggled to regain his feet, K.C. ran up to him and fired a single shot, striking and killing him.
[19] Springer testified that he met K.C. about a week later in Markham, Ontario. K.C. returned Springer’s handgun. He told Springer that the wrong person had been shot and that Armstrong, unlike Pentime and Poochi, was not seen as a threat to K.C. and his group. K.C. told Springer that Armstrong, Pentime and Poochi “hung together” and were from the same area. K.C. had met Armstrong before, but did not say where he had met him.
[20] Springer testified that K.C. also repeated the story about prior altercations with Pentime and Poochi at TYAC and the “bad blood” between his group and the group headed by Pentime and Poochi. Crown counsel asked Springer whether K.C. said anything about Armstrong in connection with these prior altercations at TYAC. Springer replied:
It was possible that there was also altercations with him [Armstrong], but he never really played a major role in the disagreement between the two groups.
[21] Springer’s answer is not easy to understand. He appears to speculate about what K.C. may have said about Armstrong. The Crown did not ask any follow-up questions.
[22] Springer’s evidence was crucial to the Crown’s case. If the jury did not believe Springer’s evidence, the Crown did not have a case against either K.C. or J.B. Springer’s credibility was suspect for many reasons, not the least of which was his admitted role in a murder for which he entirely escaped prosecution. He was, by any definition, an unsavoury witness worthy of the strongest Vetrovec warning.
[23] Springer’s evidence also conflicted in some respects with unchallenged physical evidence. For example, Springer described the person shot by K.C. as wearing a white t-shirt. Armstrong was dressed in dark clothing, including a black hoodie. Another person who was shot and wounded during the same melee but at a different place on the street was wearing a white t-shirt. Based on Springer’s evidence about the colour of the clothing and other details of the shooting, the defence argued that Springer was actually describing the shooting of that other person and not Armstrong.
III
THE EXCLUDED CROWN EVIDENCE
[24] The Crown sought to lead evidence of a fight between two groups of inmates in a dormitory at TYAC. The fight took place on August 20, 2002, 11 months before the murder, and lasted less than 30 seconds. One group included Armstrong and the other included J.B. There was no evidence that K.C., Pentime or Poochi were involved in, present at, or aware of the fight. There was also no evidence on the cause of the fight or any subsequent interaction between J.B. and Armstrong.
[25] The Crown also sought to lead evidence that K.C., J.B. and Armstrong were all housed in the same section of TYAC between August 28 and September 2, 2002. Armstrong and J.B. remained in that section until September 5. The evidence did not refer to any interaction among the three during this period.
[26] At trial, the Crown offered the evidence primarily as capable of confirming Springer’s testimony that K.C. told him the murder stemmed from “bad blood” between K.C.’s group and the Pentime/Poochi group. That “bad blood”, according to K.C., began with altercations between the two groups at TYAC.
IV
THE TRIAL RULINGS
[27] As indicated above, the admissibility of the “bad blood” evidence was considered on three separate occasions at the trial level. On the first occasion, Nordheimer J., relying on Springer’s preliminary inquiry testimony, held that the evidence was admissible: R. v. K.C. and J.B., 2012 ONSC 5164. In his preliminary inquiry evidence, Springer had testified that K.C. had told him that Armstrong was “a part of the group … inside the club who [K.C.] had the altercation with”. Springer had also testified that K.C. “categorized” Armstrong with the people with whom he had “bad blood” from TYAC.
[28] In ruling the evidence admissible, Nordheimer J. said, at para. 14-15:
There may be a qualitative difference in the minds of the jury between the suggestion that this murder occurred as the result of a single confrontation between the accused and the deceased and their respective associates in a club and the suggestion that this murder occurred as the result of a simmering animosity between the individuals involved and their associates.
If the jury is not provided with the evidence regarding the prior involvement between the deceased’s group and the accused’s group, they will be left with only a partial picture of the background between these individuals. That might, in turn, lead the jury to wonder whether a single confrontation in a club would be sufficient reason for K.C. and J.B. to want to cause harm to the deceased. [Emphasis added.]
[29] Nordheimer J.’s ruling was premised on the evidence of Springer that K.C. identified Armstrong as part of the altercation in the nightclub. Because Springer’s testimony connected Armstrong to the Pentime/Poochi group and therefore to the altercations in TYAC, the evidence was probative of the “bad blood” motive. For the same reason, the evidence offered some independent confirmation of Springer’s testimony that K.C. gave “bad blood” as the motive for the confrontation outside of the nightclub.
[30] McMahon J. presided over the second trial after Nordheimer J. declared a mistrial. The defence asked McMahon J. to reconsider the ruling made by Nordheimer J. pursuant to s. 653.1 of the Criminal Code. The defence relied on the same evidentiary record (Springer’s preliminary inquiry testimony) but argued that Nordheimer J. had misapprehended relevant evidence.
[31] McMahon J. concluded that notwithstanding some misapprehension of the evidentiary record by Nordheimer J., the evidence was admissible. McMahon J., like Nordheimer J., thought the evidence could support the “bad blood” motive and help confirm Springer’s evidence that K.C. attributed the confrontation outside the nightclub to that “bad blood”.
[32] The trial proceeded and Springer testified. His trial evidence differed from his preliminary inquiry testimony in at least two important respects. First, Springer did not testify that K.C. told him that Armstrong was involved in the altercation in the nightclub. According to Springer’s recollection at trial, K.C. said nothing about Armstrong’s involvement in the altercation in the nightclub or with the group that was involved in the altercation. Second, Springer testified at trial that when he spoke with K.C. after the murder, K.C. did not suggest that Armstrong had been involved in the altercations at TYAC, but instead told Springer that Armstrong “hung together” with Poochi and Pentime and that the three men were from the same neighbourhood. K.C. also told Springer that he knew Armstrong but did not say how he came to know him.
[33] McMahon J., at the defence request, reconsidered his ruling in light of the changes in Springer’s testimony. He excluded all of the evidence except for evidence that K.C. had been incarcerated at TYAC for about two weeks 11 months before the murder. McMahon J. admitted evidence of K.C.’s incarceration at TYAC because, in his view, it could confirm to some extent Springer’s testimony that K.C. told him the murder arose from a feud that began when K.C. was incarcerated at TYAC.
[34] In his ruling excluding the rest of the evidence, McMahon J. addressed the admissibility of the evidence separately as against each accused. With respect to J.B., he held that evidence of the fight involving J.B. and Armstrong “may have some probative value” as demonstrating J.B.’s animus toward Armstrong. McMahon J. went on, however, to hold that the risk of prejudice to J.B. outweighed any potential probative value. The risk of prejudice flowed from the possibility that the jury might consider the evidence of the fight in combination with K.C.’s statements that the murder originated in “bad blood” from TYAC. Those statements were not admissible against J.B. The trial judge explained the prejudice to J.B. in these terms:
The jury would have [J.B.] involved in a minor altercation at TYAC, which would be relevant and admissible against [J.B.], but they would then hear [K.C.’s] statement that the bad blood goes back to altercations at TYAC with Pentime and Poochi. The jury would have to be instructed on the subtle differences on what evidence could be used against [J.B.] and what evidence could be used against [K.C.]. The risk of the jury linking [K.C.’s] statement to [J.B.], though it would be inadmissible, would be great in the circumstances. As such, the prejudice to [J.B.] in that link would be extremely prejudicial to him, and I am not satisfied it could be overcome through a limiting instruction.
[35] The trial judge next considered the admissibility of the evidence as against K.C. He held that absent any evidence linking Armstrong to the “bad blood” between K.C.’s group and the Pentime/Poochi group, the evidence of the fight at TYAC between J.B. and Armstrong was inadmissible against K.C. and could not confirm any part of Springer’s testimony as against K.C.
V
THE ARGUMENTS ON APPEAL
[36] The admissibility of evidence is a question of law. If the admissibility turns on weighing probative value against prejudicial effect, however, appeal courts will defer to the trial judge’s assessment as long as it is reasonable, free of identifiable errors in principle and not based on any material evidentiary errors: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 73; R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 58.
[37] Crown counsel on appeal has raised essentially three arguments.
a) The trial judge failed to appreciate the relevance of the evidence to the Crown’s “bad blood” motive. That failure flowed from the trial judge’s misunderstanding of relevant parts of Springer’s trial testimony.
b) The trial judge erred by failing to hold that even if the evidence could not support the “bad blood” motive, it was admissible as evidence of a prior relationship between Armstrong, K.C. and J.B.
c) The trial judge overemphasized the potential prejudice to J.B. should the evidence of his altercation with Armstrong be admitted, and failed to give adequate weight to measures that could ameliorate any potential prejudice to J.B.
(a) Did the trial judge fail to properly consider the relevant evidence?
[38] Crown counsel argues that the trial judge did not appreciate the significance of the evidence to the “bad blood” motive because the trial judge failed to consider a relevant part of Springer’s testimony and misapprehended two other parts of his testimony. Counsel contends that on a proper understanding of Springer’s testimony, the evidence is admissible as part of the circumstantial picture supporting the “bad blood” motive and, more importantly, as independent evidence offering some confirmation of Springer’s testimony on K.C.’s statements about “bad blood”.
[39] I will begin with the alleged failure to consider relevant evidence. Counsel submits that the trial judge’s failure to mention Springer’s testimony that K.C. told him that Armstrong “hung together” with Pentime and Poochi indicates that the trial judge failed to consider that evidence. The failure to mention evidence can indicate a failure to consider it. Yet sometimes, perhaps most times, the failure to mention evidence is simply a reflection of the evidence’s minimal significance to the issue at hand.
[40] Evidence that Pentime and Poochi “hung together” with Armstrong did show some kind of association among the three. It could not, however, place Armstrong within the Pentime/Poochi group at TYAC or in the nightclub. The trial judge’s failure to allude to the evidence that Armstrong “hung together” with Pentime and Poochi tells me that the trial judge did not think the evidence capable of linking Armstrong to the Pentime/Poochi group. I cannot disagree with that assessment.
[41] Crown counsel next points to two alleged misapprehensions of evidence. First, she submits that the trial judge indicated that Springer testified K.C. told him the altercation in the nightclub involved K.C. on one side and Pentime and Poochi on the other side. Crown counsel says that, in fact, according to Springer, K.C. referred to the other group as including Pentime and Poochi.
[42] I see no material difference between the evidence as summarized by the trial judge and as described by Crown counsel. What mattered for the purposes of the admissibility inquiry was the absence in Springer’s trial testimony of anything connecting Armstrong to the altercation in the nightclub or to the group involved in the altercation. The actual constitution of that group, and specifically whether it included unnamed persons other than Pentime and Poochi, was irrelevant to the ability of the evidence to support the Crown’s “bad blood” motive.
[43] The second alleged misapprehension relates to Springer’s testimony about any connection K.C. may have said Armstrong had to the prior altercations at TYAC. Springer’s entire evidence on this issue consists of the single answer set out above (see para. 20). Crown counsel submits that this answer, despite containing “an element of speculation” as to Armstrong’s involvement in the altercations at TYAC, constituted evidence connecting Armstrong to the altercations at TYAC. She submits that the trial judge misapprehended the evidence when he held that there was no evidence connecting Armstrong to the altercations at TYAC.
[44] The trial judge’s conclusion that there was no evidence in Springer’s trial testimony connecting Armstrong to the altercations at TYAC was a reasonable interpretation of Springer’s vague and somewhat nonresponsive answer to the single question posed by the Crown. I would defer to the trial judge’s understanding of the evidence.
[45] In my view, the trial judge did not make any material errors in his review of Springer’s evidence. Put simply, Springer’s trial testimony did not connect Armstrong or his altercation with J.B. at TYAC to the “bad blood” motive advanced by the Crown.
(b) Was the evidence admissible to show a prior relationship between Armstrong, K.C. and J.B.?
[46] The Crown next submits that even if the trial judge correctly held that the evidence could not support the “bad blood” motive, he erred in failing to admit the evidence to show a prior relationship between Armstrong, J.B. and K.C. The Crown submits that it was important for the Crown to demonstrate that J.B., K.C. and Armstrong were not strangers but rather had “a shared history”. On the Crown’s argument, this “shared history” made it more plausible that K.C. and J.B. would act together to kill Armstrong, as Springer testified.
[47] I start my analysis of this submission with the observation that at its best, this argument would justify admitting evidence establishing that Armstrong knew or had prior contact with K.C. and J.B. I do not think that the “prior association” argument could justify admitting evidence of a prior altercation between J.B. and Armstrong while they were in jail, or evidence that all three had been incarcerated together at TYAC. Consequently, even if evidence showing a prior connection and nothing more had some relevance, that relevance would justify only the admission of the evidence stripped of its strongly prejudicial elements unnecessary to establish the existence of a prior connection among the three. I do not understand the Crown at trial to have sought the admission of this evidence stripped of its prejudicial components.
[48] Evidence of a prior association between an accused and a deceased is often admitted in a murder case because it will have some relevance to a fact in issue. That relevance does not, however, flow from prior association standing alone. The evidence of prior association is usually offered as part of a larger evidentiary package capable of proving a fact in issue such as motive or an accused’s state of mind: see, e.g., R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 61-63; R. v. Johnson, 2010 ONCA 646, 262 C.C.C. (3d) 404, at para. 99-101.
[49] Evidence of a prior association between an accused and a deceased that begins and ends with evidence of some physical contact at some distant point in the past will have little, if any, probative value. With respect to the Crown’s submission, it overstates the force of the evidence to describe it as evidence of “a shared history”. The evidence only indicates that Armstrong, K.C. and J.B. lived in the same place for a few days 11 months before the murder and that J.B. and Armstrong had a very brief altercation while living in the same place. If this fleeting intersection in the lives of Armstrong, K.C. and J.B. constitutes “a shared history”, it is not one that is reasonably capable of shedding much, if any, light on what happened 11 months later.
[50] The distinction between evidence of prior association probative of motive and evidence of prior association not so probative is demonstrated by the two different evidentiary rulings in this case. Based on the preliminary inquiry testimony of Springer, the evidence of prior association between Armstrong, J.B. and K.C. at TYAC could be connected to the alleged “bad blood” between K.C.’s group and the Pentime/Poochi group. However, considered in the context of Springer’s trial evidence, the prior association between Armstrong, J.B. and K.C. could not be connected in any way to the Pentime/Poochi group or the altercations at TYAC. Without that link, the evidence of the prior relationship had little probative value. The potential prejudice of evidence placing J.B. and K.C. in jail and, in the case of J.B., engaged in criminal activity while in jail, is so obvious as to need no articulation.
(c) Did the trial judge err in his assessment of the probative value/ prejudicial effect of the evidence of J.B.’s altercation with Armstrong?
[51] Crown counsel’s next submission focuses on the admissibility of the evidence of the fight between Armstrong and J.B. Counsel submits that the trial judge properly held that the evidence was potentially admissible against J.B. as evidence of personal animus towards Armstrong. Counsel contends, however, that the trial judge wrongly excluded the evidence by overemphasizing the potential prejudicial effect of the evidence and overstating the difficulty in crafting a proper limiting instruction.
[52] A trial judge’s measurement of potential prejudice and his assessment of his ability to negate that prejudice by a proper limiting instruction are entitled to strong deference on appeal. Those assessments, particularly the latter, depend to some extent on the trial judge’s sense of the trial dynamic. This court cannot know that dynamic.
[53] The trial judge correctly identified the risk that the jury would speculate that the fight at TYAC involving J.B. and Armstrong was part of the “bad blood” described to Springer by K.C., even though K.C.’s statements about the altercations at TYAC were not admissible against J.B. Springer’s testimony that K.C. identified J.B. as part of his group increased the risk of misuse of K.C.’s statements against J.B. That evidence was also inadmissible against J.B.
[54] The risk of potential misuse was real. The extent to which the trial judge could overcome that risk by crafting an appropriate prophylactic instruction was very much for him to determine in the context of the case. I would defer to his assessment.
[55] In any event, I am far from satisfied that the evidence of the altercation between J.B. and Armstrong had any real probative value. Evidence of prior assault or argument between an accused and a deceased can provide evidence of animus which may support the existence of a motive to kill. However, not every argument or assault involving an accused and a deceased has that evidentiary potential. It all depends on the nature of the evidence.
[56] The evidence supported the inference that some 11 months before the murder, J.B. held animus against Armstrong or, perhaps more accurately, against a group that included Armstrong. That animus led to a very brief physical altercation at TYAC. The evidence offered no explanation for the source of the animus, no context in which to measure the nature and extent of the animus, and no basis upon which to infer that the animus continued, much less grew to a point where it motivated a murder. A jury asked to infer a motive for murder from the animus demonstrated by a brief altercation 11 months earlier would be asked to take a leap of faith rather than draw a reasonable inference.
[57] Finally, even if the evidence of the altercation involving J.B. and Armstrong had some minimal probative value to show J.B.’s animus toward Armstrong, the Crown’s theory of the case undercut even that minimal value. The Crown did not argue that J.B. targeted Armstrong to settle any personal score. To the contrary, the Crown’s position as expressed through Springer’s testimony was that Armstrong was not the intended target of the confrontation and that his death was more in the nature of collateral damage. Evidence that J.B. had some personal animus towards an unintended target adds nothing to the Crown’s case against J.B. The evidence of the fight is of course inadmissible as against K.C.
VI
Has the Crown shown that the verdict would not necessarily have been the same had the evidence been admitted?
[58] As I think the evidence was properly excluded, I do not need to consider whether the Crown demonstrated that the verdict would not necessarily have been the same had the evidence been admitted. I will, however, briefly address that issue.
[59] On a Crown appeal from acquittal, the Crown must demonstrate first, an error in law and second, that the error was sufficiently significant to allow the appellate court to conclude that the verdict would not necessarily have been the same had the error not been made. The onus on the Crown has been described as “a heavy one”: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 15.
[60] I think the Crown could only meet its burden on this appeal by demonstrating that the evidence was admissible to support the “bad blood” motive advanced at trial. The Crown initially secured a ruling granting admission on that basis. Arguments supporting the admissibility of the evidence on other grounds, even if correct, would not in my view afford the evidence sufficient probative value to permit the conclusion that the verdict would not necessarily have been the same had the jury heard the evidence.
[61] For example, even if the Crown’s “prior association” argument was accepted, evidence that J.B., K.C. and Armstrong were not strangers and had met some 11 months earlier would barely move the Crown’s case forward and would do nothing to confirm a material part of Springer’s testimony. I do not think there is any realistic possibility that evidence establishing no more than a prior connection among J.B., K.C. and Armstrong could have led to a different result.
[62] Put bluntly, the Crown had a viable claim that the evidence was admissible to support the “bad blood” motive based on Springer’s preliminary inquiry testimony. When his testimony changed, the Crown’s case for admissibility all but disappeared. Arguments for admissibility through some chain of reasoning other than as evidence to support the “bad blood” motive and thereby as evidence to confirm Springer’s testimony, even if legally tenable, could not satisfy the burden of demonstrating that the verdicts would not necessarily have been the same had the evidence been admitted.
VII
CONCLUSION
[63] I would dismiss the appeal.
Released: “DD” “JAN 26 2015”
“Doherty J.A.”
“I agree E.E. Gillese J.A.”
“I agree P. Lauwers J.A.”