COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Filipovic, 2015 ONCA 761

DATE: 20151109

DOCKET: C55263

Gillese, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marko Filipovic

Appellant

Otto Mok, for the appellant

Brock Jones, for the respondent

Heard and released orally: November 5, 2015

On appeal from the conviction entered on December 19, 2011 and the sentence imposed on March 20, 2012 by Justice Donald J. Taliano of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] A jury found the appellant guilty of a single count of break, enter and theft arising out of the unlawful entry of a Rogers Wireless store in Niagara Falls and the theft of about 140 cellphones.

The Background Facts

[2] The principal witness for the Crown at the appellant’s trial was a former employee of Rogers Wireless who admitted responsibility for the unlawful entry and theft. During the police investigation that followed discovery of the theft, this person, Julian Sniegocki, provided two statements to the police. The first was exculpatory. The second, which took place after police confronted him with more evidence, was inculpatory of Sniegocki, but also alleged culpable participation by the appellant.

[3] Prior to the appellant’s trial, Sniegocki pleaded guilty to break, enter and theft and was sentenced to a term of imprisonment.

The Trial Proceedings

[4] At the appellant’s trial, Sniegocki testified that nobody was with him when he unlawfully entered the Rogers Wireless outlet and stole the cellphones.

[5] Crown counsel at trial applied to cross-examine Sniegocki in accordance with the procedure enacted by s. 9(2) of the Canada Evidence Act. The trial judge granted the Crown leave to do so. Sniegocki never adopted as true that portion of his statement in which he had implicated the appellant in the break, entry and theft. He insisted that he acted alone.

[6] The trial judge permitted the Crown to file the statement on which he had granted Crown counsel leave to cross-examine Sniegocki as an exhibit in the proceedings. The exhibit included a DVD and a transcript of the statement. Crown counsel did not apply to have the statement admitted under the principled exception to the hearsay rule.

The Jury Instructions

[7] The trial judge instructed the jury that they could make substantive use of Sniegocki’s unadopted prior inconsistent statement. The judge said:

It is important for you to understand how to deal with testimony of Julian Sniegocki and the inconsistencies with his prior statements.

Both the testimony and the prior statements can be used as evidence of what happened. In deciding whether or how much to believe of or rely upon the testimony of Julian, you should apply the same principles in the same way that you do with any other witness who testifies. You should also consider the fact, nature, and extent of any differences that you find between what the witness said here and what he said in the earlier statements in deciding how much or little you will believe of or rely upon as testimony at trial.

You may also consider the statements and exhibits as evidence of what happened. Like the witness’s testimony, it is for you to say how much or little you will believe of and rely upon the statements in deciding this case.

The Grounds of Appeal

[8] The appellant did not advance either the filing of the prior inconsistent statement as an exhibit or the trial judge’s instructions about its use as a ground of appeal.

The Concession

[9] In the best traditions of his office, Crown counsel in this court acknowledged that the trial judge erred in:

i. admitting the statement as substantive evidence without proof of the conditions precedent to its admissibility; and

ii. instructing the jury that they could use the statement substantively, that is to say, as proof of the truth of its contents.

Discussion

[10] We agree with the concessions of Crown counsel. The unadopted prior inconsistent statement should not have been admitted as an exhibit in the proceedings. It had no intrinsic evidentiary value. Unadopted and not established to be within the principled exception to the hearsay rule, it was not and could not be used as proof of the truth of its contents. To be more specific, it was not and could not be used to establish, or to help to establish that the appellant committed the offence with which he was charged. The trial judge erred in law in instructing the jury that they could use the statement as proof of the truth of its contents in reaching their decision.

Conclusion

[11] For these reasons, we allow the appeal from conviction, set aside the conviction and enter a verdict of acquittal. In the circumstances, we do not reach the sentence appeal.

“E.E. Gillese J.A.”

“David Watt J.A.”

“G. Pardu J.A.”