COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Grizzle, 2016 ONCA 190

DATE: 2016-03-07

DOCKET: C58579

Watt, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Omar Grizzle

Appellant

Breana Vandebeek, for the appellant

David Finley, for the respondent

Heard: February 29, 2016

On appeal from the conviction entered on September 20, 2013 by Justice Julie A. Thorburn of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant appeals a jury verdict finding him guilty of possession of a loaded prohibited firearm. He advances three complaints:

i. the trial judge’s erroneous instructions on the fault element in the offence charged in connection with his co-accused infected the instructions on a count charging the same offence against the appellant;

ii. the trial judge erred in failing to remedy the trial Crown’s improper re-examination of an adverse Crown witness and her closing address; and

iii. the trial judge erred in her editing of the appellant’s criminal record in her Corbett ruling.

[2] We would not give effect to any of the grounds of appeal advanced on behalf of the appellant and would dismiss the appeal.

Ground #1: Erroneous Instruction on Fault Element

[3] It is common ground that the trial judge’s instructions on the fault element of the same offence alleged against the co-accused Tyrell in a separate count reflect error: R. v. Tyrell, 2014 ONCA 617, at paras. 31-33 and 37-39.

[4] The trial Crown advanced the case against the appellant and Tyrell on different grounds. The trial judge did likewise in her legal instructions on the basis of liability and her recitation of the case for the Crown. The errors made with respect to the fault element in connection with Tyrell were not repeated or incorporated by reference in connection with the count charging the same offence involving the appellant. The jurors were also instructed to decide the case against each person charged separately and individually on the basis of the evidence that applied to that person and in accordance with the legal principles that governed that individual. The jurors were provided with a written version of the instructions given orally by the trial judge.

[5] In our view, the appellant makes too much of the risk that the jury might have transposed the flawed instructions on the fault element given only in connection with the case against Tyrell to their deliberations relating to the charge against the appellant. Nothing the trial judge said or left unsaid expressly or impliedly invited jury use of the principles governing Tyrell’s liability in deciding whether the Crown had proven the appellant’s guilt beyond a reasonable doubt.

[6] We would reject this ground of appeal.

Ground #2: Improper Crown Conduct

[7] The appellant also complains about the trial Crown’s conduct in two respects:

i. cross-examination of a Crown witness beyond the scope of what is permitted under s. 9(2) of the Canada Evidence Act (CEA); and

ii. violation of the rule in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (U.K.H.L.) in the trial Crown’s closing address.

[8] We first consider the complaint that the re-examination of the Crown witness Ms. McPhee exceeded the bounds of what had been permitted under the trial judge’s earlier ruling permitting Crown counsel to cross-examine her under s. 9(2) CEA.

[9] It is well-settled that cross-examination under s. 9(2) may occur in re-examination: R. v. Moore (1984), 1984 3542 (ON CA), 15 C.C.C. (3d) 541 (Ont. C.A.), at pp. 568-569. It is equally well-established that cross-examination under s. 9(2) can extend to questions about the circumstances in which the witness changed his or her earlier version of events when testifying about those same events at trial: R. v. Taylor, 2015 ONCA 448, 325 C.C.C. (3d) 413, at para. 49

[10] In our view, the re-examination by the trial Crown did not exceed permissible limits. The re-examination arose out of questions asked by trial counsel for the appellant in cross-examination of Ms. McPhee. It was open to the trial Crown to re-examine the witness on this aspect of her evidence. And under s. 9(2) it was equally permissible for the trial Crown to cross-examine about the reasons for the change in her testimony.

[11] Even if we were to conclude that the re-examination strayed beyond the permissible, the transgression was a minor event in a comparatively lengthy trial. Counsel for the appellant at trial objected only after the witness had left the witness box and did not take up the opportunity offered by the trial judge of making submissions about a remedy, such as a mid-trial corrective or limiting instruction.

[12] The appellant also complains about the closing address of the trial Crown. To be more specific, the Crown suggested that apartment 309 at 2005 Eglinton Avenue West was a location where the accused would attend to engage in illegal activities, such as smoking marijuana and storing firearms, because the other locations they had access to would not allow this kind of activity. The appellant says that Crown counsel violated the rule in Browne v. Dunn because this theory was not put to the accused, Ms. McPhee – the owner of the apartment – or any defence witnesses, so that it was unfair to invoke it in his closing address as a circumstance for the jury to consider in rejecting the case for the defence. The appellant adds that the defence requested the trial judge to advise the jury to give this evidence no weight, but she did not give such an instruction.

[13] The rule in Browne v. Dunn (1894), 1893 65 (FOREP), 6 R. 67 (U.K.H.L.) is a rule of fairness, not a fixed or invariable rule. The extent of its application resides within the sound discretion of the trial judge. The remedy for a breach of the rule is a function of several factors. A trial judge’s choice of remedy is subject to substantial deference on appellate review: R. v. Quansah, 2015 ONCA 237, 323 C.C.C. (3d) 191, at paras. 80-90.

[14] When the complaint advanced here was made at trial, the trial judge concluded that no corrective action was required. Her assessment of the nature of the breach and whether some remedial action was required are decisions that were within her discretion and are entitled to deference in this court. We have not been persuaded that her conclusions reflect error.

Ground #3: The Corbett Ruling

[15] The final ground of appeal asserts two errors in the trial judge’s Corbett ruling. To be more specific, the appellant says that the trial judge erred in:

i. finding that the attack by trial counsel on the credibility of the investigating police officers amounted to an attack on their character; and

ii. failing to exclude the appellant’s prior convictions for crimes of violence on the basis that their probative value was overborne by their prejudicial effect.

[16] The decision of a trial judge to exclude or not exclude part of an accused’s criminal record is an exercise of judicial discretion. It is a decision that we do not review on a standard of correctness. In the absence of an error in principle or a misapprehension of relevant evidence, we are disentitled to interfere with the trial judge’s exercise of that discretion: R. v. Talbot, 2007 ONCA 81, 217 C.C.C. (3d) 415, at paras. 37-38.

[17] In this case, the trial judge was asked to exclude the appellant’s convictions of attempted murder, weapons-related offences and all assault convictions and to have the robbery conviction described as a conviction for theft. The trial judge deleted the weapons offence and substituted an assault conviction for that of attempted murder.

[18] The principal driver of the trial judge’s decision was her determination that the appellant had attacked the character of the officer who located the gun and the appellant’s identification in a suitcase in the children’s bedroom. We are not persuaded that she erred in her characterization of the nature of trial counsel’s attack on the seizing officer. Despite this conclusion, she deleted all the weapons and firearms convictions to ensure that propensity reasoning did not seep into the deliberation process, limiting instructions notwithstanding.

[19] The trial judge’s location of the balance between probative value and prejudicial effect is entitled to substantial deference in this court. That another trial judge might have set the balance differently does not entitle us to interfere. Indeed, another trial judge might not have sanitized the conviction of attempted murder: see, for example, R. v. Saroya, 1994 955 (ON CA), [1994] O.J. No. 2920 (C.A.), at para. 13.

Conclusion

[20] For these reasons, the appeal is dismissed.

“David Watt J.A.”

“P. Lauwers J.A.”

“G. Pardu J.A.”