Court of Appeal for Ontario

CITATION: R. v. Clause, 2016 ONCA 859

DATE: 20161117

DOCKET: C59063

Sharpe, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kelli Lynn Clause

Appellant

Joshua D. Frost, for the appellant

John A. Neander, for the respondent

Heard: June 10, 2016

On appeal from the conviction entered on April 6, 2013 and the sentence imposed on January 9, 2014 by Justice Harrison S. Arrell of the Superior Court of Justice, sitting with a jury.

Brown J.A.:

I. Overview

[1] On January 10, 2010 the appellant, Kelli Lynn Clause, hosted a birthday party at a house on Second Line Road near Ohsweken, Ontario. During the party, the complainant, Ross Martin, was stabbed in the eye while sitting in a car and seriously injured. The only real issue at trial was whether it was the appellant who stabbed Mr. Martin in the eye.

[2] The jury convicted the appellant of one count of aggravated assault. At the conclusion of the hearing of the appeal, this court allowed the appeal and directed a new trial, with reasons to follow. These are those reasons.

II. A brief chronology of events

[3] On January 9, 2010, after returning home from work, Mr. Martin passed the afternoon and evening drinking with a friend, Roni-Lee Styres. Mr. Martin, Ms. Styres, and Skylar Henry lived together at the time.

[4] Late that evening, Mr. Martin chatted with the appellant on Facebook, and she invited him to her birthday party. The appellant picked Mr. Martin up from his house early in the morning of January 10, and they proceeded to the party.

[5] About half an hour after Mr. Martin and the appellant reached the Second Line Road house, a group of 15 to 20 people arrived. Mr. Martin testified he was sucker punched by one of the new arrivals and then attacked by others as he lay on the ground.

[6] After the attack, Mr. Martin left the house and began to walk back to where he lived. The appellant and another female picked him up along the way and drove him to the house he shared with Ms. Styres and Mr. Henry. Mr. Martin said he wanted to fight and planned to return to the Second Line residence.

[7] Upon reaching his house, Mr. Martin asked Ms. Styres to drive him back to the party. Mr. Martin, Ms. Styres, and Mr. Henry then returned to the Second Line Road house using Ms. Styres’s car.

[8] Although there was conflicting evidence about precisely what happened next, the evidence showed Mr. Martin attacked the appellant’s younger brother with a baseball bat outside of the house. Mr. Martin, in turn, was attacked by a group of people who came out of the house. He was hit with a variety of objects, including beer bottles and a metal pipe.

[9] Ms. Styres and Mr. Henry were able to extricate Mr. Martin from the group and place him on the backseat of the car. While Mr. Martin was seated in the car, someone reached into the vehicle with a beer bottle and stabbed him in his right eye. He suffered serious injuries.

[10] Ms. Styres and Mr. Henry took Mr. Martin to his mother’s residence. The police were called and Mr. Martin was taken to hospital. At the hospital, Mr. Martin told a police officer he did not know who had attacked him.

[11] In their initial statements to the police, Ms. Styres and Mr. Henry identified three males as the persons who had attacked Mr. Martin at the Second Line residence before he was stabbed in the eye. All three men were charged and pled guilty to aggravated assault.

[12] Mr. Martin first identified the appellant as one of his attackers in a January 26, 2010 statement he gave to the police. At trial, Mr. Martin, Ms. Styres, and Mr. Henry testified that it was the appellant who reached in and stabbed Mr. Martin in the face with a beer bottle.

[13] The jury convicted the appellant of one count of aggravated assault.

III. The issues on appeal

[14] The appellant advances several grounds of appeal, which I will address in the following order:

1. In his opening statement, Crown counsel improperly referred to three statements the appellant made to the police, the admissibility of which was contested. The appellant submits the trial judge erred in failing to declare a mistrial after the Crown’s opening;

2. Alternatively, the appellant submits the trial erred by failing to give the jury an immediate corrective instruction to ignore the Crown’s improper reference to the three statements in his opening;

3. The trial judge erred in admitting a statement the appellant made to a police officer at a gas station shortly after the incident;

4. The trial judge failed to instruct the jury properly on the use they could make of the appellant’s gas station statement;

5. The trial judge’s charge was inadequate because he failed to instruct the jury on how to assess the prior inconsistent statements of three key Crown witnesses – Messrs. Martin and Henry, and Ms. Styres; and

6. The charge was inadequate because the trial judge failed to instruct the jury on possible collusion amongst Messrs. Martin and Henry and Ms. Styres in regards to their evidence identifying the appellant as the person who struck Mr. Martin in the face with a beer bottle.

[15] I see no error in the trial judge’s decision not to declare a mistrial (Issue 1), his admission of the appellant’s gas station statement to the police (Issue 3), or in his charge to the jury about how to assess inconsistencies in the evidence of the three key Crown witnesses (Issue 5). However, I accept the appellant’s submission that the trial judge made three errors of law: (i) he failed to provide the jury with a timely corrective instruction regarding the Crown’s improper opening (Issue 2); (ii) he failed to instruct the jury properly on the use they could make of the appellant’s gas station statement to the police (Issue 4); and (iii) he failed to instruct the jury on the possibility of collusion amongst the three key Crown eye-witnesses (Issue 6). Cumulatively, those three errors resulted in an unfair trial, requiring the appellant’s conviction to be set aside and a new trial ordered.

IV. Issues 1 and 2: The Crown’s opening address

A. The issue stated

[16] During the course of his opening address, Crown counsel referred to three statements the appellant had made to police officers. The appellant made the first two statements to Sergeant Timothy Bomberry shortly after the assault on Mr. Martin.

[17] Crown counsel stated Sgt. Bomberry went to the residence of Mr. Martin’s mother and assisted the paramedics in preparing him for transport to the local hospital. Crown counsel then stated:

After leaving the residence in Hagersville, [Sgt. Bomberry] had to stop to fuel up his cruiser. Coincidentally, there he observed the accused, Kelli Lynn Clause, and Lisa Hill. They too were filling up gas in their vehicle. He spoke with Ms. Clause and asked her specifically if she had met up with Mr. Ross Martin that night. Ms. Clause deliberately lied to the officer in stating that she had not seen Mr. Martin, but that they were in fact, supposed to meet up at a bar called Jackhammers in Brantford, but that he didn’t show up. He advised Ms. Clause of the reason of his inquiry and she again stated emphatically that she had not seen Mr. Martin that night (the “Gas Station Statement”).

[18] Crown counsel told the jury that Sgt. Bomberry then interviewed Mr. Martin’s roommates. Based on information he learned, Sgt. Bomberry returned to the Second Line residence where he encountered the appellant:

[W]ho became belligerent with him, who became assaultive with him. He will testify that she was intoxicated. He then began another conversation with her. He stated, “You lied to me about knowing what happened to Ross Martin.” Her response to him was, “I don’t give a fuck, fuck him.” She then tried to grab the sergeant and interfere with his investigation by yelling and screaming (the “Second Statement”).

[19] Crown counsel also referred to the anticipated evidence of Detective Constable Gordon Hill, who arrested the appellant when she turned herself in at the police station. In describing those events, Crown counsel told the jury:

Later that day, Detective Hill spoke with her and informed her as to the reason for her arrest, in particular, information he had received from Ross Martin as to her involvement in the aggravated assault. She denied that she was responsible, claiming that she was inside the residence on Second Line Road during the assault on Mr. Martin (the “Third Statement”).

[20] On the day following the Crown’s opening, defence counsel moved for a mistrial on the basis that Crown counsel had referred improperly to the three statements – they were statements made by the appellant to persons in authority the admissibility of which had not been determined in a voir dire. The trial judge dismissed the motion, ruling:

Your motion is dismissed. The comments made by [Crown counsel] in his opening was clearly indicated to the jury that it’s not evidence. If those statements do not go in after we have a voir dire, the jury will be instructed even more fully that what [Crown counsel] said was totally irrelevant, not evidence and not to be considered by them. Whether these three statements go in or do not go in will depend on a voir dire if that’s what we need to have now.

[21] With the agreement of counsel, the voir dire was held several days later in the trial. Just prior to the start of the voir dire, Crown counsel advised he was not seeking the admission of the Third Statement.

[22] On the voir dire, Sgt. Bomberry testified about the Gas Station and Second Statements. The trial judge ruled that the Gas Station Statement was admissible because it was taken when the appellant was not a suspect, but the Second Statement was inadmissible as it was taken when the appellant was arbitrarily detained.

[23] The following day, defence counsel renewed her motion for a mistrial, arguing that the Crown had referred improperly in his opening to the three statements, one of which had now been ruled inadmissible and one of which the Crown had withdrawn. Defence counsel recalled the tone Crown counsel had used in his opening when referring to the excluded Second Statement, “when it was put to the jury in clear, loud, slow terms, ‘I don’t give a fuck, fuck him.’” Defence counsel submitted it was unlikely a corrective instruction would dislodge the impact of that statement.

[24] The trial judge again dismissed the motion for a mistrial, ruling:

The motion for mistrial is dismissed. I acknowledge [defence counsel] that what the Crown said in the opening is very unfortunate, that never should have been said until it was clear that the statements were going to be admitted. However, it’s also been made very clear to the jury that what the lawyers say is not evidence. I will reemphasize that in no uncertain terms in my charge, and I’m confident that this jury, and the case law supports this overwhelmingly, that the jury will follow my instructions. And juries do follow judge’s instructions, and I expect this jury will as well, and I will give a very clear instruction that what counsel says in openings or closings, or at any time, is not evidence, and the only evidence of any statement by your client is the one statement that will be admitted.

[25] The trial judge did not give a mid-trial corrective instruction to the jury about the Crown’s reference in his opening to the inadmissible statements.

[26] Following counsel’s closings to the jury, defence counsel requested the trial judge include an express reference in his charge “to the fact there was evidence about alleged statements made by [the appellant] in the opening statement that cannot and should not be considered in [the jury’s] deliberation.” The trial judge stated he was not inclined to do so. His charge would instruct the jury that what the lawyers say is not evidence, and he was “reluctant, three weeks later, to bring up those two statements again.”

[27] In his charge, the trial judge instructed the jury that there were some things that were not evidence, including: “What the Crown said in his opening and what both lawyers said in their closings are not evidence.” This instruction tracked what the trial judge had said in his introductory remarks to the jury at the beginning of the trial.

B. The positions of the parties

[28] The appellant submits the trial judge should have declared a mistrial to remedy the prejudice resulting from the Crown referring in his opening to the three statements, the admissibility of which was in dispute. She argues the Second Statement was highly prejudicial given its content and the tone in which it was conveyed by Crown counsel, yet had little probative value. The appellant contends the Crown’s opening cast her as a liar and a belligerent person, giving rise to the risk of propensity reasoning by the jury.

[29] Alternatively, the appellant submits the trial judge erred in failing to give the jury a mid-trial instruction about the improper contents of the Crown’s opening address. He also erred in failing to instruct the jury expressly in his charge to ignore the Second and Third Statements.

[30] The respondent acknowledges that the Crown should not have referred to the three statements in his opening. However, the respondent submits two circumstances rendered those references harmless: (i) the trial judge’s instructions that what counsel said was not evidence and (ii) the passage of two weeks from the time of the Crown’s opening until the jury began its deliberations.

[31] Alternatively, the respondent submits that if the trial judge erred in failing to give a more specific corrective instruction, this is an appropriate case for the application of the curative proviso: Criminal Code, s. 686(1)(b)(iii).

C. Analysis

[32] The limits on a Crown’s opening address to a jury are well-established: the Crown should use an opening to introduce the parties, explain the process, and provide a general overview of the evidence the Crown anticipates calling in support of its case: R. v. Mallory, 2007 ONCA 46, 222 O.A.C. 239, at para. 338. In an opening statement, the Crown should not refer to evidence the admissibility of which is in dispute: R. v. Smith (1994), 1994 CanLII 4676 (SK CA), 120 Sask. R. 221, [1994] S.J. No. 316, (C.A.), at paras. 44 and 47. For example, since a statement or confession an accused person made to a person in authority does not become evidence until ruled admissible, Crown counsel should not refer to it in an opening: R. v. Truscott (1960), 1960 CanLII 474 (ON CA), 126 C.C.C. 109, [1960] O.J. No. 402 (C.A.), at para. 5.

[33] In the present case, it was improper for Crown counsel to refer in his opening address to the three statements the appellant made to a police officer when the admissibility of those statements had not been ruled or agreed upon. The issue is whether the trial judge took adequate steps in the circumstances to mitigate any prejudice to the appellant caused by the Crown’s improper references.

Mistrial

[34] The appellant submits the trial judge erred in refusing her two requests for a mistrial.

[35] Mistrials are a remedy of last resort and should only be declared to avoid miscarriages of justice: R. v. A.G., 2015 ONCA 159, 124 O.R. (3d) 758, at para. 50. A trial judge is best positioned to assess whether a mistrial is warranted in the circumstances. Consequently, an appellate court owes significant deference to a trial judge’s determination whether to grant a mistrial, and should only interfere with a decision to deny a mistrial if that decision is clearly wrong or based on an erroneous principle: A.G., at paras. 51 and 52.

[36] Here, as noted above, the trial judge refused to declare a mistrial because he intended to give instructions to the jury about the improper references made by the Crown in his opening.

[37] Proposing to use a corrective instruction certainly fell within the range of acceptable approaches by which to mitigate the prejudice flowing from the improper references in the Crown’s opening. Accordingly, the trial judge did not err in refusing to declare a mistrial.

Corrective instruction

[38] When improper comments by Crown counsel are sufficiently prejudicial, a trial judge has a duty to intervene; a failure to do so will constitute an error of law: R. v. Romeo, 1991 CanLII 113 (SCC), [1991] 1 S.C.R. 86, at p. 95; R. v. A.T., 2015 ONCA 65, 124 O.R. (3d) 161, at para. 38. Accordingly, where the Crown refers in its opening to anticipated evidence that subsequently is not led or is ruled inadmissible, it is the duty of the trial judge to tell the jury explicitly that the statements complained of are not in evidence and they must try to free their minds from them: R. v. Walker (1910), 1910 CanLII 182 (BC CA), 15 B.C.R. 100, [1910] B.C.J. No. 18 (S.C.), at para. 7; Smith, at para. 48.

[39] Where a trial judge fails to redress properly the harm caused by a clearly unfair or significantly inaccurate jury address, a new trial may result: R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262, at para. 127. The question is whether, in the context of the entire trial, the remarks and the trial judge’s response or failure to respond caused a substantial wrong or miscarriage of justice: Romeo, at p. 95.

[40] The trial judge recognized his duty to intervene, but failed to do so in the manner required by the circumstances. The Crown’s reference in his opening to three statements by the accused, the admissibility of which was in dispute, called for strong intervention. The trial judge should have intervened immediately after objection was made following the Crown opening, or certainly no later than the conclusion of the voir dire when the trial judge ruled on the admissibility of the statements.

[41] The trial judge recognized the prejudice that could result from the Crown’s improper opening. In his voir dire ruling, the trial judge had described the Second Statement as “not terribly probative” and “highly prejudicial”. Yet the trial judge ended up merely making a general statement in his charge that what the Crown said in his opening was not evidence. With respect, that general statement did not constitute the full and emphatic instruction he said he would give, and it failed to redress properly the harm caused by the Crown’s improper reference to the three statements in his opening.”

[42] By failing to give an adequate corrective instruction to the jury, the trial judge erred in law.

[43] The respondent submits that if the trial judge erred in failing to give a proper corrective instruction, this would be an appropriate case for the application of the curative proviso: Criminal Code, s. 686(1)(b)(iii). I will consider the availability of the curative proviso at the end of these reasons.

V. Issue 3: Did the trial judge err in dismissing the appellant’s ss. 9 and 10(b) Charter application to exclude the Gas Station Statement?

A. The issue stated

[44] In her Gas Station Statement, the appellant said she had not seen Mr. Martin the night of the assault and he had not shown up at the Jackhammers bar in Brantford where they had agreed to meet. The appellant submits the trial judge erred by dismissing her motion to exclude the Gas Station Statement on the ground that Sgt. Bomberry had obtained it in violation of her rights under ss. 9 and 10(b) of the Canadian Charter of Rights and Freedoms.

B. Analysis

[45] The appellant submits the trial judge erred in holding Sgt. Bomberry did not violate her Charter rights because he did not consider whether a reasonable person would conclude the appellant was detained at the time she made the Gas Station Statement.

[46] I would not accept this submission. In his ruling on the voir dire, the trial judge identified and applied the correct legal tests: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460. His conclusion that the appellant was not psychologically detained when she made the Gas Station Statement to Sgt. Bomberry was fully supported by the evidence: Sgt. Bomberry did not consider her a suspect or person of interest at the time; he met her by chance when he stopped at the gas station to fuel his vehicle; initially Sgt. Bomberry tapped on the window of the car in which the appellant was a passenger and they spoke with the window rolled down; the appellant wanted to roll up the window because it was an extremely cold night, and she consented to Sgt. Bomberry coming into the car to continue the conversation, which lasted another four minutes; when Sgt. Bomberry left the car, the appellant and her friend continued on their way.

[47] Although the trial judge did not state expressly in his voir dire ruling that a reasonable person looking at all the circumstances would conclude the appellant was not detained, that conclusion was apparent when his ruling is read as a whole. I see no error in his decision that Sgt. Bomberry did not violate the appellant’s s. 9 and 10(b) Charter rights.

VI. Issue 4: The admissibility and use of the Gas Station Statement

A. The issues stated

[48] The appellant submits the trial judge made two further errors regarding the Gas Station Statement. He:

(i) failed to take into account relevant factors when determining the statement’s admissibility given that the Crown intended to use the Gas Station Statement to tell the jury the appellant had fabricated the statement and was a liar; and

(ii) failed to instruct the jury adequately on the use they could make of the Gas Station Statement.

B. Admissibility

The Crown’s intended use of the Gas Station Statement

[49] The Crown not only asked the jury to conclude the appellant’s exculpatory Gas Stations Statement was false, but also that she had fabricated the statement in an effort to avoid culpability. In his closing, Crown counsel stated:

[H]er responses to [Sgt. Bomberry] were an absolute and deliberate lie, a deliberate and calculated attempt to deflect any and all attention away from herself, her family and the activities occurring at 2099 Second Line Road.

[50] Crown counsel also pointed to the appellant’s “deliberate lies to Sgt. Bomberry” as one of several pieces of evidence that “speaks volumes as to her culpability in this crime.” Crown counsel thereby sought to use the appellant’s Gas Station Statement as circumstantial evidence of her guilt.

[51] In her closing, defence counsel did not seriously dispute the appellant had made the Gas Station Statement. Instead, counsel characterized the statement more as a “lying, dishonest way of, I don’t want to be involved with anything”, a “dishonest brushoff”, and “what she said was, I don’t have anything to say”.

Analysis

[52] Our law distinguishes between an exculpatory statement that is disbelieved and rejected by the trier of fact, and one that is found to have been fabricated or concocted to avoid culpability. This court explained the distinction and its implications in R. v. Bradey, 2015 ONCA 738, 127 O.R. (3d) 721, at paras. 165-174. An alibi or other exculpatory statement that is merely disbelieved is not evidence that strengthens the Crown’s case. By contrast, “where the Crown adduces evidence from which the trier of fact can infer that the exculpatory statement was fabricated, that evidence is capable of supporting an inference of guilt”: para. 169.

[53] The reason for distinguishing mere disbelief from a finding of fabrication relates to the fundamental principle that the onus of proof remains on the Crown throughout a criminal trial. As this court explained in R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (C.A.), at para. 19:

The distinction reduces the risk that a trier of fact may blur the need for the Crown to prove the offence charged beyond a reasonable doubt with the failure of the accused to provide a credible defence. The distinction also recognizes the danger that a trier of fact may attach undue weight to the rejection of an accused's explanation and may move too readily from mere disbelief to a finding of guilt.

[54] The implications of the distinction for the admissibility of a statement were explained in Bradey, at paras. 171-173:

In many, if not most, cases, a trier of fact may logically infer fabrication from disbelief. But the policy that underpins the distinction between disbelief and fabrication sets its face against using disbelief to infer fabrication. Instead, to establish fabrication, we insist on evidence that is independent of the evidence that contradicts or discredits the exculpatory explanation…

Evidence of fabrication may emerge from the circumstances in which the disbelieved out-of-court statement was made… For example, the circumstances in which a false statement was made may show an intent to mislead the police or others or an intent to deflect suspicion from the maker of the statement or towards others…

The decision in O’Connor … affords some examples of circumstances in which a statement was made that might assist in proving that the statement was fabricated:

The timing of the statement, for example that the accused provided the statement at a time when the police did not suspect or have any reason to suspect the involvement of the accused;

The scope of the exculpation provided by the statement; and

The degree of detail provided in the statement. [Citations omitted].

[55] The appellant submits that on the voir dire to determine the admissibility of the Gas Station Statement, the trial judge failed to consider whether there existed sufficient evidence, independent of the falsity of the statement, to demonstrate fabrication.

[56] A trial judge has a duty to consider the effect of the Crown’s allegation of fabrication on the admissibility of an accused’s statement. This duty persists even where the voir dire focuses on other issues relating to the statement, such as voluntariness or Charter compliance: R. v. Hall, 2010 ONCA 724, 269 O.A.C. 199, at para. 163.

[57] The trial judge did not do so in this case. That said, since the parties did not ask the trial judge to assess the effect of the Crown’s allegation of fabrication on the admissibility of the Gas Station Statement, his failure to do so is understandable.

[58] More importantly, I do not regard this oversight as materially affecting the admissibility of the Gas Station Statement. There was ample independent evidence of fabrication. Unlike the circumstances in Hall, the Crown’s case against the appellant did not rest only on circumstantial evidence – three eye-witnesses testified she assaulted Mr. Martin. As well, the circumstances in which the appellant made the Gas Station Statement afforded some evidence of fabrication – the appellant made the statement at a time the police did not suspect her, and she provided some detail in the statement, contending Mr. Martin did not keep their arrangement to meet at a Brantford bar.

[59] Consequently, I would not give effect to this ground of appeal.

B. Instructions on the use of the Gas Station Statement

[60] The appellant further submits the trial judge failed to provide the jury with clear instructions on the inference they could draw from the Gas Station Statement. In particular, the appellant argues the trial judge did not instruct the jury on the distinction between an accused’s evidence that is disbelieved and evidence that is fabricated. The appellant submits such an instruction was necessary to prevent the jury from inferring fabrication from disbelief in the circumstances of this case.

[61] In O’Connor, this court laid down a two-step process for the trier of fact to follow where alibi evidence is introduced: paras. 34-38. First, the trier of fact must determine whether they believe or have a reasonable doubt about the truthfulness of the alibi. Next, if the judge concludes that there is sufficient independent evidence of fabrication of an exculpatory out-of-court statement, “the judge should instruct the jurors that it is open to them to find that the accused fabricated the exculpatory version of events because he or she was conscious of having done what is alleged and that they may use that finding, together with other evidence, in deciding whether the Crown has proven the case beyond a reasonable doubt”: para. 37 (emphasis added). If, on the other hand, there is insufficient independent evidence of fabrication, the jury should be instructed to disregard any disbelieved exculpatory statement and decide the case on the balance of the evidence: para. 36.

[62] It is essential for the trial judge to set out clearly the difference between evidence leading only to disbelief and independent evidence of fabrication. Where the fabrication instruction is given, the trial judge must “carefully outline what evidence is capable of constituting independent evidence”: O’Connor, at para. 38.

[63] In the present case, the trial judge’s charge does not conform to the requirements set out in O’Connor. In his charge, the trial judge focused his instructions on whether the appellant had made the Gas Station Statement. He stated:

When a witness says what he heard Ms. Clause say, you have to decide whether you believe Ms. Clause made the statement or any part of it…In deciding whether Ms. Clause actually said [the Gas Station Statement], you should use your common sense…Unless you decide that Ms. Clause made a particular remark or statement, you must not consider it in deciding this case.

If you decide that Ms. Clause made remarks that may help her in her defence, or if you cannot decide whether she made it, you will consider that statement along with the rest of the evidence in deciding whether you have a reasonable doubt about Ms. Clause’s guilt.

You may give anything you find Ms. Clause said as much or as little importance as you think it deserves in deciding this case. It is for you to say. Anything you find Ms. Clause said, however, is only part of the evidence in this case. You should consider it along with and in the same way as all the other evidence.

[64] With respect, this instruction was not sufficient. The Crown sought to use the appellant’s Gas Station Statement for the purpose of demonstrating she was a liar who tried to deflect police attention away from herself. Having admitted the Gas Station Statement, the trial judge was obliged to give the jury an instruction on the use of the statement that incorporated the elements set out in O’Connor. He did not do so. The trial judge did not explain to the jury the difference between a finding of disbelief and one of fabrication, nor did he instruct them on what they could consider as independent evidence of fabrication.

[65] The trial judge’s failure to give such an instruction constituted an error of law that prejudiced the appellant’s right to a fair trial in the circumstances of this case.

VII. Issue 5: The failure to instruct the jury adequately regarding the credibility of witnesses

The issue stated

[66] The appellant submits the evidence of Messrs. Martin and Henry, and Ms. Styres, was central and highly material to the case against her. Their evidence, she argues, contained many material inconsistencies relevant to their credibility and reliability: the evidence they gave at trial about the incident differed materially from the information they provided in their initial statements to the police; in some instances their evidence on cross-examination at trial was inconsistent with that given in chief; they admitted lying to the police; and Ms. Styres and Mr. Martin admitted they lied under oath at the preliminary hearing.

[67] The appellant contends the trial judge failed to provide the jury with adequate instructions that would enable them to assess properly the credibility and reliability of these witnesses. It was not enough for him to highlight some of the inconsistencies, as he did. The trial judge should have given the jury a legal instruction explaining the evidentiary effect of prior inconsistent statements, together with specific examples from the case.

[68] The Crown submits the trial judge’s instructions about how to assess the effect of prior inconsistent statements on the credibility of these witnesses were functionally adequate and faithfully related the defence position to the jury.

Analysis

[69] I would accede to the Crown’s submission.

[70] The adequacy of the trial judge’s instructions must be assessed in the context of the specific circumstances of the case.

[71] In her closing to the jury, defence counsel reviewed in great detail what she submitted were inconsistencies and frailties in the evidence of those three Crown witnesses, including their late identification of the appellant as the assailant. She argued that witnesses lied and the jury should not believe them.

[72] The trial judge provided counsel with a draft of his charge. It contained the standard instruction on the use the jury could make of prior inconsistent statements. It also identified some of the prior inconsistent statements made by Mr. Martin and Ms. Styres. The trial judge also included a statement that all three witnesses admitted lying to the police. In the section setting out the position of the defence, the trial judge stated the defence was contending the Crown’s case relied on the evidence of the three witnesses and “all of these witnesses admitted that they had lied to the police and under oath in respect to this case.”

[73] The trial judge entertained submissions from counsel on the draft charge. In respect of the section of the charge dealing with prior inconsistent statements, defence counsel requested a minor addition to the description of the evidence given by one witness. The trial judge made the requested change. Defence counsel raised no other issue about the adequacy of this portion of the charge – there was no request to include additional examples of prior inconsistent statements by any of the three Crown eye-witnesses or to expand the legal instruction on the use of such statements.

[74] Defence counsel’s concerns regarding the inconsistencies in the evidence and the credibility of the witnesses were well-canvassed with the jury. The trial judge was not obliged to go over each of them again in detail. That defence counsel did not attempt to press him to do so in the pre-charge submissions confirms this. In those circumstances, the charge of the trial judge on the use of prior inconsistent statements was adequate. I would not give effect to this ground of appeal.

VIII. Issue 6: Did the trial judge err in failing to charge to the jury on the possibility of collusion amongst three Crown witnesses?

A. The issue stated

[75] Three witnesses identified the appellant as the person who struck Mr. Martin in the face with a beer bottle: Mr. Martin, Ms. Styres, and Mr. Henry. All three were friends. At the time of the incident, they lived together in a house Mr. Styres owned. Mr. Martin and Ms. Styres had been romantically involved in the past.

[76] During the pre-charge conference, defence counsel asked the trial judge to instruct the jury on the law regarding collaboration and collusion. She submitted there was evidence those three witnesses had talked to each other about the appellant’s involvement in the events.

[77] The Crown objected to the inclusion of such an instruction in the charge, arguing there was an absence of evidence of any collusion amongst the three witnesses.

[78] The trial judge refused to include such an instruction, ruling:

I don’t see collusion here. I don’t see any evidence of collusion. All I see is that one comment that, in the statement that he had, Ross Martin had spoken to Roni Lee, either the day before or whatever, that he spoke to Detective Hill. But other than that, you’ve not provided any evidence that they’ve colluded in what their evidence has been before the court. That’s what collusion is.

[79] The appellant submits the trial judge erred in failing to charge on possible collusion in light of the evidence in the record and the relevance of possible collusion to the credibility assessment of the evidence from Mr. Martin, Ms. Styres, and Mr. Henry.

[80] The respondent submits the trial judge properly refused to charge on collusion because the evidence of the dealings amongst the three witnesses amounted to nothing more than evidence of contact, not the possibility they had joined in concocting evidence.

B. Analysis

[81] Collusion can arise both from a deliberate agreement to concoct evidence, as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events: R. v. B. (C.) (2003), 2003 CanLII 32894 (ON CA), 167 O.A.C. 264, [2003] O.J. No. 11 (C.A.), at para. 40. As this court noted in R. v. F.(J.) (2003), 2003 CanLII 52166 (ON CA), 177 C.C.C. (3d) 1, [2003] O.J. No. 3241 (C.A.), at para. 77, the “reliability of a witness’s account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people’s stories, which can tend to colour one’s interpretation of personal events or reinforce a perception about which one had doubts or concerns.”

[82] In R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, the Supreme Court addressed how to deal with the issue of possible collusion outside the context of similar fact evidence. The court stated, at para. 45:

On the assumption that the evidence is admissible, I am prepared to adopt the more conventional approach which would leave it to the trier of fact to determine what weight, if any, is to be given to evidence that is alleged to have been concocted by means of collusion or collaboration. Under this approach, the trier of fact is obliged to consider the reliability of the evidence having regard to all the circumstances, including the opportunities for collusion or collaboration to concoct the evidence and the possibility that these opportunities were used for such a purpose.

[83] Summarizing the jurisprudence dealing with the possibility of tainting by collusion in the context of the treatment of similar fact evidence, this court stated in R. v. F.(J.), at para. 86, that once evidence is admitted, “the jury must still be warned to assess the evidence carefully and to consider whether it can be considered reliable given the possibility of deliberate or accidental tainting by collusion among the witnesses” (citation omitted).

[84] As a result, in a case where there is an air of reality to the possibility of collusion, the jury should be instructed that their consideration of the reliability of the evidence, having regard to all the circumstances, should include a consideration of the opportunities for collusion or collaboration to concoct the evidence and the possibility that these opportunities were used for such a purpose: B. (C.), at para. 40.

[85] In the present case, the evidence, when taken as a whole, disclosed there was an air of reality to the possibility of collusion amongst the three witnesses who testified the appellant struck Martin the face with a beer bottle – Messrs. Martin and Henry, and Ms. Styres.

[86] Significantly, in their initial statements to the police, none of the three identified the appellant as the person who struck Mr. Martin in the face with a beer bottle. In addition, both Mr. Martin and Ms. Styres admitted they had lied in various pre-trial statements they had given to the police.

[87] Ms. Styres initially told the police she did not witness the assault. In her interview with the police the day after the assault, she did not identify the appellant as the person who hit Mr. Martin in the face with a beer bottle. Instead, she told the police she assumed the appellant’s brothers had reached into the car to get Mr. Martin. Later, at the appellant’s December, 2011 preliminary hearing, Ms. Styres identified the appellant as the assailant for the first time.

[88] In his initial statement to the police, Mr. Martin did not identify the appellant as the person who had stabbed him in the eye with a beer bottle. At the appellant’s preliminary inquiry held on December 7, 2011, Mr. Martin testified that he did not remember who caused him to lose his eye. At trial, Mr. Martin stated that at the preliminary inquiry he did not give a full description of the appellant’s involvement in the incident because he did not want anyone to get into trouble.

[89] The police conducted a videotaped interview of Mr. Henry the day after the incident. In his description of the events, Mr. Henry did not mention that Martin was stabbed in the face by the appellant with a beer bottle; he made no mention of any assault on Martin while he was in the car. At trial, Mr. Henry testified the appellant reached in with a beer bottle and stabbed Mr. Martin in the right side of the face.

[90] There was evidence that these three witnesses had discussed with each other the events regarding the assault on Mr. Martin.

[91] Mr. Henry testified that he did not talk to Ms. Styres before giving his statement to the police the day after the incident. However, Mr. Henry did state that after the incident, he talked with Ms. Styres about what they had observed, stating the two of them “observed the same thing” and spoke about the identities of the people involved in the assault. Mr. Henry had “no idea” when he first talked to Ms. Styres about what she might have observed.

[92] In a January 26, 2010 statement to the police, Mr. Martin stated the appellant had hit him with a bottle and was trying to stab him. He continued: “I was talking to Roni [Styres] today and that’s what she said too. She goes, ‘Are you going to tell them about that?’” At trial, Mr. Martin testified that statement to the police was a lie. He testified that he did not recall having a conversation with Ms. Styres on the day he gave his police statement.

[93] Ms. Styres visited Mr. Martin at the hospital a few days after the assault. She denied speaking to him about the incident at that time. She admitted talking with Mr. Martin on a fairly regular basis in the weeks and months after his discharge from the hospital, and they spoke about the incident “here and there.”

[94] Although Ms. Styres denied discussing the incident with Mr. Henry, she admitted she told the police Mr. Henry had given her some information about the events, in a “quiet conversation”.

[95] In those circumstances, there clearly was an air of reality to the possibility of collusion amongst the three identification witnesses. With respect, the trial judge erred in failing to instruct the jury on the issue of collusion.

IX. Summary and Curative Proviso

[96] By way of summary, I conclude the trial judge made three errors of law: (i) he failed to provide a timely corrective instruction regarding the improper references to inadmissible evidence Crown counsel made in his opening; (ii) he failed to instruct the jury properly on the use they could make of the appellant’s Gas Station Statement; and (iii) he failed to instruct the jury on the possibility of collusion amongst the three key Crown witnesses.

[97] The respondent submits that notwithstanding those errors of law, the curative proviso should apply: Criminal Code, s. 686(1)(b)(iii).

[98] I disagree. The errors were not minor in their nature or effect. Their cumulative effect resulted in an unfair trial: the trial judge recognized the prejudicial effect of the inadmissible Second Statement Crown counsel referred to in his opening, yet gave no specific corrective instruction; the only admissible evidence from the appellant before the jury was her Gas Station Statement, but no proper instruction on its use was given; and the Crown’s case turned on the jury accepting the evidence given by the three eye-witnesses, yet the trial judge did not give a necessary instruction on an important aspect of their credibility – possible collusion. In those circumstances, it would not be appropriate to apply the curative proviso.

X. Disposition

[99] For the reasons set out above, I would grant the appeal, set aside the appellant’s conviction, and direct a new trial.

Released: November 17, 2016 (RJS)

“David Brown J.A.”

“I agree Robert J. Sharpe J.A.”

“I agree David Watt J.A.”