Court of Appeal for Ontario

Date: December 11, 2018 Docket: C54611 Judges: MacPherson, Miller and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Troy Johnson-Lee Appellant

Counsel

Lance Beechener and Eva Taché-Green, for the appellant

David Finley and Davin Garg, for the respondent

Heard: October 30, 2018

On appeal from: The convictions entered on May 23, 2009 by Justice Bruce Glass of the Superior Court of Justice, sitting with a jury.

Opinion of the Court

Paciocco J.A.:

Introduction

[1] On September 1, 2006, an altercation between two groups flared up in a bar. When the bar closed, the two groups met outside. Orin Felix, from one of the groups, was fatally stabbed behind a library that was across from a bar. Only moments before, Trevor Hunter, another member of the same group, had been stabbed in the neck in the bar parking lot. Troy Johnson-Lee, who was with the other group, was convicted by jury of second degree murder in the death of Mr. Felix, and of attempting to murder Mr. Hunter.

[2] Mr. Johnson-Lee appeals those convictions claiming that the trial judge erred in his instructions to the jury regarding "post-offence conduct", and in a corrective instruction he provided to the jury.

[3] I would dismiss his appeal for the reasons that follow.

Post-Offence Conduct

[4] Although circumstantial evidence confirming identification testimony provides a formidable case against Mr. Johnson-Lee, post-offence conduct evidence played a large role in his prosecution. Evidence was presented that: in his initial police statement he provided a false alibi involving his niece's mother, Ashley Owen (the "Ashley Owen alibi"); he lied about the jewelry he was wearing on September 1, 2006; and he destroyed the shirt he had been wearing at the bar before attempting to pass off to the police a different shirt as the one he wore to the bar.

[5] Mr. Johnson-Lee argues that the trial judge erred in his jury instructions relating to this evidence.

[6] Mr. Johnson-Lee also testified that he was with Latoya Dejonge at around the time Mr. Hunter was stabbed, a claim that Ms. Dejonge contradicted in reply evidence. During the trial, this was not identified by anyone as post-offence conduct but Mr. Johnson-Lee contends that, in the circumstances, the trial judge erred by failing to instruct the jury to refrain from using Ms. Dejonge's contradiction of his claim as post-offence conduct relevant to his guilt.

[7] I will address each of Mr. Johnson-Lee's post-offence conduct grounds of appeal, in turn.

(1) The No Probative Value Limiting Instruction

[8] First, Mr. Johnson-Lee argues that the trial judge erred by failing to give a limiting instruction that the post-offence conduct had no probative value. During the trial, Mr. Johnson-Lee testified and admitted to having assaulted Mr. Felix before another man, Anthony Bailey, unexpectedly brandished a knife and stabbed Mr. Felix. Mr. Johnson-Lee contends that, given this admission, the post-offence conduct that the Crown relied on to confirm Mr. Johnson-Lee's involvement in the offences charged is equally explained as an attempt by Mr. Johnson-Lee to avoid being implicated in the admitted assault. Because the post-offence conduct can be equally explained on this basis, a "no probative value" limiting instruction should have been given to the jury, as required by R. v. Arcangioli, [1994] 1 S.C.R. 129.

[9] He also argues that even if his evasive conduct is not equally explained by the admitted assault, his evasive conduct is equally consistent with involvement in either the stabbing of Mr. Hunter or the stabbing of Mr. Felix. Since it was open to the jury to reject the Crown theory that one person committed both stabbings, this ambiguity denudes the evidence of probative value as proof of guilt by Mr. Johnson-Lee on either charge.

[10] I do not agree with either submission. I will begin with the latter argument.

[11] The Crown theory was that Mr. Johnson-Lee committed both offences. There was an evidentiary foundation for that theory. The admittedly false Ashley Owen alibi, in particular, was post-offence conduct evidence relevant to both offences. I do not accept, in these circumstances, that the possibility that different people committed the two offences undermines the probative value of proof that Mr. Johnson-Lee took evasive action to distance himself from those offences, particularly when the bulk of the eyewitness testimony supported the theory that one person committed the two offences.

[12] The first "no probative value" argument is no more persuasive. Although there will be uncommon situations where post-offence conduct is ambiguous enough to have no probative value, a no probative value limiting instruction is not required where a jury can reasonably infer that the post-offence conduct is more consistent with the offence charged: R. v. S.B.1, 2018 ONCA 807, at para. 72. This is the case here. The post-offence conduct was not as simple as spontaneous flight from a larger altercation where someone stabbed the victim, as it was in Arcangioli. The evasive conduct here occurred after Mr. Johnson-Lee was aware that the police were investigating a homicide and attempted homicide, and could therefore be logically linked to that investigation. Moreover, the elaborate measures Mr. Johnson-Lee is alleged to have taken are out of proportion to culpability for the admitted assault. In these circumstances a no probative value instruction would have been an error.

(2) The Absence of an Alternative Explanation Instruction

[13] Mr. Johnson-Lee also contends that the trial judge erred by failing to give a cautionary instruction to the jury about the danger in not considering alternative explanations for the post-offence conduct.

[14] In my view, there was no need in this case for a boiler-plate caution to the jury to consider alternative explanations. Mr. Johnson-Lee testified, providing straight-forward, specific explanations for his post-offence conduct. The trial judge instructed the jury to consider these explanations. At best, a generic instruction to consider alternative explanations would have been redundant. At worst, it could be seen as an invitation to consider explanations inconsistent with Mr. Johnson-Lee's testimony, by implication casting doubt on his evidence.

(3) The Absence of an Instruction to Avoid Circular Reasoning

[15] Mr. Johnson-Lee also contends that a cautionary instruction should have been given, warning the jury not to use the post-offence conduct to leap to a conclusion of guilt. A jury will use post-offence conduct to leap to a conclusion of guilt where it examines the post-offence conduct in isolation, infers from it that the accused is acting as a guilty person would, and then uses the inference that the accused is acting as a guilty person would as proof of guilt. Reasoning in this way is circular. The concern is that the inference will drive the conclusion before all of the evidence is considered. The trial judge gave no cautionary instruction to avoid reasoning in this way.

[16] Mr. Johnson-Lee argues that this error was exacerbated because the trial judge also misdirected the jury as in R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 499, by using language that actually invited the prohibited circular reasoning. The trial judge's words do largely track the impugned passage in Hull. Specifically, the trial judge said:

If you find that Troy Johnson-Lee fabricated, in other words, made up that version with respect to Ashley Owen because he was aware that he did what is alleged, you may take that finding into account, along with the rest of the evidence, in deciding whether Crown counsel has proven the guilt of Troy Johnson-Lee beyond a reasonable doubt.

[17] The concern is that this kind of direction can be read as inviting the jury to reason in a circular fashion by using a finding of fabrication to draw an inference of consciousness of guilt – in this case that Mr. Johnson-Lee "was aware that he did what was alleged" – and only then, after drawing that inference, to go on to look at the rest of the evidence.

[18] While the jury charge was not optimal, a jury charge must be viewed functionally when appealed: R. v. Jacquard, [1997] 1 S.C.R. 314, at pp. 320-21. When this is done, in my view no reversible error occurred.

[19] It is convenient to begin with my conclusion that despite similarities in language between the impugned instruction that was provided in this case and the instruction in Hall, no Hall error occurred here.

[20] As Watt J.A. pointed out in R. v. Saleh, 2015 ONCA 23, 319 C.C.C. (3d) 373, at para. 242, even the impugned passage in Hall correctly communicates that before the post-offence conduct evidence is relied upon, it must support the inference that the accused acted as he did because he was conscious of his guilt. In other words, it describes the inference that is a prerequisite to using the post-offence conduct evidence as proof of guilt, even when considered along with all other evidence. In my view, when the impugned passage in this case is considered, in context, that is what the jury would take from it. The jury would see it as an instruction about the prerequisite inference, not as an invitation to draw that inference before considering other evidence.

[21] First, immediately after the impugned passage the trial judge told the jury that if they were unable to find that Mr. Johnson-Lee made up the alibi "because he was aware that he did what is alleged", they were not entitled to use this evidence as proof of guilt. When this passage and the impugned passage are taken together, clear emphasis is being given to the inference to be drawn, not the order in which reasoning should occur.

[22] In addition, this jury was instructed to decide the case "after you have considered the evidence with your fellow jurors and applied the law". They were told the presumption of innocence stays "throughout the case" and that the Crown had the burden of proof "[f]rom start to finish", and that they should decide Mr. Johnson-Lee's guilt "at the end of the case, after considering all the evidence". They were told to "consider … all the evidence presented during the trial", that it was their duty to consider all of the evidence, and that it was their "job … to decide what conclusions you will reach based upon the evidence as a whole, both direct and circumstantial."

[23] In this context, when the impugned passage is viewed functionally, the jury would not have treated it as an invitation to engage in the prohibited, circular reasoning. No Hall error occurred.

[24] Nor, was the failure by the trial judge to provide an explicit caution to the jury to avoid circular reasoning fatal. As indicated, the charge as a whole emphasized the jury's obligation to consider the evidence as a whole before inferring guilt.

[25] Moreover, the proper inference available to the jury was simple and obvious, reducing the risk that the evidence would be used improperly. The only contested issue in the case was identity. The trial judge's instruction to consider whether Mr. Johnson-Lee fabricated the alibi "because he was aware that he did what is alleged" would have been understood by the jury, in that context, as referring to his identity as the assailant. The jury would have understood that they were being invited to infer that Mr. Johnson-Lee made up the alibi to hide his involvement.

[26] Finally, defence counsel made no objection to the instruction given. This may well have been a tactical decision to avoid inviting attention to the inculpatory inferences that the elaborate attempts by Mr. Johnson-Lee to distance himself from the investigation invited. I would not give effect to this ground of appeal.

(4) The Failure to Correct the Concocted Alibi Submission

[27] Mr. Johnson-Lee argues that the trial judge erred by failing to correct the Crown's "improper" closing submission that Mr. Johnson-Lee "concocted" his testimony that he was with Ms. Dejonge outside of the bar.

[28] The context is important to this ground of appeal.

[29] During the trial, Mr. Johnson-Lee testified and acknowledged that the Ashley Owen alibi that he provided to the police was false. In his testimony he offered a new account of how he got to, and ultimately left the bar.

[30] He said that a woman named "Latoya", his friend Ryan Daley's girlfriend, drove him to the bar in a blue Honda Accord. Mr. Daley and Daniel Allen were also in the car. When the bar closed, he exited the bar with this same group, along with Mr. Bailey. He, Ms. Dejonge and Mr. Daley turned left and stood on the sidewalk about five feet from the door, while Mr. Bailey and Mr. Allen went right.

[31] Other friends joined Mr. Johnson-Lee while Ms. Dejonge remained standing beside him. While members of that group were talking amongst themselves, a scuffle broke out in the parking lot. The parking lot was next to the sidewalk where Mr. Johnson-Lee's group was standing.

[32] Mr. Johnson-Lee was watching the parking lot fight. Mr. Bailey was involved, and appeared to strike someone in the head with a bottle. Mr. Bailey then ran with other young men across the street to the library. At that point, Mr. Johnson-Lee decided to follow Mr. Bailey, and began to fight with Mr. Felix. Others joined in.

[33] After Mr. Johnson-Lee was distracted from the fight, Mr. Bailey suddenly stabbed Mr. Felix and then chased Mr. Felix while brandishing a knife. Mr. Johnson-Lee testified that he then ran back to the parking lot and climbed into Ms. Dejonge's blue Honda Accord and she drove him and several others back home. He learned later that Mr. Felix had died.

[34] When Crown counsel cross-examined Mr. Johnson-Lee, she sought further details about Mr. Johnson-Lee's time with Ms. Dejonge. However, she never challenged Mr. Johnson-Lee's claim about being with Ms. Dejonge on the night in question.

[35] Despite this, the Crown called Ms. Dejonge as a reply witness. Ms. Dejonge testified that she walked to and from the bar that night, did not own or have access to a blue Honda Accord, was not Mr. Daley's girlfriend, did not know Mr. Johnson-Lee, had not driven him or his friends anywhere, and had not been with Mr. Johnson-Lee outside of the bar after it closed.

[36] During her closing address to the jury, Crown counsel placed great significance on Ms. Dejonge's contradictions of Mr. Johnson-Lee's testimony. She said it was proof that Mr. Johnson-Lee concocted a false story based on the security camera videos, in which Ms. Dejonge could be seen at the bar with Mr. Daley. Crown counsel then said with respect to Mr. Johnson-Lee's evidence about Ms. Dejonge: "Mr. Johnson-Lee is providing yet another false alibi like he did when he told the police that he was with Ashley Owen at the bar that night."

[37] Shortly after, Crown counsel alluded again to the Ashley Owen lie "that he told … to cover up for his own crimes." Crown counsel then stated that Mr. Johnson-Lee had two years to come up with the testimony he gave, including his testimony about Ms. Dejonge. She went on to urge that this was not a minor lie, but a significant one:

I mentioned it right at the beginning of this closing, she is the new alibi. She is purportedly one of [the] people standing outside of the bar chit-chatting for ten minutes while Trevor Hunter is getting killed. Sorry, stabbed. While Trevor Hunter is getting stabbed he is there with her. She's more than just a ride to the bar. This is more than just a simple lie, ladies and gentlemen. This is a new concocted alibi. That's what this is.

[38] Mr. Johnson-Lee urges that by referring to Ms. Dejonge as the "new concocted alibi" and by equating Ms. Dejonge's contradiction of Mr. Johnson-Lee's testimony with the false Ashley Owen alibi, Crown counsel was inviting the jury to infer that, like he did with the false Ashley Owen alibi, Mr. Johnson-Lee concocted his testimony regarding Ms. Dejonge in order to hide his guilt of the offences charged. In other words, Crown counsel was asking the jury to use it as proof of guilt.

[39] There is no question that although she did not say this overtly, Crown counsel's comments left the suggestion that Mr. Johnson-Lee's testimony regarding Ms. Dejonge could be used as proof of his guilt. In my view, it was not so much the use of the phrase "concocted alibi", as it was her remark that this is "more than just a simple lie" and her comparison of Mr. Johnson-Lee's testimony regarding Ms. Dejonge to the false Ashley Owen alibi, which was available as proof of guilt.

[40] Yet, Mr. Johnson-Lee contends that the law would not permit his testimony regarding Ms. Dejonge to be used as post-offence conduct in this way. He argues that it is not appropriate to infer that the accused has "concocted" a story to hide his guilt, unless there is "independent evidence of fabrication": R. v. O'Connor (2002), 62 O.R. (3d) 263 (C.A.). He maintains that since there is no independent evidence that he fabricated his account about being with Ms. Dejonge, the invitation extended by Crown counsel to the jury to use Ms. Dejonge's contradiction of his testimony as proof of guilt was contrary to law. He submits that the trial judge was obliged to instruct the jury that they were not to use his testimony regarding Ms. Dejonge as post-offence conduct indicative of guilt, and the trial judge erred by failing to do so.

[41] I do not agree that Mr. Johnson-Lee's testimony regarding Ms. Dejonge is incapable in law of supporting an appropriate post-offence conduct inference. The admonition in O'Connor to refrain from inferring guilt from disbelieved evidence absent independent confirmation of fabrication is not a technical corroboration requirement. It is a safeguard, calling for independent and meaningful support for a finding of concoction before an inference of guilt is invited to be drawn from disbelieved exculpatory evidence. In the circumstances here, that standard was met.

[42] First, there was a solid foundation linked directly to Mr. Johnson-Lee's testimony for disbelieving what he was claiming: Ms. Dejonge flatly contradicted Mr. Johnson-Lee's assertion that he was with her when Mr. Hunter's stabbing would have occurred. Independent of that, this was also a new exculpatory account by Mr. Johnson-Lee about where he was at the time of Mr. Hunter's stabbing, offered in place of an exposed, prior false alibi about where he was at the time of Mr. Hunter's stabbing. Finally, by its nature, if Mr. Johnson-Lee's testimony regarding Ms. Dejonge was a lie, it was an exculpatory lie, entirely capable of supporting a logical inference that he told this lie conscious of his guilt in order to avoid being implicated in Mr. Hunter's stabbing. In my view, these features together amount to sufficient independent confirmation that Mr. Johnson-Lee's testimony regarding Ms. Dejonge was fabricated to avoid guilt. This satisfies the O'Connor principles.

[43] Of course, before inviting an inference of guilt from what it believes to be post-offence conduct evidence, the Crown should first pass its intention by the trial judge for a ruling that the evidence is admissible for that purpose. This should have happened here, but did not. In the absence of such a ruling, the Ashley-Owen alibi evidence was not properly available as proof of guilt. However, even though the trial judge failed to directly instruct the jury not to use this evidence to draw an inference of guilt, this is not a case where the jury was apt to do so.

[44] It is important to recognize that Crown counsel did not expressly invite the prohibited inference. The risk at play was that the jury would infer from what the Crown said that it could do so. In this context, what the trial judge did say was sufficient to remove that risk.

[45] Specifically, when he summarized the position of the Crown, the trial judge stated that the Crown's position was that Ms. Dejonge's contradiction of Mr. Johnson-Lee's account meant that "[h]is version deserves no weight whatsoever." This is a permissible inference about credibility rather than an impermissible inference of guilt. In contrast, when the trial judge instructed the jury on the Ashley Owen alibi he told them it could be used as post-offence conduct evidence supporting an inference of guilt. In my view, the jury would not have missed the contrast.

[46] For these reasons, as well as the failure by defence counsel to object to the absence of a warning, I would dismiss this ground of appeal.

The Corrective Instruction

[47] Defence counsel argued that Mr. Johnson-Lee was being truthful about Ms. Dejonge and therefore suggested that Ms. Dejonge was lying when she claimed that she did not know him. To advance this position defence counsel challenged the jury to ask itself how Mr. Johnson-Lee could have known that Ms. Dejonge's name was Latoya, if he was lying and she was telling the truth. Defence counsel had no evidentiary basis for suggesting that the only way Mr. Johnson-Lee could have known Ms. Dejonge's name was through his prior familiarity with her, yet she asked the jury to draw that inference.

[48] Crown counsel, aware that Ms. Dejonge's name was included in the disclosure provided to Mr. Johnson-Lee long before the trial, argued that defence counsel had misled the jury by suggesting that Mr. Johnson-Lee had no other way of knowing her name than having previously known her. Defence counsel checked and confirmed to the court that a statement from Ms. Dejonge was in fact included in the disclosure.

[49] However, defence counsel assured the trial judge, from the bar, that neither she nor Mr. Johnson-Lee had seen Ms. Dejonge's statement in the disclosure material before he testified.

[50] The Crown was prepared to accept this as true but argued that the defence submission still required correction because it was nonetheless misleading. There are other places where Mr. Johnson-Lee could have learned Ms. Dejonge's name, including at the bar when she was with Mr. Johnson-Lee's friend Mr. Daley. Crown counsel offered to draw this to the jury's attention in her submissions in order to remedy the misleading impression defence counsel had left.

[51] The trial judge nonetheless concluded that, given Ms. Dejonge's name was in the disclosure, there was a possibility that Mr. Johnson-Lee could have learned her name that way. The jury should know this. He decided ultimately that he would correct the problem himself. He issued a "corrective instruction" directing the jury that it was an agreed fact that "Troy Johnson-Lee has been in the possession of Latoya Dejonge's statement for more than a year in his disclosure package."

[52] The Crown then made her closing submissions to the jury. She brought up the disclosure that had been made, and argued: "And that's the other way he could have known the name. Make no mistake."

[53] Mr. Johnson-Lee claims that the trial judge's corrective instruction was unfair and prejudicial, undermining the fairness of the trial and thereby causing a miscarriage of justice. He urges that not only did the correction go farther than required, it created the misleading impression that Mr. Johnson-Lee had personally viewed the disclosure. He argues that this undermined the integrity of defence counsel in the eyes of the jury. They could not fail to conclude that she had urged them to find that there was no way Mr. Johnson-Lee could have known the name Latoya other than through prior familiarity, even though she knew that Mr. Johnson-Lee had access to Ms. Dejonge's name through disclosure.

[54] Mr. Johnson-Lee argues that the unfairness of the corrective instruction was aggravated because the Crown violated the rule in Browne v. Dunn (1893), 6 R. 87 (H.L.) by not confronting Mr. Johnson-Lee with Ms. Dejonge's claim that she was not with him and did not know him.

[55] In support of the unfairness submission, Mr. Johnson-Lee has also brought an application to admit fresh evidence confirming that Mr. Johnson-Lee had not learned Ms. Dejonge's name from the disclosure. He told his trial lawyer about Ms. Dejonge before the disclosure was received.

[56] Finally, Mr. Johnson-Lee argues that it was an error of law for the trial judge to invite the jury to infer that Mr. Johnson-Lee tailored his evidence to the Crown disclosure.

[57] It is convenient to consider the arguments by first addressing the Browne v. Dunn submission, the fresh evidence, and the error of law submission. I will begin with the latter.

(1) The Error of Law Submission

[58] It is generally improper for a prosecutor to suggest either during cross-examination, or in closing remarks, that the testimony of the accused has been scripted using disclosure: R. v. Bouhsass (2002), 62 O.R. (3d) 103 (C.A.), at para. 12; R. v. Peavoy (1997), 34 O.R. (3d) 620 (C.A.), at p. 625. Permitting this would convert a constitutional right into a trap, and raise concerns about the right to silence: R. v. John, 2016 ONCA 615, 133 O.R. (3d) 360, at paras. 60-61, leave to appeal to S.C.C. refused, [2017] S.C.C.A. No. 101.

[59] However, questions relating to disclosure are not always prohibited. In R. v. White (1999), 42 O.R. (3d) 760 (C.A.), for example, the manner in which the accused testified raised the possibility that the jury would use phone records admitted into evidence as confirming his testimony. Cross-examination showing that the accused had access to those phone records through disclosure before testifying was therefore appropriate. No allegation of tailoring was being made. The cross-examination was designed to expose a source of knowledge that had fallen into issue.

[60] Even though this case involves submissions and not cross-examination, it is similar. Here the disclosure was not mentioned to suggest that Mr. Johnson-Lee tailored his evidence to fit the disclosure. It was referred to for the much more benign purpose of identifying an alternative source of relevant information for Mr. Johnson-Lee. While this purpose, on its own, may not always justify referring to disclosure, in this case it was defence counsel who made Mr. Johnson-Lee's knowledge of the name Latoya an issue. Mr. Johnson-Lee is hardly in a position to complain that information he made relevant by the tactics his counsel employed was relied upon.

[61] No legal rule was violated in this case.

(2) The Browne v. Dunn Submission

[62] In my view, Browne v. Dunn was violated when the Crown failed to confront Mr. Johnson-Lee with Ms. Dejonge's claims that she was not with him outside of the bar, did not drive him there or back, and did not even know him. This violation raises concerns about the propriety of the Crown calling Ms. Dejonge as a reply witness.

[63] Yet no Browne v. Dunn objection was raised by Mr. Johnson-Lee's trial counsel, and no objection was made to Ms. Dejonge testifying in reply. Mr. Johnson-Lee does not now raise these as independent grounds of appeal. He does argue, however, that the Crown's failure to confront him in cross-examination with Ms. Dejonge's claims aggravated the unfairness of the corrective instruction because Mr. Johnson-Lee was left with no opportunity to respond.

[64] In my view, the failure to comply with Browne v. Dunn had no bearing on the corrective instruction. The issue of how Mr. Johnson-Lee could have learned Ms. Dejonge's name came up for the first time during the closing submissions of defence counsel, after Mr. Johnson-Lee's cross-examination was completed. There is no reasoned basis for believing that, had Mr. Johnson-Lee been confronted with Ms. Dejonge's claims while he was testifying this would have led Mr. Johnson-Lee to explain that he had not learned her name from the disclosure.

(3) The Fresh Evidence

[65] The fairness of the exercise of a trial judge's discretion in providing a corrective instruction is to be evaluated based on the information available to the trial judge at the time. The fact that it proved to be the case that Mr. Johnson-Lee knew Ms. Dejonge's name before disclosure was received adds little in examining the fairness of the trial judge's decision, since that fact was not known to the trial judge when he exercised his discretion.

[66] Moreover, it is important not to lose sight of the context when considering the effect of this fresh evidence. Defence counsel invited the jury to accept its speculative inference that Mr. Johnson-Lee's prior familiarity with Ms. Dejonge was the only possible source of his knowledge of her first name. The trial judge's corrective instruction was offered to remove the unfairness of that invitation by showing another possible source of information. It was not offered as proof of how Mr. Johnson-Lee actually learned her name. Showing now that Mr. Johnson-Lee did not actually learn Ms. Dejonge's name from the disclosure does not change the fact that, at the time of the trial, it was possible that he had learned her name from the disclosure.

[67] In my view, the fresh evidence adds little.

(4) Did the Trial Judge's Exercise of Discretion Render the Trial Unfair?

[68] A trial judge's discretion to give a corrective instruction is to be given deference. In evaluating the choice the trial judge made, it is important to bear in mind that, although he was entitled to do so, the trial judge was not bound to accept defence counsel's assurance from the bar that neither she nor Mr. Johnson-Lee had seen the disclosure. As I have already indicated, on the information before the trial judge, defence counsel had challenged the jury with the speculative suggestion that the only way Mr. Johnson-Lee could have known Ms. Dejonge's name was prior familiarity, when the Crown had in fact furnished Mr. Johnson-Lee, through his lawyer, with disclosure that contained Ms. Dejonge's name.

[69] In my view, however, the trial judge should not have used the possibility that Mr. Johnson-Lee had learned Ms. Dejonge's name from "disclosure" to neutralize defence counsel's invitation to the jury to speculate. Doing so created the risk that the credibility of defence counsel would be damaged in the eyes of the jury. I agree with Mr. Johnson-Lee on this point. The jurors might well have concluded that they were being manipulated through defence counsel's suggestion that Mr. Johnson-Lee could only have learned Ms. Dejonge's name from prior familiarity, even though defence counsel knew full-well that he could have obtained the name from disclosure. The trial judge did not have to engage this risk. He could simply have told the jury to disregard the defence submission because it was not grounded in evidence. Or he could have left it to the Crown to point out the common sense possibility that Mr. Johnson-Lee learned Ms. Dejonge's name while at the bar.

[70] I also agree that the wording of the corrective instruction went beyond what was agreed. Defence counsel admitted Ms. Dejonge's name was in the disclosure. She did not admit that Mr. Johnson-Lee had seen that disclosure. Indeed, she denied he had, and there was no proof that he had. Yet the wording of the corrective instruction was apt to suggest to the jury that Mr. Johnson-Lee had personally seen this material. This impression would have been made worse by Crown counsel's submission, when inviting the jury to consider disclosure as a possible source of his knowledge, that they should "[m]ake no mistake."

[71] For those reasons, the exercise of the trial judge's discretion was unfortunate. The material question, however, is whether it rendered the trial unfair. "If an error deprives the accused of a fair trial, it constitutes a miscarriage of justice within the meaning of s. 686(1)(a)(iii)" and a reversible error will have occurred: R. v. Arradi, 2003 SCC 23, [2003] 1 S.C.R. 280, at para. 39.

[72] A court of appeal should carefully weigh the whole of the circumstances of the case in determining whether the trial has been rendered unfair: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 72. However, the trial cannot be held to a standard of perfection, provided it remains fair in reality and in appearance: Khan, at para. 72.

[73] There is no limit on the particular type of error that will constitute a miscarriage of justice: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 541; Khan, at para. 74. An error or misconduct that could well have affected the jury's assessment of guilt or innocence will suffice: Reference re Milgaard (Can.), [1992] 1 S.C.R. 866, at p. 873. So, too, will conduct that is "so egregious so as to bring the administration of justice into disrepute or to lead reasonable people to believe that the appearance of justice ha[s] been undermined": R. v. Spiers, 2012 ONCA 798, 113 O.R. (3d) 1, at para. 27. These are the relevant fair trial inquiries for consideration in this case. Applying those considerations, no miscarriage of justice can be found.

[74] First, it is clear, in my view, that this episode would have had no impact on the jury verdict reached. Even though this was an identification evidence case prosecuted in the absence of line-up identifications, the case against Mr. Johnson-Lee was formidable. Credible and reliable eyewitnesses to the stabbings offered discerning descriptions of the stabber of each victim that fit only Mr. Johnson-Lee amongst all of the people in the bar where the confrontation began. Any points of distinction were negligible. There was evidence that Mr. Johnson-Lee had been involved in that earlier confrontation, and, prior to the stabbings, had expressed regret that he had not broken a bottle over the head of one of the members of the victims' group. He had Mr. Felix's blood on his pants and the forensic examination of the knife, while not supporting the Crown's case, could not rule out the Crown's theory. Mr. Johnson-Lee's credibility did not bear up to the evidence in the case, and he concocted the Ashley Owen alibi for both stabbings. There was evidence that he concocted a lie about his appearance and actively attempted to mislead the police about the shirt he was wearing. In this context, there is no realistic possibility that the outcome of this case turned on the jury's belief that Mr. Johnson-Lee learned the name Latoya from disclosure. Nor is there any basis for believing that his conviction could be related to distrust of defence counsel's submissions that may have been caused by the corrective instruction. Beyond any peradventure, Mr. Johnson-Lee was convicted because of the legitimate force of the evidence.

[75] Nor was the conduct of the trial judge sufficiently egregious, or its consequences to Mr. Johnson-Lee sufficiently prejudicial, to bring the administration of justice into disrepute or to undermine the appearance of justice. The trial judge made an unfortunate judgment call late in the trial in response to an unfortunate tactical choice made by defence counsel, in an otherwise fairly conducted trial. And while the trial judge's choice had the undesirable effect of discrediting defence counsel, this was an isolated incident brought about in an attempt to correct counsel's own indiscretion, and its effect was tempered by the appearance that she had joined in making the correction.

[76] In my view, the trial was not rendered unfair by the unfortunate corrective instruction, and there was no miscarriage of justice.

Conclusion

[77] I would dismiss the appeal.

Released: December 11, 2018 ("J.C.M.")

"David M. Paciocco J.A."

"I agree. J.C. MacPherson J.A."

"I agree. B.W. Miller J.A."