Court of Appeal for Ontario
Date: May 14, 2018 Docket: C56598
Judges: Laskin and Pepall JJ.A. and Gans J. (ad hoc)
Between
Her Majesty the Queen Respondent
and
Ivgeny Vorobiov Appellant
Counsel
For the Appellant: Scott Hutchison and Apple Newton-Smith
For the Respondent: Eric Siebenmorgan and Rachel Young
Heard
November 30, 2017
On Appeal
On appeal from the conviction entered on December 20, 2011 by Justice Ian Nordheimer of the Superior Court of Justice, sitting with a jury.
Judgment
Laskin J.A.:
A. Introduction
[1] Glen Davis was a wealthy businessman, an environmentalist, and a philanthropist. On May 18, 2007, he was murdered. He was shot and killed in an underground parking garage in Toronto. He was 66 years old.
[2] Davis' nephew, Marshall Ross, orchestrated the murder. Ross enlisted his friend, Dimitri Kossyrine, to find someone to kill his uncle. Kossyrine recruited two people who worked for him, Jesse Smith and the appellant, Ivgeny Vorobiov.
[3] All four men were charged with first degree murder. Before trial, Smith pleaded guilty to being an accessory after the fact for helping Vorobiov flee the scene of the murder. Kossyrine and Vorobiov were tried together. Ross was to be a co-accused in that trial as well, but pleaded guilty to first degree murder just before it began.
[4] The trial concluded with the jury finding Vorobiov guilty of first degree murder, but unable to reach a decision on Kossyrine. He was later tried for a second time and convicted of first degree murder; his appeal from that conviction to this court was dismissed: see R. v. Kossyrine, 2017 ONCA 388, 138 O.R. (3d) 91.
[5] The case against Vorobiov was compelling. It included: security video footage and an eyewitness placing Vorobiov at the scene of the murder; cellphone records; the evidence of Vorobiov's friend and former brother-in-law, Yuval Klein; Vorobiov's conduct after the murder; intercepted conversations among the various participants; Vorobiov's admissions in his evidence at trial; and the evidence of Smith, who named Vorobiov as the shooter.
[6] In his defence, Vorobiov denied shooting Davis. He admitted that he had agreed to kill Davis for Ross, and that he had brought a gun and silencer to the parking garage on the day of the murder, but he claimed that when he was in the garage, he changed his mind. He said that Smith took the gun from him and shot Davis, after Vorobiov had walked away.
[7] Of the four participants in the murder plot, only Vorobiov and Smith were at the parking garage on the day of the murder. After all the evidence was led at trial, the jury had a simple factual question to answer: who shot Davis, Smith or Vorobiov? The jury was satisfied beyond a reasonable doubt that Vorobiov did.
[8] On his appeal, Vorobiov submits that the trial judge made three errors, the first in his conduct of the trial; the second and third in his charge to the jury:
The trial judge unjustifiably curtailed the defence's cross-examination of Smith and Detective Moreira, a police detective who interviewed Smith.
The trial judge erred by giving a Browne v. Dunn instruction concerning Smith's evidence.
The trial judge erred in his charge on Vorobiov's conduct after the murder by failing to tell the jury his conduct had no probative value.
[9] I would not give effect to any of these three submissions. I would therefore dismiss Vorobiov's appeal.
B. Additional Background
(a) Ross' Motive for the Murder and the Recruitment of Smith and Vorobiov
[10] Ross' decision to have his uncle murdered was fuelled by greed and resentment. Ross ran a business renovating old homes and reselling them, but his business did poorly. Over the years, Davis had generously lent Ross large amounts of money, totalling two million dollars, none of which Ross had repaid. But Ross wanted more. And he resented Davis because though adopted, Davis had ended up with all of the family's money. So Ross decided to speed up what he mistakenly thought would be his inheritance by having Davis killed.[1]
[11] Ross' first attempt in 2005 was unsuccessful. Davis was beaten with a baseball bat and left for dead, but survived. This attempt and the murder two years later went unsolved until November 2008, when one of the perpetrators in the earlier beating, while under arrest for unrelated charges, confessed to his role in the initial murder attempt. His confession led the police to the four suspects in Davis' murder: Ross, Kossyrine, Smith, and Vorobiov.
[12] Ross and Kossyrine initially crossed paths through their respective businesses; Kossyrine often worked on home-building and renovation projects for Ross; and the two men became friends. Smith and Vorobiov became involved in the murder plot through their relationship with Kossyrine; both worked for him, and were also his friends. After the first attempt on Davis' life failed, Kossyrine recruited Smith and Vorobiov to carry out the murder, and Ross persuaded them to do so.
(b) The Scene and Timing of the Murder
[13] Davis was murdered in the P-2 parking level of a building at 245 Eglinton Avenue East in Toronto. He was shot on his way to retrieving his car after having lunch with a friend at a restaurant in the building. The murder occurred at approximately 1:53 p.m.
[14] The building at 245 Eglinton Avenue East is located on the south-east corner of Eglinton Avenue East and Mount Pleasant Road. The building sits between Mount Pleasant Road on the west side and Taunton Road on the east side. It has four entrances and exits to the underground garage: an elevator to the building; a stairwell to Mount Pleasant Road; a stairwell to Taunton Road; and a vehicle ramp to Taunton Road.
[15] On the day of the murder, the Taunton Road stairwell was unlocked and, unlike the other exits, had no security video. Vorobiov was shown in the building's security videos entering and leaving the garage about an hour before and just minutes after the murder. Although Smith was not captured on any of the garage's security footage around the time of the murder, Vorobiov claimed Smith could have come into the garage undetected by using the Taunton Road stairwell.
(c) The Case Against Vorobiov
[16] As I have said, the case against Vorobiov included his own admissions at trial, his conduct after the murder, security video, eyewitness testimony, cellphone records, intercepted conversations, and the evidence of Klein and Smith. The following is a brief list of the key evidence against him:
Vorobiov initially declined Ross' overtures to kill Davis but became interested when Ross offered him more money.
Vorobiov eventually agreed to kill Davis for Ross.
On the day of the murder, Smith and Vorobiov drove to 245 Eglinton Avenue East; Vorobiov brought with him a gun and silencer in his backpack.
Vorobiov intended to kill Davis in the parking garage when Davis came to get his car after lunch; according to Vorobiov's testimony, Smith was to wait in Vorobiov's car and drive Vorobiov away after the murder.
After Smith parked the car on Taunton Road, Vorobiov left the car, and with the gun and silencer in his backpack, went down the Taunton Road vehicle ramp. He went to the P-2 level where Davis' car was parked, and waited for him near the pedestrian stairwell on Mount Pleasant Road, which was the stairwell closest to the restaurant. Security video captured Vorobiov standing by the elevators on the P-2 level at 1:20 p.m.
Security video showed Vorobiov alone, and carrying a backpack, going down the Taunton Road vehicle ramp at 12:52 p.m. Davis was shot at 1:53 p.m.; security video captured Vorobiov, with his backpack, walking up the Taunton Road vehicle ramp alone at 1:55 p.m.
Vorobiov admitted that he was the person captured on the security video.
Smith was not captured by security video during this entire timeframe.
The building superintendent heard two loud bangs shortly after Davis entered the parking garage; he went to investigate and saw Vorobiov walking through the P-1 level and up the vehicle ramp soon after the gunshots; he did not see Smith or anyone else on the P-1 level.
Vorobiov had a cellphone with him but did not make or receive any calls during the entire time he was in the underground garage; in contrast, Smith made and received numerous calls on his cellphone during that time, including many to Ross.
Smith testified that when Vorobiov returned to the car after Davis was shot, he said to Smith: "I killed him".
Immediately after Davis was killed, Smith drove Vorobiov away from the scene of the murder, and then drove to Port Perry; along the way they disposed of the gun, silencer, and backpack.
Vorobiov's close friend and former brother-in-law Yuval Klein testified at trial that Vorobiov "said that he went in and it was done".
Vorobiov and Kossyrine misled the police and tried to hinder their investigation.
(d) Vorobiov's Defence
[17] Vorobiov's defence was that, at the last minute, he decided he couldn't go through with killing Davis, that Smith took the gun from him, and that as he was walking back up the vehicle ramp, Smith fired the fatal shots.
[18] Vorobiov testified that he first went to underground garage to look for Davis' car, which he found on the lower level. He then returned to the car he and Smith were driving, took his backpack, and re-entered the garage by going down the Taunton Road ramp.
[19] About a half hour later, Smith came into the garage and asked Vorobiov what was taking so long. Vorobiov said Davis had not yet appeared and he was glad because he was ready to "walk away". Smith then went to find Davis. Vorobiov was about to leave by the elevator but saw a security camera so he stayed in the garage to wait for Smith. When Smith reappeared and said Davis would be down any minute, Vorobiov said "sorry I am not fucking doing it Jesse". Smith then reached into Vorobiov's backpack, took out the gun and silencer and said "just take the gun and put this on and get it over with". Vorobiov replied "you don't understand. I am not fucking doing it. I know there is a camera. The camera has already seen me".
[20] Vorobiov tried to reach over and take back the gun but Smith pulled back, and Vorobiov was only able to grab the silencer. He then walked away and up the ramp. When he was almost at the top, he heard two loud bangs. He went back to see what was going on. He found Davis dead and saw Smith going through Davis' pockets. He told Smith to "get the fuck out of here", and walked back up the ramp to their car. Soon Smith appeared from the Taunton Road stairwell and they drove off. Smith was driving.
C. The Issues
(1) Did the Trial Judge Unjustifiably Curtail Defence's Cross-Examination of Smith and Detective Moreira?
[21] The day after the murder, Smith flew to Cuba, where his wife and daughter lived. In early April 2009, about a month after Ross, Kossyrine, and Vorobiov had been arrested, Smith flew back to Canada with his family. He was arrested at the airport, charged with first degree murder, and interviewed by the police that evening. Later Smith retained a lawyer and, in May 2010, he gave a second interview to the police. Both interviews were conducted by Detective Moreira.
[22] At the trial, the Crown first called Moreira, then Smith. Both were cross-examined by defence counsel for Kossyrine and defence counsel for Vorobiov (not Mr. Hutchison or Ms. Newton-Smith). The underlying objective of counsel for Vorobiov's cross-examination was to show that the police pushed Smith into giving a limited confession in which he minimized his own involvement in the murder plot and fingered Vorobiov as the shooter. Vorobiov's counsel sought to achieve this objective in two ways: by cross-examining Moreira to show how he used a specific interview technique to extract the narrative that Smith ultimately testified to at trial; and by cross-examining Smith to show how his narrative had changed from his first interview to his eventual trial testimony.
[23] Vorobiov submits that the trial judge unjustifiably and unfairly curtailed both cross-examinations and, by doing so, undermined Vorobiov's defence and the fairness of his trial. Although I have concerns about the trial judge's interventions, on a review of the entire transcript of each cross-examination, I am persuaded that Vorobiov's defence counsel achieved his objective, and that the trial judge's interventions did not undermine Vorobiov's defence or deprive him of a fair trial.
[24] As Major and Fish JJ. said in R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 41:
[T]he right of an accused to cross-examine prosecution witnesses without significant and unwarranted constraint is an essential component of the right to make full answer and defence.
[25] This right is thus essential to a fair trial – so it must be "jealously protected and broadly construed": Lyttle, at para. 44.
[26] In their management of a trial, trial judges do have discretion to intervene if defence counsel abuse the right of cross-examination. That discretion is part of a trial judge's general discretion to manage a trial. Indeed, in R. v. Jordan, 2016 SCC 27, at para. 139, the majority wrote: "Trial judges should make reasonable efforts to control and manage the conduct of trials." Even so, trial judges should give defence counsel wide latitude in the way they conduct their cross-examinations. Simply because the trial judge disagrees with defence counsel's approach or line of questioning does not justify judicial intervention unless the approach or questioning is improper.
[27] Context also matters. As in this case, where defence counsel is cross-examining a key Crown witness, where the credibility of that witness is pitted against the credibility of the accused, and where the stakes are high, as they are in a first degree murder trial, trial judges should intervene only in extreme cases.
[28] Against this background, I turn to an outline of Smith's evolving narrative, the cross-examinations of Moreira and Smith, and Vorobiov's complaints about the trial judge's interventions.
(a) Smith's Evolving Narrative
[29] Smith undoubtedly changed his story between his first police interview in which he admitted he lied, and his second police interview and trial testimony, in which he claimed to be telling the truth.
[30] In his first police interview in April 2009, Smith admitted that he knew what was going on, but did not know what to do about it. He told Moreira that on the drive to Port Perry, Vorobiov was "calm, quiet and didn't say anything". When asked whether Vorobiov had changed his clothes, Smith replied: "I don't remember".
[31] In May 2010, after spending a year in custody, Smith gave a second interview to the police, which was arranged by his lawyer. Smith decided to "improve my chances of not spending the rest of my life in jail" and "correct the lies in the first statement". In his second interview and trial testimony, Smith admitted he drove Vorobiov to the murder scene but now disclaimed any knowledge of what occurred. He said he just waited in the car, while Vorobiov went to a "meeting", without any idea of what Vorobiov intended to do. Smith was now adamant that only after they had driven away, did Vorobiov tell him he had killed Davis. And Smith insisted Vorobiov had changed his clothes on the drive to Port Perry.
[32] Smith's evolving narrative in which he minimized his own involvement in the murder plot was the focus of the defence counsel's cross-examination.
(b) The Cross-Examination of Moreira
[33] Vorobiov's defence counsel began cross-examining Moreira on his interview technique. He was trying to show that Moreira pressured Smith into minimizing his involvement in the murder and giving himself an out. Crown counsel did not object to this line of questioning. But the trial judge did. Toward the end of the first day of cross-examination, the trial judge excused the jury and then questioned the relevance of defence counsel's questioning. He noted that Smith was not on trial, and that defence counsel's questions were better put to Smith.
[34] After a dialogue with counsel, however, the trial judge said he would give defence counsel "a little bit more leeway in the morning". The next morning the trial judge repeated that he would give defence counsel further leeway, though "not a great deal more". Defence counsel then completed his cross-examination without interruption.
[35] I am inclined to agree with Vorobiov that the trial judge should not have intervened. Smith was not on trial, but Vorobiov's defence was that Smith shot Davis. Defence counsel's cross-examination of Moreira was not abusive or excessive. And I know of no rule of evidence that precluded it. Trying to show how the police got Smith to change his story was fair game.
[36] Nonetheless, the trial judge's intervention – though ill-advised – did not undermine Vorobiov's defence. His counsel obtained from Moreira all the admissions he needed to make his case to the jury that the police ultimately "broke" Smith. In particular, Moreira agreed to the following important points:
Moreira began the interview by telling Smith "he thought he did it", and then by asking Smith to explain his role.
At times during the interview, Moreira exaggerated the evidence, an interview technique he used frequently.
Moreira laid out the roles of the others, based on the police's investigation.
The "theme of the interview", according to Moreira, was that the police knew much more about the answers to their questions than Smith thought they did.
Moreira agreed he was giving Smith an opportunity to avoid spending approximately 32 years in jail before obtaining release on parole, and therefore an opportunity to avoid being separated from his daughter for a long period of time.
Moreira told Smith that he knew he had not been forthcoming in his initial interview, and that this was his opportunity to prove he had a minimal role in the murder.
[37] Before this court, Vorobiov fairly agrees that he cannot succeed on this ground of appeal solely on the basis of anything the trial judge did to limit the cross-examination of Moreira. I therefore turn to the cross-examination of Smith.
(c) The Cross-Examination of Smith
[38] During defence counsel's cross-examination of Smith, he put to the witness verbatim many questions and answers from his police interview. He did so for about seven pages of transcript. Again Crown counsel did not object to this way of cross-examining. But again the trial judge did. In the jury's absence, the trial judge told defence counsel he considered this line of cross-examination improper. In the trial judge's view, defence counsel had to establish an inconsistency and put it directly to Smith; he could not put Smith's previous police statements to him.
[39] I do not think the trial judge should have intervened. Crown counsel, who was very experienced, saw nothing wrong with the cross-examination. And in a first degree murder trial, defence counsel should have been given a wide berth when cross-examining the main Crown witness against his client.
[40] But again, I am not persuaded that the trial judge's intervention undermined or prejudiced the defence. After the trial judge intervened, defence counsel continued his cross-examination of Smith without interruption, and obtained the following critical evidence, which laid the foundation for his closing address to the jury in which he argued that the police eventually did "break" Smith:
Smith agreed that the police started to "break" him after the first hour of their "preamble".
Smith admitted that what he said to the police in his first interview was contrary to his plea of being merely an accessory after the fact.
In his first interview Smith admitted he had lied and implicated himself falsely because the police pressured him.
Moreira held out a "life rope" to Smith by giving him an opportunity to explain his "minimal role" in the murder, but Smith lied to the police anyway.
At the time of the second statement Smith knew he was charged with first degree murder and he realized he had to help himself.
(d) Conclusion on This Ground of Appeal
[41] Despite the trial judge's interventions, defence counsel was not ultimately prevented from achieving his objective and obtaining from Moreira and Smith the admissions he needed to advance Vorobiov's defence before the jury. Thus, I conclude that the trial judge's interventions did not undermine Vorobiov's defence or deprive him of a fair trial. I would not give effect to this ground of appeal.
(2) Did the Trial Judge Err by Giving a Browne v. Dunn Instruction Concerning Smith's Evidence?
[42] The rule in Browne v. Dunn (1893), 6 R. 67 (H.L.) dates back to the case by that name decided by the English House of Lords in 1893. The rule is rooted in fairness, principally to a witness whose credibility is challenged on cross-examination and to the party who called the witness. Lord Chancellor Hershell explained the rule at p. 70 of Browne v. Dunn as follows:
[I]t seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain … the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. … [I]f you intend to impeach a witness you are bound, whilst he is in the box, to give him opportunity of making any explanation which is open to him: … that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. [Emphasis added.]
In short, if counsel intends to impeach an opposing witness on a matter, then, in fairness, counsel ought to put the contradictory version to the witness on cross-examination so that the witness has an opportunity to explain.
[43] Over the years, courts have clarified the rule's scope and application. Four clarifications are relevant to this ground of appeal:
A witness need not be confronted with every scrap of contradictory evidence, but should be confronted on contradictory matters of substance the witness has not had an opportunity to explain.
However, even on matters of substance, the witness need not be confronted with contradictory evidence if the witness' view on that contradictory evidence is already apparent.
If the rule is breached, then depending on the circumstances and context, the trial judge has a range of options to rectify the breach.
A trial judge's determination whether the rule was breached, and if so the appropriate remedy, are entitled to substantial deference from an appellate court: see R. v. Zvolensky, 2017 ONCA 273, 135 O.R. (3d) 401, at paras. 134-136.
[44] In the present case, Smith and Vorobiov gave contradictory evidence on an important matter: who bought the gun that was used to murder Davis. Smith, who was called by the Crown, testified that Vorobiov told him Ross had given Vorobiov $5,000 to buy a gun and Vorobiov had gone to Montreal and purchased one. Vorobiov, however, testified that Smith had bought the gun and silencer from someone he knew when he dealt drugs. When Smith was cross-examined, Vorobiov's counsel did not put to him Vorobiov's claim that Smith was a former drug dealer who had used his contacts to buy the murder weapon.
[45] The trial judge concluded that defence counsel's failure to put Vorobiov's claim to Smith when he cross-examined Smith amounted to a breach of the rule in Browne v. Dunn. The trial judge therefore instructed the jury that in considering Smith's evidence, it could take into account instances where Smith did not have the opportunity to give his version of events:
[I]n considering the different versions of the events as told to you by Ivgeny Vorobiov and Jesse Smith, some of the things that Mr. Vorobiov said that Mr. Smith did were not put to Mr. Smith when he gave evidence. As a result, Mr. Smith did not have the opportunity to tell you his response to those events or provide any information or explanation to you that might assist you in terms of deciding whether those events occurred. For example, it was not put to Jesse Smith that he had once been a drug dealer, and that from that past activity he knew someone who lived off Kennedy Road from whom Mr. Vorobiov says that Mr. Smith purchased the gun and the silencer. ...
When considering the evidence of Jesse Smith where it conflicts with the evidence of Ivgeny Vorobiov, you should take into account any instance where Mr. Smith did not have the opportunity to give his version of the events in response to the version of the events related to you by Mr. Vorobiov.
This is a principle of general fairness. It applies to all witnesses. You should take into account any instance in which a witness did not have the opportunity to give his or her version of events in response to what counsel may now be suggesting to you is what occurred. [Emphasis added.]
[46] Vorobiov submits that the trial judge's instruction was unfair and undermined the defence because it suggested Smith had been dealt with unfairly and those parts of Vorobiov's evidence not put to Smith should be disregarded. In support of this submission, Vorobiov makes three points: the Crown never claimed that Vorobiov's counsel had breached the rule; the charge was unnecessary because the matters put to Smith were not central in the case; and if the rule had been breached, the appropriate remedy would have been to address it in the evidence, for example by recalling Smith, and not in the trial judge's charge.
[47] I do not agree with Vorobiov's submissions. Admittedly the Crown did not claim Vorobiov's counsel had breached the rule, but he did express his concern that "there are significant aspects of Mr. Vorobiov's testimony … that I have not heard before". And he asked the trial judge to include the instruction that was given in the trial judge's charge.
[48] Moreover, the trial judge's determination whether the rule had been breached was his decision to make; he was not bound by the Crown's position. And in my view, his determination the rule had been breached was reasonable. Which of the two protagonists, Smith or Vorobiov, had bought the gun, was not a minor manner. It was of central importance. It informed the chief issue at trial, the identity of Davis' shooter and helped explain Vorobiov's and Smith's respective roles in the murder plot. And it was not a matter on which Smith's position was so apparent that giving him an opportunity to explain was unnecessary.
[49] It is true Smith had testified that it was Vorobiov who had purchased the gun and silencer. But he should have had an opportunity to respond to Vorobiov's claim that he was a former drug dealer, with connections who could provide him with access to firearms – particularly as Smith claimed to have played only a minimal, accidental role in the murder.
[50] The trial judge's choice of remedy – to address the breach in his charge – is entitled to deference and I see no basis for appellate interference: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at para. 118. One possible way to address a breach of the rule in Browne v. Dunn is to recall a witness, but it is not the only way. Also, failing to recall a witness does not necessarily bar including a Browne v. Dunn instruction in a jury charge: Quansah, at para. 120; and R. v. Giroux (2006), 210 O.A.C. 50 (C.A.), at para. 48.
[51] Here, Smith could have been recalled, but neither side asked for this remedy. The charge itself was worded in neutral terms. The trial judge did not highlight that the rule had been breached; he did not tell the jury it could disregard or disbelieve those parts of Vorobiov's evidence not put to Smith; and he did not suggest to the jury that Smith's account of who bought the gun should be believed.
[52] To the contrary, the challenged instruction came immediately after the trial judge's Vetrovec warning[2] in which he cautioned the jury about relying on Smith's evidence without independent confirmation of it, in part because Smith had already lied to the police, and had already admitted his involvement in the plot that led to the murder.
[53] I would not give effect to this ground of appeal.
(3) Did the Trial Judge Err in His Charge on Vorobiov's Conduct After the Murder by Failing to Tell the Jury His Conduct Had No Probative Value?
[54] An accused's conduct after the offence in question – now labeled "post-offence conduct" – is circumstantial evidence that may help the trier of fact determine the accused's culpability for the crime. In a jury trial, the trial judge is entitled to instruct the jury it may take into account the accused's post-offence conduct in deciding on the accused's guilt if, based on human experience and logic, the conduct shows that the accused acted in a manner consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person. If, on the other hand, the accused's post-offence conduct has no relevance to the accused's culpability, the trial judge should instruct the jury that the accused's conduct has no probative value and that the jury should not consider it in deciding on the accused's guilt for the offence charged: see R. v. White, [1998] 2 S.C.R. 72; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433; and R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143.
[55] Courts have long recognized that post-offence conduct may be ambiguous and may be misused by a jury. Thus, when a trial judge instructs a jury that it may take into account the accused's post-offence conduct, the trial judge should also instruct the jury that the accused may have an entirely innocent alternative explanation for that conduct, and that the jury should reject any alternative explanation before using the post-offence conduct to make inferences about the accused's culpability.
[56] In this case, the trial judge instructed the jury that in deciding whether Vorobiov shot Davis it could take into account two categories of Vorobiov's post-offence conduct: Vorobiov's and Smith's trip to Port Perry after the murder; and communications between Vorobiov, Kossyrine, Ross, and Smith that the police intercepted in the years following the murder.
[57] In the first category, the trial judge told the jury about the following post-offence conduct: Smith and Vorobiov left the scene of the murder and drove out of the city to Port Perry; along the way they disposed of the gun, silencer, and backpack; Smith changed his clothes and, according to him, so did Vorobiov (which Vorobiov denied doing); and Vorobiov told Klein he had disposed of "everything". In the second category, the trial judge told the jury that in the intercepted calls, the participants discussed, among other things, the police investigation, who might be recognized on the security videos, the creation of a false list of suspects to mislead the police, and the payment of money to Smith and Vorobiov to leave or stay out of Canada.
[58] The trial judge then instructed the jury on the use it could make of Vorobiov's post-offence conduct:
If you find that Mr. Vorobiov actually did what he is alleged to have done after the offence was committed, you must be careful not to immediately conclude that he did so because he was conscious of having committed the offence charged.
To decide the reason for what Mr. Vorobiov did afterwards, you should consider all of the evidence. Of particular importance is evidence that offers any other explanation for this conduct.
You must not use this evidence about what Mr. Vorobiov did afterwards in deciding or helping you decide that Mr. Vorobiov committed this offence unless you reject any other explanation for it.
If you do not or cannot find that Mr. Vorobiov did those things because he was conscious of having done what is alleged against him, you must not use this evidence in deciding or in helping you to decide that Mr. Vorobiov committed the offence charged. On the other hand, if you find that what Mr. Vorobiov did afterwards was because he was conscious of having done what is alleged against him, you may consider this evidence, together with all of the other evidence, in reaching your verdict.
[59] Defence counsel at trial did not object to this instruction or ask for a "no probative value" instruction. On appeal, however, Vorobiov contends that the trial judge's instruction was wrong for two reasons.
[60] Vorobiov's main submission is that his post-offence conduct was not probative of the only live issue before the jury: who shot Davis, Vorobiov or Smith? It was not probative because Smith engaged in the very same post-offense conduct. Therefore, neither Vorobiov's nor Smith's conduct after the murder, especially their trip to Port Perry, could help the jury determine who the shooter was. At most, Vorobiov's post-offence conduct could show his involvement in the murder plot. But he had already admitted his involvement. He was therefore entitled to an instruction to the jury that his post-offence conduct was not relevant to or probative of the question whether he shot Davis, and should not be considered. The trial judge erred in law in failing to give this instruction.
[61] Vorobiov's secondary submission is that, although the trial judge correctly told the jury it could not use Vorobiov's post-offence conduct in deciding whether Vorobiov shot Davis unless it rejected any other explanation, the trial judge erred because he did not instruct the jury on any alternative explanation.
[62] I do not agree with either of Vorobiov's submissions. On his first submission, the probative value of post-offence conduct is case specific. Its relevance or irrelevance depends on the nature of the evidence, the live issues at trial, and the positions of the parties. In this context, if the accused's post-offence conduct is relevant to the accused's culpability for the offence charged, the jury may take it into account in determining the accused's guilt. A "no probative value" instruction is justified only if the accused's post-offence conduct is equally explained by or equally consistent with either the offence charged or some other culpable act – usually another culpable act admitted by the accused.
[63] In this case, the only live issue for the jury to decide was the identity of the shooter. Vorobiov's position at trial was that he intended to murder Davis, but had a last minute change of heart. In other words, he admitted his involvement in the murder plot and his initial agreement to kill Davis, but denied he was the shooter. He claimed, instead, that Smith shot Davis and that he was angry at Smith for doing so.
[64] Do logic and human experience suggest that Vorobiov would have been equally likely to flee the scene of the murder and drive with Smith to Port Perry if either he shot Davis or if he had a last minute change of heart and was angry at Smith for shooting Davis? If the answer to this question is "yes", then the trial judge erred by failing to give the jury a no probative value instruction on Vorobiov's post-offence conduct.
[65] In my view, however, the answer to this question "no". If indeed Vorobiov had a change of heart and was angry at Smith for shooting Davis, then logic and human experience suggest Vorobiov might well have wanted to get as far away from Smith as possible. Instead he did the opposite. He remained at the scene of the murder; he allowed his own car to be used as the getaway car; he travelled with Smith to Port Perry; along the way he and Smith disposed of the gun, silencer and backpack; and then he and Smith spent Davis' cash at the casino in Port Perry. The jury could legitimately infer that Vorobiov's post-offence conduct was far more consistent with the conduct of a person who had shot Davis, than with the conduct of a person, who though planning to kill Davis, had changed his mind and refused to go ahead, and yet knew that his accomplice had done the shooting and was angry at him for doing so.
[66] The jury could have alternatively inferred that Smith's flight to Port Perry with Vorobiov undermined Smith's claim that he did not know in advance Vorobiov intended to kill Davis that day, and that he only helped Vorobiov to get away from the scene of the murder. The jury could have inferred from Smith's flight that Smith was not merely driving the car, but was also the shooter. However, what inferences should be drawn from Smith's and Vorobiov's flight to Port Perry, and the disposal of the gun, silencer, and backpack along the way, were for the jury to decide. The trial judge did not err by not giving a no probative value instruction on Vorobiov's post-offence conduct.
[67] On Vorobiov's secondary submission, Vorobiov is correct that the trial judge did not provide an alternative explanation for his post-offence conduct. The trial judge did not do so because Vorobiov offered no real alternative innocent explanation for his conduct. For example, he did not claim accident or self-defence. He did not offer any explanation for changing his clothes because he denied changing them. Nor did he explain why, despite his anger at Smith, he went back into the car with him, spent the rest of the day with him, and helped him dispose of the gun and silencer and other evidence that, on Vorobiov's version of events, would have tied Smith to the murder.
[68] Vorobiov did claim at trial that in his post-offence discussions he conspired with Kossyrine to lie to the police so that the police would not ask him any questions and would not identify him on the surveillance videos from the garage. I suppose the trial judge could have reviewed that explanation with the jury, though it could hardly have helped Vorobiov.
[69] Even if I am wrong in holding that the trial judge erred by failing to instruct the jury that Vorobiov's post-offence conduct had no probative value, I would apply the so-called "curative proviso" in s. 686(1)(b)(iii) of the Criminal Code. That section states that even where a trial judge errs in law, an appellate court may dismiss the appeal if the error did not cause a "substantial wrong or miscarriage of justice."
[70] One kind of error that invites the application of the proviso is an error that is "minor" because the error relates to a minor aspect of the case, and thus could not have prejudiced the accused or affected the verdict: See R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716.
[71] If the trial judge erred in his instruction on post-offence conduct, the error was minor. The case against Vorobiov turned almost entirely on the security videos, which captured him in the parking garage an hour before and minutes after the shooting, the independent eye witness testimony of the building superintendent, and the absence of any confirmatory evidence Smith was in the parking garage when Davis was shot. The trial judge's instruction on post-offence conduct, even if in error, caused no substantial wrong or miscarriage of justice.
[72] I would not give effect to this ground of appeal.
D. Conclusion
[73] I would dismiss Vorobiov's appeal. The trial judge's interventions in defence counsel's cross-examinations of Smith and Moreira did not undermine Vorobiov's defence or deprive him a fair trial. Nor did the trial judge err in his Browne v. Dunn instruction to the jury or his charge on post-offence conduct.
Released: May 14, 2018
John Laskin J.A.
I Agree. S.E. Pepall J.A.
I Agree. Arthur M. Gans J.
Footnotes
[1] Ross believed he would be named a beneficiary in Davis' will, but, as it turned out, he was not.
[2] A warning about the risks of relying on the unconfirmed evidence of "unsavoury witnesses" – derived from the Supreme Court's decision in R. v. Vetrovec, [1982] 1 S.C.R. 811.