WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 648(1) and (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

648(1) After permission to separate is given to members of a jury under subsection 647(1), no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

(2) Every one who fails to comply with subsection (1) is guilty of an offence punishable on summary conviction.

(3) [Repealed, 2005, c. 32, s. 21]

R.S., 1985, c. C-46, s. 648; 2005, c. 32, s. 21.

Court of Appeal for Ontario

Date: 2018-06-27

Docket: C63270

Judges: Hourigan, Pardu and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Elon Brooks Appellant

Counsel:

• Dirk Derstine, for the appellant
• David Finley, for the respondent

Heard: June 18, 2018

On appeal from the conviction entered on December 2, 2014, by Justice Kofi N. Barnes of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Introduction

[1] The appellant was convicted of first degree murder in relation to the stabbing death of Kevin Pham. He appeals his conviction, asserting three main grounds of appeal. First, the trial judge erred in instructing the jury that they could apply the co-conspirators' exception to the hearsay rule to certain out-of-court statements. Second, the trial judge erred in the admission of Pham's ante mortem statements, which the appellant submits were more prejudicial than probative. Third, the trial judge erred by including in the charge multiple alternate routes to liability, which the appellant argues lacked an evidentiary foundation and resulted in an overly complex charge.

[2] For the reasons that follow, we allow the appeal, set aside the conviction, and order a new trial.

Facts

[3] On December 28, 2011, Pham was stabbed in the stairwell of a Mississauga apartment building. He died as a result of his wounds. A jury convicted the appellant of first degree murder.

[4] At trial, it was undisputed that the appellant, his cousin V.B. (who was a young person at the time of Pham's death), his friend Murtaza Naqvi, and Pham were known to each other and at various times sold narcotics together. By December 2011, however, the relationship among them had deteriorated. Just days before Pham's death, on December 23, the parties got into a confrontation at V.B.'s family's apartment, wherein Pham punched the appellant in the face, then fled.

[5] On the day of Pham's death, the appellant, V.B., and Naqvi had another associate, Eyuael Taera, drive them to an apartment building where Pham was visiting with his friend, Hussein Tala. The trio entered the apartment through a back door, while Taera remained in the vehicle. They encountered Pham in the stairwell. Tala fled from the building, and moments later, the trio and Pham exited the building. The trio left the scene in Taera's vehicle. Pham collapsed in the parking lot and was pronounced dead at the hospital.

[6] According to Naqvi, just prior to heading to Tala's apartment, V.B. suggested that the trio should "check Kevin".

[7] According to Taera, on the drive to Tala's apartment, V.B. asked, "do we have everything?" at which point Taera saw a knife in the appellant's hand. V.B. said, "how are we going to deal with this?" and the appellant replied, "just turn the music up. I'm trying to get into the mood."

The Proceeding Below

[8] The Crown filed written materials in relation to its pre-trial motions regarding certain hearsay statements. The Crown sought rulings on several ante mortem statements of Pham, as well as the above utterances of V.B. The Crown's materials and submissions contemplated admitting V.B.'s statements through Naqvi and Taera, who were Crown witnesses, as part of the narrative. In a footnote, the Crown wrote that it intended to rely on the co-conspirators' exception, but stated that this issue would have to be argued after the conclusion of the evidence at trial:

It is the Crown's position that any of the discussion by the trio (as relayed by the testimony of Taera and Naqvi) back at the Elm Street Apartment and in the car on the way to or from the murder is admissible not just as narrative but specifically admitted for substantive use against Elon Brooks regardless of which of the trio made the statement for two reasons: (1) Elon Brooks was present during these discussions and was a participant in them; and (2) these are statements made in furtherance of a conspiracy and are admissible under the co-conspirators' exception to the hearsay rule. However, these are issues that cannot be litigated until the evidence has been heard at trial once the Crown has established all the pre-conditions. [Emphasis added.]

[9] The issue of whether V.B.'s hearsay statements could be used for the truth of their contents pursuant to the co-conspirators' exception was not addressed during the pre-trial motions.

[10] At trial, V.B.'s statements were led through Naqvi and Taera without objection. At no point during the evidence phase of the trial did defence counsel request that V.B. testify, despite the fact that V.B. was under subpoena and was being regularly bound over.

[11] The appellant testified and denied any plan to kill Pham. He said that he and his associates attended Tala's apartment for unrelated reasons. According to the appellant, Pham lunged at him in the stairwell, prompting Naqvi to intervene with a knife. He testified that in the course of the altercation, Naqvi stabbed Pham.

[12] After both parties finished calling their evidence, during the pre-charge conference, the Crown applied to have the following hearsay statements admitted for the truth of their contents pursuant to the co-conspirators' hearsay exception:

• Naqvi's evidence that after Pham punched the appellant on December 23, either the appellant or V.B. said that Pham "can't get away with that. He just comes and punches him and leaves";

• Naqvi's evidence that V.B. said the trio should "check Kevin";

• Taera's evidence that V.B. said, "do we have everything we need?", at which point Taera saw a knife in the appellant's hand; and

• Taera's evidence that someone in the car gave him directions to Tala's apartment, told him where to park, and said that they were going to enter through the back door.

[13] Defence counsel objected to the admission of V.B.'s hearsay statements for their truth, citing the lack of necessity, and pointing out that this use was never discussed during the pre-trial motions. Defence counsel claimed that she did not object to the Crown eliciting V.B.'s statements through Naqvi and Taera because at that time, she understood that the statements were going in for narrative purposes only. The Crown referred to the footnote in its written materials on the unrelated pre-trial motions to argue that it had indeed indicated that it would be seeking to use V.B.'s statements for their truth.

[14] Counsel for the Crown and the defence proceeded to make substantive submissions on the availability of the co-conspirators' exception. Crown counsel agreed that, pursuant to R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, and R. v. Simpson, 2007 ONCA 793, 231 O.A.C. 19, the co-conspirators' exception may in rare cases yield to the requirements of necessity and reliability. However, the Crown submitted that the burden to show that the exception should yield was on the defence. The Crown argued if defence counsel was going to oppose the use of V.B.'s statements for their truth on necessity grounds, she should have objected when the Crown was still in a position to call V.B.

[15] Defence counsel maintained that the co-conspirators' exception should yield to the necessity requirement in this case. She submitted that circumstances had changed between the preliminary inquiry and the trial concerning V.B.'s willingness to cooperate as a Crown witness. Since the preliminary inquiry, V.B. had pleaded guilty to and been sentenced for manslaughter for his role in Pham's death.

[16] The Crown acknowledged that calling V.B. was a possibility open to it during the trial, but submitted that it was no longer open to it given that it had closed its case. The Crown also referenced its tactical reasons for not calling V.B.:

We don't normally call the cousin of the accused who was also convicted unless we absolutely have to and in this case, we didn't. We had other witnesses to this event and other witnesses who could – who were co-conspirators and who could talk about these statements that were made.

[17] The trial judge released a written endorsement in relation to this issue, which read in its entirety:

The jury shall be charged on the (co-conspirators') common design hearsay exception. In this case it shall be called the Common Design Exception to the Hearsay Rule.

[18] Accordingly, the jury was charged on the co-conspirators' exception and instructed that V.B.'s statements could be used for the truth of their contents if the legal requirements of the exception were met.

[19] At the pre-charge conference, the Crown also sought instructions to the jury on six different routes to liability, contemplating not only that the appellant murdered Pham as principal, but also that he was a party to the killing and thus guilty of murder or manslaughter. Defence counsel objected to the inclusion of the routes to liability other than the appellant as principal on the bases that the Crown was changing its theory of the case, that the alternate routes lacked an evidentiary foundation, and that their inclusion would render the jury charge overly complex and confusing. Ultimately, in addition to the appellant as principal, the trial judge left to the jury routes to first degree murder, second degree murder, and manslaughter pursuant to s. 21(1) (aiding and abetting), and routes to second degree murder and manslaughter pursuant to s. 21(2) (common intention).

Analysis

(a) Hearsay

[20] Despite detailed submissions on the issue, the trial judge did not provide reasons for why he was instructing the jury regarding the co-conspirators' exception to the hearsay rule. In R. v. Tsekouras, 2017 ONCA 290, 353 C.C.C. (3d) 349, Watt J.A. summarized the law regarding the failure of a trial judge to provide reasons for an evidentiary ruling at para. 156:

The robust body of jurisprudence about the duty of trial judges to provide reasons for recording convictions and the scope of appellate review of those reasons for sufficiency does not apply in the same way to evidentiary rulings. Subject to a duty of procedural fairness, there is no general duty to provide reasons for an evidentiary ruling. The failure to give reasons on an evidentiary ruling is not fatal provided that the decision is supportable on the evidence or the basis for the decision is apparent from the circumstances. The importance of the subject-matter of the ruling also has a bearing on whether procedural fairness compels reasons: See, R. v. Woodard, 2009 MBCA 42, 245 C.C.C. (3d) 522, at paras. 22, 24-25.

[21] In the case at bar, the admission of the hearsay was a critical part of the Crown's case. V.B.'s hearsay statements were the only evidence of planning and deliberation to lead to a first degree murder verdict. The appellant has a right to understand the basis for the admission of the evidence. In our view, as a matter of fairness, the trial judge was obliged to provide reasons.

[22] The Crown submits that implicit in the endorsement and the instruction was a finding that the appellant's objection was made too late. It is the Crown's position that the appellant had the onus to object to the hearsay use in a timely manner and that objecting after the Crown closed its case rendered the objection too late. It argues that it was left in a position where if the hearsay was not admitted, it would not have been in a position to call V.B.

[23] In this case, where the Crown provided an ambiguous notice of its intention to rely on the hearsay for its truth, which notice included a reference to litigating the admissibility at the conclusion of the evidence, the Crown had an obligation to argue the admissibility of the evidence before the conclusion of its case if it wished to keep open the possibility of calling V.B. to give evidence, in the event the defence was able to persuade the trial judge that the lack of necessity foreclosed reliance on the exception to the hearsay rule. It was clear that there was a live issue regarding necessity, given that V.B. was available to testify: see Simpson, at para. 36. The defence was not objecting to the admission of the evidence, but to the proposed instruction to be given to the jury of the use it could make of the evidence. The timing of the defence argument, raised at the hearing contemplated by both Crown and defence to deal with the issue of the hearsay evidence, after all of the evidence was heard, was not a basis to reject the defence submission.

[24] We are also not satisfied that the instruction is supportable on the record. There was little evidence that V.B. would have been an uncooperative witness. While he had refused to testify at the preliminary hearing when he was facing charges related to Pham's death, he subsequently pleaded guilty to manslaughter. As part of his guilty plea, V.B. adopted facts under oath that included the utterances the Crown wished to adduce for their truth at the appellant's trial. Moreover, as noted above, in submissions to the trial judge the Crown conceded that calling V.B. as a witness "was a possibility that was open to us", but that the Crown preferred not to call him for tactical reasons only.

[25] In summary, the decision to instruct the jury on the co-conspirators' exception to the hearsay rule is not supportable on the record nor is the basis for the decision apparent from the circumstances. Given the centrality of the hearsay evidence to the Crown's case and the fact that the trial judge provided no reasons for giving the instruction, a new trial must be ordered.

(b) Other Grounds of Appeal

[26] As a result of our disposition on the hearsay issue, it is unnecessary for us to consider the other grounds of appeal. However, we caution that nothing in these reasons should be considered as an endorsement of the trial judge's jury charge regarding routes to liability. We would encourage the judge hearing the retrial of this case, with the assistance of counsel, to focus his or her jury charge on routes to liability that have a firm evidentiary footing and add realistic routes to culpability not covered by other bases.

Disposition

[27] The appeal is allowed, the conviction for first degree murder is set aside, and a new trial is ordered.

"C.W. Hourigan J.A"

"G. Pardu J.A."

"I.V.B. Nordheimer J.A."