Court of Appeal for Ontario

Date: 2023-05-30 Docket: C67035

Before: Doherty, Harvison Young and Thorburn JJ.A.

Between: His Majesty the King, Respondent and Robert Freedland, Appellant

Counsel: Anthony Moustacalis and Aidan Seymour-Butler, for the appellant Michael S. Dunn, for the respondent

Heard: May 3, 2023

On appeal from the conviction entered by Justice Suhail A.Q. Akhtar of the Superior Court of Justice on March 1, 2019, sitting with a jury.

Doherty J.A.:

Overview

[1] The appellant was convicted, after a trial by judge and jury, of one count of counselling extortion. He was acquitted on two charges of conspiracy to kidnap and extort. The trial judge sentenced the appellant to three years imprisonment. The appellant appeals from conviction only.

[2] At trial, the Crown alleged that the appellant offered to pay a man named Garvin James to help him kidnap several lawyers, who the appellant believed had participated in schemes to defraud him and cheat him out of civil judgments to which he was entitled. According to the Crown’s theory, the plan was to kidnap these lawyers, take them to a secluded farm, record coerced confessions in which they admitted their misdeeds, and then threaten to make the lawyers’ confessions public if the lawyers did not make certain payments to the appellant. The plan never came to fruition.

[3] The police became aware of the plot when they arrested Mr. James on unrelated matters. In statements to the police, beginning almost immediately after he was arrested, Mr. James revealed the details of the plot to kidnap and extort the lawyers. Mr. James told the police that he only pretended to go along with the appellant’s plan, intending to notify the police at the appropriate time. Mr. James believed that providing the police with this unsolicited assistance might prove to be a benefit to him in the operation of his security business.

[4] In his evidence, Mr. James offered details of the plot and described certain things that he and the appellant had done in furtherance of the plot. The Crown led evidence that some of those things had occurred. For example, the evidence established that Mr. James and the appellant did purchase a shotgun together and later bought ammunition. The prosecution also produced a handwritten list containing the names of several lawyers. Mr. James testified that the appellant gave him this list. The appellant acknowledged that he gave Mr. James the list, but provided an explanation for doing so.

[5] However, at least one significant detail in Mr. James’s evidence was contradicted by other evidence. Mr. James testified that he received a large amount of cash from the appellant through another person. This money was to be used by Mr. James to enlist the necessary help to complete the plan. Although Mr. James insisted that the funds were left in his residence, no funds were found, and there was evidence from which it could be inferred that the funds never existed.

[6] In addition to potential problems with the narrative provided by Mr. James, there was also evidence which suggested Mr. James had exaggerated his background in the military and as a private investigator. Certainly, his limited military record hardly showed him in a positive light.

[7] When Mr. James testified against the appellant, he was facing the same charges as the appellant. The Crown withdrew those charges after the appellant’s trial.

[8] The appellant testified. He indicated that he knew Mr. James, but denied that they entered into any agreement with respect to the kidnapping and extortion of lawyers. The appellant admitted that he was angry with a number of lawyers who he believed had cheated him. The appellant went on, however, to testify that he believed that he was about to be vindicated in a CBC exposé and, that after the conduct of the lawyers became public, he would recover money in civil suits against the lawyers.

[9] The jury convicted on the counselling charge, but acquitted on the conspiracy charges. The verdicts indicate that the jury was not satisfied that Mr. James actually agreed with the appellant to commit the crimes, but was satisfied that the appellant attempted to get Mr. James to commit the offences. The verdicts are consistent with the evidence given by Mr. James.

[10] The appellant represented himself at trial. He did, however, have counsel for the purpose of cross-examining Mr. James.

[11] The Crown’s case depended almost entirely on the jury accepting Mr. James’s evidence that the appellant had sought his assistance in kidnapping and extorting the lawyers. Some of his evidence seemed incredible. Mr. James was also an unsavoury witness for a variety of reasons. Even the Crown urged the jury to find that Mr. James was lying about part of his involvement in the plot. The Crown argued that Mr. James had lied to the jury when he told them that he had not actually intended to go through with the conspiracy to kidnap and extort.

[12] The trial judge gave a strong “Vetrovec” warning, coupled with a warning that any “deliberate lie” by Mr. James in his testimony could taint the entirety of his testimony. Nonetheless, the jury believed Mr. James and convicted on the counselling charge.

Issues

[13] The appellant raises four grounds of appeal, [1] and brings a motion to adduce fresh evidence said to be relevant to Mr. James’s credibility. At the hearing, this court called on the Crown to respond to only two of the appellant’s submissions:

• Did the trial judge err in holding that evidence given by the store clerk was not admissible as non-expert opinion evidence?
• Did the trial judge err in failing to instruct the jury on the limited use it could make of Mr. James’s prior consistent statements?

[14] I am satisfied that the appeal must be allowed on the basis that the failure to instruct the jury on the limited use of Mr. James’s prior consistent statements is non-direction amounting to misdirection and is not salvageable by the curative proviso. In light of that conclusion, it is not strictly necessary to address any of the other issues. I will, however, before turning to the prior consistent statements issue, address briefly the appellant’s proposed fresh evidence application and his submission that the store clerk’s non-expert opinion evidence was admissible.

Analysis

The admissibility of the fresh evidence

[15] The appellant seeks to introduce certain conversations on Skype involving Mr. James and at least two other individuals. These communications were recovered by the police in the course of unrelated investigations.

[16] The conversations on Skype occurred almost two years before the investigation had commenced into the appellant’s charges. The conversations had nothing to do with the events that were the subject matter of the appellant’s charges and the trial.

[17] The appellant submits that the content of the Skype communications demonstrates that Mr. James was either involved in drug smuggling, or was attempting to defraud individuals who were involved in drug smuggling. Either way, the conversations showed Mr. James in a bad light. The appellant submits that the conversations disclosing the discreditable conduct by Mr. James would be admissible on the issue of his credibility and reliability as a witness.

[18] The Skype conversations potentially had relevance to Mr. James’s credibility. The contents of those conversations could be put to Mr. James on cross-examination. His answers to any questions about the contents of the Skype conversations could potentially reflect negatively on his credibility. However, the collateral fact rule may well have precluded the appellant from calling evidence to contradict any of the answers given by Mr. James about the content of those conversations: see e.g. Matthew Gourlay et al., Modern Criminal Evidence, ed by Brian H. Greenspan and Justice Vincenzo Rondinelli (Toronto: Emond Montgomery Publications Ltd., 2022), at pp. 383-84; R. v. A.C., 2018 ONCA 333, 360 C.C.C. (3d) 540, at para. 46; R. v. MacIsaac, 2017 ONCA 172, 347 C.C.C. (3d) 37, at paras. 58-59, leave to appeal refused, [2017] S.C.C.A. No. 152; and R. v. C.F., 2017 ONCA 480, 349 C.C.C. (3d) 521, at para. 58.

[19] The appellant offers only the Skype communications as fresh evidence. The messages themselves have no evidentiary value. It is Mr. James’s answers to questions about the content of the Skype messages that could have an impact on his credibility and reliability as a witness. Based on the fresh evidence put forward here, there is no way of knowing what Mr. James would say about the conversations, and how his answers might impact on his credibility or reliability.

[20] In my view, when the cogency of fresh evidence offered on appeal depends on the use of that evidence to impeach a witness’s credibility by cross-examination, this court should not be left to speculate about the potential value of the fresh evidence for cross-examination purposes. The appellant could have sought an order under s. 683(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46, permitting cross-examination of Mr. James on the Skype communications in aid of his application to adduce fresh evidence on the appeal. Had Mr. James been cross-examined, this court would be in a position to make an informed assessment of the potential cogency of any cross-examination of Mr. James on the Skype communications at trial.

[21] The mere possibility that cross-examination on some newly discovered material might impact negatively on a witness’s credibility falls far short of the kind of cogent evidence needed to justify the admission of fresh evidence on appeal. Absent some explanation for the failure to seek to cross-examine Mr. James on the conversations, any suggestion further cross-examination of him on those questions could have affected the result at trial, amounts to speculation.

[22] I would not admit the fresh evidence on appeal. It will, of course, be for the trial judge to determine the admissibility of the Skype communications if those communications are offered as evidence at the new trial.

Was the non-expert opinion evidence inadmissible?

[23] The store clerk, who sold the shotgun to Mr. James and the appellant, testified that, based on his observations and conversations with the appellant before making the sale, the appellant seemed, to the store clerk, to be inexperienced with firearms. In cross-examination, the appellant sought to elicit a further opinion from the store clerk about whether the purchase of a shotgun in certain circumstances would “make sense”. The trial judge interrupted and indicated that the store clerk could not give opinion evidence about whether individuals were, or were not, experienced with firearms. He repeated this instruction in his jury charge.

[24] The appellant submits that the store clerk’s opinion that the appellant appeared to be inexperienced with firearms, based on the store clerk’s observations and conversations with the appellant, was admissible as non-expert opinion evidence. The appellant argues that the opinion offered by the store clerk was a convenient and accurate way for him to describe the cumulative effect of the various observations he made while assisting the appellant and Mr. James. The store clerk’s personal experiences as a firearms salesman allowed him to accurately incapsulate those observations by way of an opinion about the appellant’s apparent level of experience with guns: see e.g. R. v. Graat, [1982] 2 S.C.R. 819, at pp. 835-36; David Watt, Watt’s Manual of Criminal Evidence (Toronto: Thomson Reuters, 2022), at para. 30.01.

[25] The respondent does not take issue with the appellant’s description of the evidentiary rule permitting non-expert opinion evidence. The respondent contends, however, that there is no evidence about the store clerk’s background or experience that would justify allowing him to give the opinion he offered. Furthermore, the respondent argues that the evidence of the store clerk about the appellant’s apparent inexperience with firearms was of no significance in the case. It was never the appellant’s position that he was inexperienced around firearms.

[26] The store clerk’s opinion evidence was admissible. Although he was not asked directly about his experience, it is clear from his testimony that he had considerable experience with customers seeking to purchase firearms. As he explained in his evidence, part of his job involved questioning customers to get a sense of their level of experience and expertise with firearms so as to be able to suggest the most suitable firearm.

[27] Given the store clerk’s experience as a gun salesman, it was open to him to present his observations of the appellant’s behaviour and conduct by way of an opinion as to the appellant’s experience as a gun handler. There was no danger that the jury would have been misled by this evidence. The trial judge erred in instructing the jury to disregard the store clerk’s evidence about the appellant’s apparent lack of experience with firearms.

[28] I am satisfied, however, that the trial judge’s error caused no prejudice to the appellant. The store clerk’s evidence about the appellant’s apparent inexperience with firearms played no role in the case and advanced neither the position of the Crown, nor the defence. The appellant did not testify that he was inexperienced with firearms. He testified that he wanted to learn about shooting from Mr. James, who presented himself as a marksman. It was also not part of the Crown’s case that the appellant was, or was not, experienced with firearms.

[29] Although the trial judge erred in telling the jury that the store clerk’s evidence was inadmissible, the Crown has met its burden to show that the error caused no substantial wrong or miscarriage of justice.

Did the trial judge err in failing to instruct the jury on the limited use of Mr. James’s prior consistent statements?

[30] Mr. James was initially arrested on charges involving his former domestic partner. While sitting in the police vehicle with one of the arresting officers, Mr. James indicated that his life was in danger and he started to talk about his involvement with the appellant and the plan to kidnap and extort the lawyers.

[31] In response to questions from the Crown, the arresting officer proceeded to describe, in detail, the statements made to him by Mr. James. In addition, the Crown asked the officer about the content of a videotaped interview Mr. James had with other police officers the next day. The testifying officer summarized the content of Mr. James’s videotaped statement, again in some detail.

[32] As the officer continued to repeat what Mr. James had said to the other officers on the videotape, the trial judge interrupted to inquire why the officer was giving evidence about the content of Mr. James’s statements. The trial judge then instructed the jury:

[Y]ou’ve heard a lot of things that Mr. James told this officer. You’re hearing them, not because the Crown is adducing them for the truth of their contents but just simply as part of the narrative to assist you in understanding why the police did what they did after receiving certain information. But I think, out of caution’s sake, that account should come from Mr. James’s mouth.

[33] Despite the trial judge’s admonition that “the account should come from Mr. James’s mouth”, Crown counsel elicited further evidence from the police officer about statements made to him by Mr. James. The Crown also elicited evidence that some of the statements had been confirmed by subsequent investigations.

[34] At the morning break, the trial judge repeated his concern about the officer’s recitation of the content of the statement given by Mr. James. The trial judge indicated that he had cautioned the jury about the hearsay nature of the evidence and planned to do so again.

[35] The appellant was not represented by counsel during the police officer’s evidence.

[36] The trial proceeded. There were no further mid-trial instructions relating to the prior consistent statements. Nor did the trial judge, in his final instructions, tell the jury about the limited use it could make of the prior consistent statements. The jury was never told that it could not use consistencies between the content of Mr. James’s statements to the police, as reported by the police witness, and Mr. James’s testimony, to enhance the credibility or reliability of that testimony.

[37] If admissible at all, prior consistent statements can be used only for certain specified purposes: see e.g. R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at paras. 25-40, leave to appeal refused, [2017] S.C.C.A. No. 139; Watt, Manual of Criminal Evidence, at para. 19.08. When prior consistent statements are admitted, the trial judge should make it clear to the jury that a prior statement made by a witness that is consistent with the testimony of that witness does not, in and of itself, make the witness’s testimony more credible: R. v. W.E.G., 2021 ONCA 365, 73 C.R. (7th) 141, at paras. 21-22; R. v. M.P., 2018 ONCA 608, 363 C.C.C. (3d) 61, at paras. 79-80; and R. v. Demetrius (2003), 179 C.C.C. (3d) 26 (Ont. C.A.), at para. 21. Repetition does not enhance credibility: R. v. Austin (2006), 214 C.C.C. (3d) 38 (Ont. C.A.), at para. 33; R. v. Divitaris (2004), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28.

[38] In R. v. Ellard, [2009] 2 S.C.R. 19, at para. 42, the majority observed:

As previously noted, because there is a danger that the repetition of prior consistent statements may bolster a witness’s reliability, a limiting instruction will almost always be required where such statements are admitted. The purpose of such an instruction is to tell the jury that consistency is not the same as accuracy[.]

[39] Crown counsel accepts the authorities set out above. He further submits, however, quite correctly, that the failure to give a limiting instruction referred to in those authorities, is not necessarily fatal: see e.g. R. v. M.A.J., 2015 ONCA 725, 25 C.R. (7th) 187, at paras. 45-47. A submission that the failure to give a limiting instruction with respect to prior consistent statements does not constitute a reversible error, often rests on two overlapping arguments. First, it is sometimes argued that a limiting instruction, while appropriate if given, was not necessary to a proper jury charge in the circumstances of the particular case. This submission is usually premised on the minor role played by the prior consistent statements in the overall evidentiary picture presented at trial: see e.g. R. v. I.W., 2022 ONCA 251, 412 C.C.C. (3d) 542, at para. 44; R. v. J.H., 2020 ONCA 165, at paras. 108, 114 and 126. This argument reflects the well-established principle that jury charges must be assessed from a functional perspective. Not every legal principle engaged in the course of a trial, no matter how peripheral, needs to be the subject of judicial instruction: see e.g. R. v. Calnen, [2019] 1 S.C.R. 301, at para. 8. The appellant bears the burden of demonstrating that non-direction in the particular case amounts to misdirection constituting an error in law.

[40] The second argument sometimes advanced accepts that the non-direction constituted an error in law, but argues that the error caused no substantial wrong or miscarriage of justice. In invoking the curative proviso, the Crown will often point to many of the same factors relied on to support the argument that a limiting instruction was unnecessary. For example, the relative insignificance of the prior consistent statements in the overall evidentiary picture will often figure prominently in the Crown’s no substantial wrong argument: see M.P., at paras. 85-88. In support of the no substantial wrong claim, the Crown will also usually refer to the overall strength of the Crown’s case: see e.g. R. v. Khan, [2001] 3 S.C.R. 823, at para. 26.

[41] The Crown makes both arguments on this appeal. He submits that the limiting instruction was unnecessary and that, in any event, the curative proviso can be applied. Counsel contends that it was significant that the trial Crown did not suggest in argument that the consistency between the content of Mr. James’s statements to the police and his testimony made Mr. James more credible. Nor, says the Crown, was Mr. James asked to repeat in his evidence what he said to the police.

[42] Both scenarios described by the Crown would have made the need for a clear limiting instruction even greater. However, the absence of the compelling features found in the two scenarios put forward by the Crown does not minimize the need for a proper limiting instruction in this case. Juries are repeatedly told to use their common sense and human experience. Some jurors, left unschooled by the trial judge on the use of prior consistent statements, could reasonably conclude that the fact that a witness gave virtually the same version of events upon his arrest as he did months later at trial, would enhance the witness’s credibility.

[43] The Crown also submits that it was the defence that wanted to explore the details of Mr. James’s prior statements. Even if the Crown had not led those details, the defence inevitably would have done so in the course of its cross-examination.

[44] The Crown may be correct. However, if the Crown’s elicitation of Mr. James’s prior consistent statements was premised on the understanding that he would be cross-examined on inconsistencies in those statements, Crown counsel should have at least canvassed with the trial judge the propriety of assuming the nature of the pending cross-examination. The need to raise the issue with the trial judge before adducing the prior consistent statements is particularly important when, as here, the appellant was not represented by counsel at that stage of the trial. In any event, cross-examination on inconsistencies in Mr. James’s prior statements would not, in all likelihood, have removed the need for an instruction to the effect that the consistency between Mr. James’s statements and his testimony could not enhance Mr. James’s credibility.

[45] Finally, Crown counsel submits that the trial judge’s mid-trial instruction to the jury was sufficient. Once again, I must disagree. The instruction spoke in terms of “narrative” and hearsay. The instruction said nothing about the prohibition against using the prior consistent statements to enhance the credibility of Mr. James. That was the real danger in this case.

[46] There are several factors in this case which compel the conclusion that a limiting instruction was necessary as a matter of law. The prior consistent statements figured prominently in the Crown’s case. The police officer gave a detailed account of Mr. James’s statements to the police. That evidence repeated important details in Mr. James’s statements. The detail in the statements and the prominence afforded to the statements in the Crown’s case, combined with the central importance of Mr. James’s credibility in the case, made a proper limiting instruction a legal necessity. Absent that instruction, the jury could well have taken Mr. James’s repetition of his story as a strong indicator of the reliability of that story. Mr. James’s credibility was crucial. Non-direction on evidence which played a prominent part in the Crown’s case, and which was central to Mr. James’s credibility, must be treated as a mis-direction constituting an error in law.

[47] The Crown’s submission based on the curative proviso must also be rejected. For the reasons set out above, the non-direction cannot be described as minor. I do not understand the Crown to suggest that the strength of the Crown’s case would justify the application of the proviso. In my view, it would not.

[48] The importance of Mr. James’s credibility to the Crown’s case, the many references in the evidence to detailed prior consistent statements, and the realistic possibility that reasonable jurors could misuse those prior consistent statements, absent a proper limiting instruction, compel me to conclude that the error was far from harmless. The Crown has not shown that there is no reasonable possibility that the verdict would not have been different had the jury been properly instructed on the use of prior consistent statements.

Conclusion

[49] I would allow the appeal and order a new trial.

Released: May 30, 2023 Doherty J.A. I agree. A. Harvison Young J.A. I agree. Thorburn J.A.

Footnotes

[1] In his factum, counsel for the appellant challenged the adequacy of the trial judge’s “Vetrovec” instruction. He did not pursue that submission in oral argument.