R. v. Arcangioli, [1994] 1 S.C.R. 129

Giuseppe Arcangioli Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Arcangioli

File No.: 23380.

1993: November 12; 1994: January 27.

Present: Lamer C.J. and Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

Criminal law ‑‑ Evidence ‑‑ Third party's propensity for violence ‑‑ Charge to jury ‑‑ Accused charged with aggravated assault following a stabbing ‑‑ Defence advancing theory that stabbing committed by third party ‑‑ Evidence adduced by defence indicating that third party had stabbed another person earlier that evening and had been previously convicted of armed robbery ‑‑ Whether trial judge properly instructed jury on use to be made of defence evidence concerning third party's propensity for violence ‑‑ Whether curative provision of Criminal Code should be applied ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(b)(iii).

Criminal law ‑‑ Evidence ‑‑ Consciousness of guilt ‑‑ Flight from crime scene ‑‑ Charge to jury ‑‑ Accused charged with aggravated assault following a stabbing ‑‑ Accused admitted punching victim but testified that stabbing was committed by third party ‑‑ Whether trial judge properly instructed jury on inferences to be drawn from accused's flight from crime scene ‑‑ Whether curative provision of Criminal Code should be applied ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(b)(iii).

The accused was charged with aggravated assault in connection with a stabbing which occurred during a fight. At trial, the accused admitted punching the victim several times but testified that he fled when he saw S, another person on the scene, stab the victim in the back. The defence adduced evidence connecting S with a previous stabbing, which had occurred a short distance away earlier that evening, and evidence showing that S had a criminal record for break and enter, theft, breach of probation, and armed robbery during which a gun and a knife were wielded. In his testimony, S denied both stabbings and being armed during the armed robbery. Several witnesses to the fight corroborated the accused's version of the events but it was the Crown's theory that those witnesses, all of whom were friends of the accused, fabricated their stories in order to place the blame for the stabbing on S. The trial judge instructed the jury that S's criminal record was relevant to the issue of his credibility as a witness. He also instructed the jury that the evidence of the accused's flight was a factor to be considered in reaching their verdict but that this evidence was not conclusive as innocent people sometimes flee the scene of a crime. Defence counsel at trial did not object to the trial judge's charge on these issues. The accused was convicted of aggravated assault and his conviction was affirmed by a majority of the Court of Appeal.

Held: The appeal should be allowed and a new trial ordered.

The trial judge failed to charge the jury properly with respect to the use that could be made of the evidence adduced by the accused concerning S's bad character or propensity for violence. The evidence of S's previous conviction for armed robbery and his connection with the first stabbing incident was sufficiently probative to warrant its admission and use for the purpose of establishing that S had wielded a knife in the past and was therefore likely to have stabbed the victim. The trial judge's instructions that the jury could consider S's criminal record in assessing his credibility as a witness, however, may have misled the jury into supposing that S's character evidence could not be used as proof of his disposition. To avoid any confusion in this case, the trial judge should have also instructed the jury that if, and to the extent that, they accepted the evidence of S's character, they were entitled to consider such evidence in support of the defence theory that there was a reasonable doubt S, rather than the accused, stabbed the victim. On the facts of this case, the jury might not have known that the evidence could be relied upon for that purpose. Although defence counsel did not raise this issue before the trial judge, the defence theory arose naturally and clearly out of the evidence and the accused was entitled to have the jury charged with respect to it. If properly instructed, it is possible that the jury would have had a reasonable doubt as to the accused's guilt.

As well, the trial judge failed to instruct the jury properly regarding the use that could be made of the evidence of the accused's flight from the scene. To be useful, flight must give rise to an inference of consciousness of guilt in regard to a specific offence. Where an accused's conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence. Any inference to be drawn from flight disappears when an explanation for such flight is available. Here, the jury should have been warned against drawing any inference from the fact of flight. The trial judge's direction that even innocent people sometimes flee the scene of a crime was insufficient in light of the fact that the accused admitted that he had committed common assault by punching the victim, and thus had reason to flee. The trial judge should have instructed the jury that because his flight was equally consistent with common assault and with aggravated assault, it could not support an inference of consciousness of guilt with respect to the latter. Since she did not charge the jury in those terms, there is a danger that the jury may have wrongly inferred from the evidence that the accused fled because of his guilt in stabbing the victim.

Section 686(1)(b)(iii) of the Criminal Code is inapplicable in the present case. There is a possibility that, but for the trial judge's errors, the jury's verdict would have been different. Defence counsel's failure to object to a jury charge is not determinative of the applicability of the Code's curative provision.

Cases Cited

Applied: United States v. Myers, 550 F.2d 1036 (1977); referred to: R. v. Scopelliti (1981), 1981 CanLII 1787 (ON CA), 63 C.C.C. (2d) 481; R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 23 C.C.C. (2d) 160, aff'd 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824; R. v. Williams (1985), 1985 CanLII 113 (ON CA), 18 C.C.C. (3d) 356; R. v. Yaeck (1991), 1991 CanLII 2732 (ON CA), 68 C.C.C. (3d) 545, leave to appeal refused, [1992] 1 S.C.R. xii; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577; R. v. Kendall (1987), 1987 CanLII 180 (ON CA), 35 C.C.C. (3d) 105; R. v. Squire, 1976 CanLII 26 (SCC), [1977] 2 S.C.R. 13; MacAskill v. The King, 1931 CanLII 58 (SCC), [1931] S.C.R. 330; R. v. Chambers, 1990 CanLII 47 (SCC), [1990] 2 S.C.R. 1293; Gudmondson v. The King (1933), 1933 CanLII 415 (SCC), 60 C.C.C. 332; Colpitts v. The Queen, 1965 CanLII 2 (SCC), [1965] S.C.R. 739; Wildman v. The Queen, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311; R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909; R. v. Broyles, 1991 CanLII 15 (SCC), [1991] 3 S.C.R. 595; R. v. B. (F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697; R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(b)(iii) [am. c. 27 (1st Supp.), s. 145(1); am. 1991, c. 43, s. 9 (Sch., item 8)].

Authors Cited

McCormick, Charles Tilford. McCormick on Evidence, 4th ed. By John William Strong, General Editor. St. Paul, Minn.: West Publishing Co., 1992.

Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada. Toronto: Butterworths, 1992.

Wigmore, John Henry. A Treatise on the Anglo‑American System of Evidence in Trials at Common Law, vol. 1, 3rd ed. Boston: Little Brown & Co., 1940.

APPEAL from a judgment of the Ontario Court of Appeal (1993), 18 W.C.B. (2d) 270, dismissing the accused's appeal from his conviction on a charge of aggravated assault. Appeal allowed and new trial ordered.

Clayton C. Ruby, for the appellant.

Jamie C. Klukach, for the respondent.

The judgment of the Court was delivered by

Major J. -- The appellant was convicted by a judge and jury of aggravated assault in connection with a stabbing and was sentenced to four years' imprisonment. An appeal to the Ontario Court of Appeal was dismissed, Galligan J.A. dissenting.

The appellant appeals as of right on the point of law raised in Galligan J.A.'s dissent, i.e., whether the trial judge properly instructed the jury regarding evidence adduced by the accused to the effect that another person at the scene of the crime had minutes earlier stabbed another person, and therefore was more likely than the accused to have stabbed the victim. The appellant was also granted leave to argue the additional issue of whether the trial judge properly instructed the jury with respect to the inference to be drawn from the fact that he ran from the scene of the crime.

I. The Facts

A scuffle occurred outside Rafferty's, a Scarborough bar, at approximately 1:00 a.m. on August 22, 1991. One of the participants, Theodore Heffern, tried to escape and was chased by a number of individuals, including the appellant. Heffern ran onto the poorly-lit porch of a neighbouring house. One member of the pursuing group, Edward Sweeney, followed him onto the porch and began punching and kicking him. The appellant joined the fracas, and admits to having punched Heffern several times. When it became apparent that Heffern had been stabbed in the back, the appellant, Sweeney and a number of witnesses fled the scene.

The appellant admitted common assault but denied aggravated assault, and gave evidence that he saw a black man, whom he identified as Jason Semester, approach the porch with a knife, stab Heffern and flee.

Heffern testified that he did not see who stabbed him and that he did not see anyone other than the appellant and Sweeney on or near the porch at the time of the attack. He noted, however, that he had blacked out for approximately 10 seconds during the incident.

Semester denied stabbing Heffern. He testified that he saw three men, including the victim, on or near the porch during the assault, but that he did not see anyone being stabbed. He also said that there were a number of black men, in addition to himself, who witnessed the event.

James Kelly, Todd Ford and Reginald Nash, who were among the witnesses to the assault on the porch, testified at trial in support of the appellant's version of the events. It was the Crown's theory that those witnesses, all of whom were friends of the appellant, fabricated their stories in order to place the blame for the stabbing on Semester.

Kelly's evidence was that he saw Semester go up to the porch and stab Heffern. He also stated that he had spoken to Semester prior to the attack and that Semester appeared to be "buzzed" or "high" on drugs.

Ford testified that a number of black men were present during the assault and that he saw an individual matching Semester's general description approach the porch, stick his hand through the porch railing, and then flee. Ford further testified that he noticed moments later that the same man was carrying a knife.

Nash testified that while he did not see anyone run up to the porch or stab Heffern, he did see an individual matching Semester's description, and whom he identified at trial as being Semester, run away from the porch. He also claimed that there was only one black man among the crowd who witnessed the assault and that he heard a member of the crowd say that Heffern had been stabbed by a black man. Nash further testified that an hour after the assault had occurred, he met Semester who showed him a bloody knife and admitted to the stabbing. However, when arrested and charged with aggravated assault in connection with the incident, Nash did not reveal that information to the police. At trial, he explained his silence on the grounds that he did not want to get anyone involved with the police and that he was afraid that Semester or others would harm him if he implicated Semester in the stabbing.

Another witness, Kerri-Ann Parsons, testified that the only people on or near the porch at the relevant time were the appellant, Sweeney and Heffern. Parsons also testified that while she saw the appellant hunched over the fallen Heffern, she could not see what he was doing with his arms because his back was to her. Parsons stated that she did not see anyone stab Heffern.

A number of witnesses stated that the appellant had blood on his right hand after the incident. The appellant testified that he was holding Heffern, who was in a sitting position, around the head with his left arm while punching him with his right hand when Semester unexpectedly stabbed him in the back. That evidence was challenged by the Crown during cross-examination on the ground that it would not explain how the appellant got blood on his right hand.

A half hour before the initial scuffle occurred outside Rafferty's, another stabbing occurred a short distance away in the parking lot of a Pizza Pizza restaurant. The victim, Cameron Day, along with Jim Kelly, the witness who testified on behalf of the appellant, were involved in a fight. Kelly's evidence was that he and Semester had drawn knives during the altercation, but that he did not see Semester, or anyone else, stab Day.

Day testified that he was involved in a fist fight with a white man when a black man, who he could not identify by photograph, intervened and struck him in the stomach; he later realized that he had been stabbed by the intervener. Day did not get a good look at the person who stabbed him and gave a description of the assailant that was not entirely consistent with Semester's appearance. Day also testified that he did not see anyone wield a knife during the incident.

William Cowan, a friend of Day's, testified that he saw a white man and a black man involved in an altercation with Day. However, he did not get a good look at the black man, nor could he make a photographic identification. Cowan did not see anyone wield a knife during the altercation.

Semester testified that he and a number of other black men were present during the incident but denied ever carrying a knife or stabbing Day.

Finally, evidence was led to show that Semester had a criminal record for break and enter, theft, breach of probation, and armed robbery during which a gun and a knife were wielded. With respect to the last conviction, he gave evidence that he merely accompanied the individuals who committed the robbery and that he was unarmed at the time.

II. The Courts Below

The Trial Court

The trial judge instructed the jury that appellant's criminal record was relevant only to the issue of his credibility as a witness. She similarly confined the evidence of Semester's criminal record, which included a crime of violence, to the issue of credibility. The jurors were not told that they could also consider Semester's criminal record, together with the evidence connecting him with the stabbing of Day, as supporting the appellant's contention that Semester had a propensity for violence and had stabbed Heffern. If accepted, that evidence could have supported the appellant's version of the events and raised a reasonable doubt as to his guilt.

The trial judge also instructed the jury that the evidence of the appellant's flight was a factor to be considered in reaching their verdict. However, she clearly stated that that evidence was not conclusive as innocent people sometimes flee the scene of a crime.

Defence counsel at trial did not object to the fact that the trial judge's charge dealt with Semester's criminal record only in connection with the issue of credibility and did not comment at all upon the use that could be made of the evidence tying Semester to the earlier stabbing of Day. Similarly, counsel did not object to the jury charge with respect to the instruction given regarding the inference to be drawn from the appellant's flight from the scene.

The Court of Appeal for Ontario

A majority of the Court of Appeal for Ontario dismissed the appeal: (1993), 18 W.C.B. (2d) 270. Brooke and Labrosse JJ.A. considered but rejected the submission that the trial judge erred in not instructing the jury that the evidence of Semester's criminal record and his connection with the stabbing of Day within the half hour of the stabbing of Heffern could have probative value to show that he was likely to have stabbed Heffern. The majority noted that no objection had been taken to the charge at trial, and stated that it was implicit in the jury's verdict that they accepted the evidence of Semester denying involvement and rejected the evidence of the appellant. They concluded that the jury would not have reached a different verdict had they been charged as now requested by the appellant.

In dissent, Galligan J.A. stated that even in the absence of a request by the defence, the trial judge should have charged the jury that if they believed the evidence regarding Semester's involvement in the stabbing of Day, then they would be entitled to consider that evidence as tending to support the appellant's testimony that it was Semester who stabbed Heffern.

The inference if any to be drawn from the appellant's flight from the scene of the stabbing was not commented upon by the Court of Appeal.

III. Points in Issue

This appeal raises three issues:

(1) Was the majority of the Ontario Court of Appeal correct in holding that the trial judge had not erred in failing to instruct the jury that if they accepted evidence that indicated Semester had wielded a knife in the past, they could consider that evidence as supporting the appellant's contention that it was Semester, and not he, who stabbed Heffern?

(2) Did the Ontario Court of Appeal err in not holding that the trial judge had failed to properly instruct the jury with respect to the inference to be drawn from the fact that the appellant fled from the scene of the stabbing?

(3) If the trial judge was in error, can the error(s) be cured by s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46?

IV. Analysis

A. The Issue of Semester's Past Conduct

In her charge to the jury, the trial judge referred to the evidence of Semester's criminal record and instructed the jury that they could consider that evidence in assessing his credibility as a witness and in determining the weight to be given to his evidence. She did not, however, instruct them that Semester's conviction for robbery during which a knife and a gun were used, and the evidence, if accepted, of his involvement in the stabbing of Day earlier that evening, could support the appellant's contention that it was Semester who stabbed Heffern.

There are limits on the introduction and use of evidence during a criminal trial. Though relevant, evidence may be excluded on policy grounds. Illustrative of that is the well-known instruction on character evidence that "the Crown is not permitted to adduce evidence of the accused's bad character either by evidence of reputation or specific acts unless the accused has put character in issue or the evidence is otherwise relevant to an issue, as for instance as evidence of similar acts": J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (1992), at p. 454. While such evidence may be relevant, it is excluded on the grounds that its prejudicial effect is apt to outweigh its probative value; the danger exists that a jury may convict on the basis of the accused's reputation rather than on the basis of the evidence: McCormick on Evidence (4th ed. 1992), vol. 1, § 190, at p. 811.

However, the danger of a wrongful conviction does not arise where the character evidence pertains not to the accused, but to a third party witness. Consequently, "[s]o long as it is relevant and not otherwise excluded by a rule of evidence, evidence of the bad character of a third party can be adduced by the defence": Sopinka, Lederman and Bryant, supra, at p. 467; R. v. Scopelliti (1981), 1981 CanLII 1787 (ON CA), 63 C.C.C. (2d) 481 (Ont. C.A.); and Wigmore on Evidence (3rd ed. 1940), vol. 1, § 139, at p. 573. The Ontario Court of Appeal confirmed this in R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 23 C.C.C. (2d) 160, aff'd 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824. There, the accused was charged with murdering his child. His defence was that his wife had killed the child. The Court of Appeal held that the accused was permitted to adduce evidence that his wife suffered from a psychopathic personality disorder and had committed acts of violence in the past in order to establish that she had a disposition to commit the offence in question.

However, evidence of a third party's bad character will not be admitted unless it is relevant. There would be no probative value in evidence that a third party had a propensity to commit the type of act in question if he was otherwise unconnected with the circumstances surrounding the charge, R. v. McMillan, supra, at p. 168, per Martin J.A:

Obviously, unless the third person is connected with the crime under consideration by other circumstances, evidence of such person's disposition to commit the offence is inadmissible on the grounds of lack of probative value. For example, if A is charged with murdering X, in the absence of some nexus with the alleged offence, evidence that B has a propensity or disposition for violence, by itself, is inadmissible to prove B is the murderer because standing alone it has no probative value with respect to the probability of B having committed the offence. If, however, it is proved that A, B and X all lived in the same house when X was killed, and that B had a motive to kill X, then evidence that B had a propensity for violence, may have probative value on the issue whether B, and not A, killed X, and is accordingly admissible.

See also McMillan v. The Queen, 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824, at p. 828; and R. v. Williams (1985), 1985 CanLII 113 (ON CA), 18 C.C.C. (3d) 356 (Ont. C.A.), at p. 366.

In Scopelliti, supra, the accused was charged with murder. He testified that he acted in self-defence, and sought to lead evidence of the deceased's character or disposition for violence to support his contention that the deceased was the aggressor. Martin J.A. stated at p. 496:

I agree, of course, that evidence of previous acts of violence by the deceased, not known to the accused, must be confined to evidence of previous acts of violence which may legitimately and reasonably assist the jury in arriving at a just verdict with respect to the accused's claim of self-defence. To exclude, however, evidence offered by the accused which is relevant to prove his innocence would not, in my view, be in the interests of justice.

Since evidence of prior acts of violence by the deceased is likely to arouse feelings of hostility against the deceased, there must inevitably be some element of discretion in the determination whether the proffered evidence has sufficient probative value for the purpose for which it is tendered to justify its admission. Moreover, great care must be taken to ensure that such evidence, if admitted, is not misused.

See also R. v. Yaeck (1991), 1991 CanLII 2732 (ON CA), 68 C.C.C. (3d) 545 (Ont. C.A.), at p. 563, leave to appeal to S.C.C. refused, [1992] 1 S.C.R. xii; and R. v. McMillan, supra, at p. 167.

The proposition is unquestioned that evidence which is logically probative may be excluded where its probative value is slight but its prejudicial effect upon the fair trial of the accused is great. However, courts are reluctant to exclude evidence offered by an accused in his defence: R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, per McLachlin J., at p. 611:

Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted.

Evidence of a third party's character or violent disposition is admissible even if it refers to only one event; see, e.g., Yaeck, supra, at p. 564; and R. v. Kendall (1987), 1987 CanLII 180 (ON CA), 35 C.C.C. (3d) 105 (Ont. C.A.), at p. 125.

In the present appeal, the appellant adduced evidence which could have been relied upon by the jury in support of his contention that it was Semester who stabbed Heffern. As noted above, there was evidence of Semester's criminal record, as well as evidence connecting him with the stabbing of Day.

There is little doubt that the evidence was sufficiently probative to warrant its admission and use for the appellant's purpose of establishing that Semester had wielded a knife in the past and therefore was likely to have stabbed Heffern. If believed by the jury, that evidence was capable of supporting the appellant's defence that it was Semester who stabbed Heffern, particularly in light of the fact that the Heffern stabbing and the Day stabbing occurred within a very short period of time.

After stating that the accused had a criminal record, the trial judge charged the jury in the following terms:

And I must warn you that you must not use the prior convictions as evidence that the accused committed a crime with which he is now charged. You must not conclude that because the accused has been convicted of other crimes he is disposed to commit further crimes. You can only consider it as I have said, in deciding the credibility of the accused and you will decide what weight, if any, should be given to the prior criminal record of the accused on that matter.

That charge was appropriate. It is generally not open to the Crown to adduce evidence of the accused's character in order to suggest that he is likely to have committed the offence with which he is charged.

However, the same rule does not apply to evidence of the character of a third party, such as Semester. Unfortunately, the trial judge may have confused the jury on this point when she stated:

... as I told you, the fact that a witness has a criminal record is one of the circumstances that you can consider in deciding on his credibility and how much weight you wish to give to this evidence but it does not mean that he is not a trustworthy witness if in your opinion he is credible.

By referring to the instructions she earlier gave in respect of the accused, the trial judge may have misled the jury into supposing that evidence of Semester's character could not be used as proof of his disposition. A proper charge in this case would not cause this confusion. If, and to the extent that, they accepted the evidence of Semester's character, the jury was entitled to consider such evidence in support of the defence theory that there was a reasonable doubt Semester rather than the appellant stabbed Heffern. On the facts of this case, the jury might not have known that the evidence could be relied upon for that purpose.

It is expected that counsel will assist the trial judge in ensuring the charge to the jury is complete. It is regrettable that the appellant's trial counsel did not raise this issue before the trial judge. However, the defence theory arose naturally and clearly out of the evidence and the accused was entitled to have the jury charged with respect to it, R. v. Squire, 1976 CanLII 26 (SCC), [1977] 2 S.C.R. 13, at p. 19, per Spence J.:

It is, of course, the duty of a trial judge to submit to the jury in his charge any defence available to the accused which had been revealed by the evidence whether or not counsel for the accused chose to advance that defence in his address to the jury. . . .

See also MacAskill v. The King, 1931 CanLII 58 (SCC), [1931] S.C.R. 330, at p. 335.

Trial counsel's failure to object to a jury charge is not determinative of the applicability of the Criminal Code's "curative provision", s. 686(1)(b)(iii); see R. v. Chambers, 1990 CanLII 47 (SCC), [1990] 2 S.C.R. 1293, at pp. 1319-20.

B. The Issue of Flight

It is well established that an inference of guilt may be drawn from circumstantial evidence such as flight from the scene of a crime or the fabrication of lies relating to the offence in question. However, in charging a jury, a trial judge must take care to ensure that evidence of flight is not misused. The danger exists that a jury may erroneously leap from such evidence to a conclusion of guilt if not properly instructed, see McCormick on Evidence, supra, vol. 2, § 263, at p. 182:

... in many situations, the inference of consciousness of guilt of the particular crime is so uncertain and ambiguous and the evidence so prejudicial that one is forced to wonder whether the evidence is not directed to punishing the "wicked" generally rather than resolving the issue of guilt of the offense charged.

In Gudmondson v. The King (1933), 1933 CanLII 415 (SCC), 60 C.C.C. 332 (S.C.C.), the appellant was accused of manslaughter. This Court held, at pp. 332-33, that the trial judge did not properly charge the jury with respect to the fact that the appellant did not stop to give aid to the individuals who had been injured:

Then, the learned Judge's comments upon the conduct of the accused, in proceeding on his way, without pausing to inquire about the unfortunate victims, were calculated to convey an erroneous notion as to the significance of that conduct for the purpose in hand, as well as in respect of its evidentiary cogency.

Having said what he did upon this matter, he ought at least to have added a warning to the jury that such conduct, however reprehensible, could have no more than an indirect bearing upon the issue before them.... [H]e should have told them that they ought to be very cautious in imputing to the accused a consciousness of guilt, because of actions which, on reflection, they might think capable of explanation as due to panic.

We are forced to the conclusion that, on the whole, the charge was likely to create impressions which might preclude or gravely militate against a judicial examination by the jury of the grounds of defence.

In this case, the jury was clearly told that people sometimes flee in panic from the scene of a crime, even if they are entirely innocent. However, in some circumstances, the direction provided in Gudmondson will be inadequate, and the jury ought to be given further instruction. That is true in the present case. The appellant admitted to committing one offence, common assault, but denied having committed another, aggravated assault. The issue is whether the evidence of flight could support an inference of guilt with respect to the latter rather than the former.

A similar situation arose in United States v. Myers, 550 F.2d 1036 (5th Cir. 1977). The accused was wanted for two robberies; one was committed in Pennsylvania and the other in Florida. The reported decision concerns the latter. There was evidence that the accused fled when approached by FBI agents. Clark J. canvassed the law, adopted the view expressed in McCormick on Evidence (2nd ed. 1972), § 271, at p. 655, and concluded that the proper approach determines whether there is sufficient evidence in support of drawing four inferences:

(1) from the accused's behavior to flight,

(2) from flight to consciousness of guilt,

(3) from consciousness of guilt to consciousness of guilt concerning the offence in question,

(4) from consciousness of guilt of the offence in question to actual guilt of the offence in question.

Clark J. held that the third inference could not be drawn. Since the accused knew that he was wanted for a robbery committed in Pennsylvania, the possibility existed that he fled solely out of consciousness of guilt with respect to it, rather than the Florida robbery. To be useful, flight must give rise to an inference of consciousness of guilt in regard to a specific offence.

The test articulated in Myers provides helpful guidance on the inferences that may be drawn from evidence of an accused's flight (or other possible indicia of consciousness of guilt, such as lying). Such evidence can serve the function of indicating consciousness of guilt only if it relates to a particular offence. Consequently, where an accused's conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence.

Those principles can be applied to the facts of this appeal. The trial judge simply told the jury that people often flee the scene of a crime even if they are entirely innocent. Having said what she did upon this matter, she also should have told the jury that because the appellant's flight was equally consistent with both common assault and aggravated assault, it could not be evidence of guilt of the latter. Any inference to be drawn from flight disappears when an explanation for such flight is available, as it is here.

The jury should have been warned against drawing any inference from the fact of flight. The trial judge's direction that even innocent people sometimes flee the scene of a crime was insufficient in light of the fact that the appellant admitted that he had committed common assault by punching Heffern, and thus had reason to flee. The issue was not whether the appellant fled because he was guilty or because he panicked despite being innocent. Rather, the issue was whether the appellant's flight indicated a consciousness of guilt arising from the fact that he had stabbed Heffern or rather from the fact that he had punched Heffern. And on that question, the evidence could have no probative value.

C. The Applicability of Section 686(1)(b)(iii) of the Criminal Code

The principles and tests to be applied under s. 686(1)(b)(iii) of the Criminal Code, the "curative provision", are a matter of settled jurisprudence. That section places a burden on the Crown to justify the denial of a new trial despite the presence of an error in the lower court. While the satisfaction of that onus is a condition precedent to the application of the curative provision, the curative provision need not be applied even if the onus is met. In Colpitts v. The Queen, 1965 CanLII 2 (SCC), [1965] S.C.R. 739, at p. 744, the applicable test was stated to be whether "the verdict would necessarily have been the same if such error had not occurred". See also Wildman v. The Queen, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311, at pp. 328-29; R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909, at p. 919; R. v. Broyles, 1991 CanLII 15 (SCC), [1991] 3 S.C.R. 595, at p. 620; R. v. B. (F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697, at pp. 736-37; and R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599, at p. 617.

Having regard to the cumulative effect of the errors, I am of the view that the curative provision is inapplicable in the present case. There is a possibility that, but for the trial judge's errors, the jury's verdict would have been different.

The jury was not properly charged with respect to the use that could be made of the evidence adduced by the appellant concerning the fact that Semester had a propensity for violence as evidenced by his previous conviction for armed robbery and the evidence that connected him to the stabbing of Day which occurred within the half hour before the stabbing of Heffern. It was not enough for the trial judge to instruct the jury that they could consider Semester's criminal record in assessing his credibility as a witness. She should have also instructed the jury that they could consider such evidence in connection with the appellant's contention that it was Semester who stabbed Heffern. If properly instructed, it is possible that the jury would have had a reasonable doubt as to the appellant's guilt.

The trial judge also failed to properly instruct the jury regarding the use that could be made of the evidence of the appellant's flight from the scene. It was not sufficient to tell the jury that entirely innocent men sometimes flee the scene of a crime. By his own admission, the appellant was not entirely innocent; he admitted that he had punched Heffern. The trial judge should have instructed the jury that the appellant's flight was equally consistent with common assault and with aggravated assault, and therefore was incapable of supporting an inference of consciousness of guilt with respect to the latter. Because she did not charge the jury in those terms, there is a danger that the jury may have wrongly inferred from the evidence that the appellant fled because of his guilt in stabbing Heffern. Since the jury might have reached a different verdict if properly charged, the curative provision cannot apply.

V. Conclusion

I would allow the appeal and order a new trial.

Appeal allowed and new trial ordered.

Solicitors for the appellant: Ruby & Edwardh, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.