Her Majesty the Queen v. Jermaine Gager and Corey Smelie

COURT FILE NO.: 11-40000751-0000 DATE: 2012-05-04

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Applicant

– and –

JERMAINE GAGER and COREY SMELIE Respondents

Counsel: Mr. R. Nathanson and Ms. M. Misener, for the Crown Mr. S. Fishbayn and Mr. C. Gill, for Jermaine Gager Mr. D. Heath and Mr. J. Giuliana, for Corey Smelie

HEARD: March 6, 2012

MISTRIAL APPLICATION

REASONS FOR DECISION

Clark J.:

INTRODUCTION

[1] The accused stand jointly charged that on September 22, 2008, they shot to death one Darnell Grant and did thereby commit First Degree Murder. On Monday, March 19, 2012, Mr. Gager sought a mistrial based on the closing remarks of counsel for the co-accused, Mr. Smelie. I dismissed the application, indicating that I would give reasons as soon as time permitted; these are those reasons.

CHRONOLOGY

[2] Jury selection began on January 26, 2012. After approximately seven weeks of trial, closing addresses to the jury began on Wednesday, March 14, 2012.

[3] Inasmuch as Mr. Gager was named first on the indictment and had testified in his own defence, Mr. Fishbayn was obliged to close first.

[4] Immediately following the conclusion of Mr. Fishbayn’s remarks, Mr. Heath, counsel for Mr. Smelie, closed to the jury.

[5] Given that it was late afternoon by the time Mr. Heath had concluded his remarks, I adjourned until the following day to hear from the Crown. At the end of Mr. Heath’s closing, Mr. Fishbayn made no complaint about anything Mr. Heath had said. Prior to adjourning on March 14, although I did not specifically inquire whether anyone had any difficulty with either Mr. Fishbayn’s or Mr. Heath’s closing addresses, I did ask, as is my invariable habit, whether there was anything that needed to be addressed prior to concluding for the day. In response to that inquiry, Mr. Fishbayn stood mute.

[6] On Thursday, March 15, Mr. Nathanson made his final remarks to the jury on behalf of the Crown. At the end of Mr. Nathanson’s remarks, the jury was dismissed until the following Tuesday and a further pre-charge conference[^1] was conducted. At the conclusion of that pre-charge conference, before adjourning the court, I once again asked whether there was any matter that needed to be addressed. Despite having had time to consider overnight the content of Mr. Heath’s remarks, Mr. Fishbayn had no complaint at any point on the Thursday. Upon being advised that there was nothing further to be dealt with, I adjourned the court until Monday, March 19.[^2]

[7] On Monday, March 19, when court convened, Mr. Fishbayn rose to advise that he wished to seek a mistrial based on Mr. Heath’s closing address. When it became apparent that the application would take some considerable time, I instructed the court staff to advise the jury that they would not be required until Wednesday, March 21, 2012. I then proceeded to hear argument that lasted much of the day. Ultimately, as noted above, I dismissed the application.

THE OFFENDING REMARKS

[8] In the course of his closing remarks, Mr. Heath pointed out that the jury had not heard from Mr. Smelie. He then went on to ask the jury to consider what Detective Backus[^3] had said about what he referred to as the “code of silence”[^4] and then asked rhetorically, “Would you put your own life at risk?”

[9] Mr. Heath then went on to mention the fact that, while in jail awaiting trial, Mr. Gager had written to his friend, Anthony St. Louis,[^5] telling him that he was waiting for disclosure, including the statements that he indicated he and Mr. Smelie had made to the police. With reference to the statement he believed Mr. Smelie had given to the police, Mr. Gager wrote that he hoped that Mr. Smelie had not “crack[ed]”, but that, if he had, he, Gager, would “fuck him up”.

[10] Mr. Heath went on to ask the jury to consider the evidence they “did not hear” and, in particular, what effect the code of silence might have had on Mr. Smelie. Mr. Heath asked the jury to conclude that Mr. Gager was a gang member and suggested that Mr. Smelie did not testify because he feared that if he were to testify he would be killed.

[11] Mr. Heath asked the jury, “Would you put your lives at risk? What if you cracked and told them? What if your only choice was risking being killed or being convicted for something you didn’t do?”

POSITION OF THE APPLICANT

[12] Mr. Fishbayn contends that Mr. Heath’s remarks suggest to the jury the following propositions, namely, (i) that Mr. Gager is a gang member, (ii) that he was one of the shooters who fired upon Darnell Grant and other persons present at Driftwood Court on September 22, 2008, (iii) that, were he not afraid to do so, Mr. Smelie would testify to that effect, but (iv) Mr. Smelie was intimidated by the prospect that Mr. Gager would murder him if he were to testify. Mr. Fishbayn contends that there is no evidence to support any of these assertions and further contends that, by virtue of Mr. Heath’s position as an officer of the court, the jury is apt to think that he has a basis upon which he can confidently make those assertions.

[13] Mr. Fishbayn took the position that, in the absence of any evidence supporting them, Mr. Heath’s remarks were improper and, in the result, Mr. Gager’s fair trial interests had been irremediably compromised, such that the only appropriate remedy was to mistry the case as against Mr. Gager.

POSITION OF THE RESPONDENT COREY SMELIE

[14] On behalf of Mr. Smelie, Mr. Heath took the position that he was entitled to say what he did, that his remarks engendered no prejudice against Mr. Gager and that the application ought to be dismissed.

POSITION OF THE RESPONDENT CROWN

[15] The Crown took the position that some of what Mr. Heath had said to the jury was improper, but that there was nothing Mr. Heath had said that could not be remedied by a proper instruction.

DISCUSSION

Timing of the Application

[16] Before dealing with the merits of Mr. Fishbayn’s argument, I wish to comment on the timing of the motion. Yet again,[^6] Mr. Fishbayn’s timing was problematic. Notwithstanding what he characterized as the “astonishing prejudice” engendered by Mr. Heath’s remarks, Mr. Fishbayn did not seek a mistrial until fully five days had passed and until after Crown counsel had made his closing remarks. If he felt aggrieved by Mr. Heath’s remarks, Mr. Fishbayn could have, and certainly should have, asked for redress immediately after Mr. Heath finished his closing remarks. That redress could have taken one or both of two forms.

[17] First, Mr. Fishbayn could have sought leave to make submissions in reply to Mr. Heath’s remarks. In my view, it was open to him to have done so: R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262. In Rose, at paragraph 136, the Supreme Court recognized that, "in the clearest cases of unfairness", a trial judge may permit an accused to reply to a prejudicial Crown closing. In terms of overcoming prejudice occasioned by an unfair jury address, I see no difference in principle between closing remarks by the Crown and remarks by counsel for a co-accused. By leaving his objection until after the Crown had closed to the jury, however, Mr. Fishbayn effectively foreclosed that option, because to have exercised my discretion to permit Mr. Fishbayn to reply at that point would have been manifestly unfair to the Crown, which was guilty of no misconduct.

[18] Second, if not inclined to seek leave to make submissions in reply, it was, in the least, certainly open to Mr. Fishbayn to ask the court to give an immediate instruction to the jury to disregard what he contends were the offending portions of Mr. Heath’s closing remarks. Surely, if the remarks were as egregious as Mr. Fishbayn would now have the court conclude, the sooner they were addressed the better. This Mr. Fishbayn also failed to do, seeing fit instead to leave Mr. Heath’s remarks with the jury for five days before raising the issue, at which point he then contended that the situation was irreparable.

Merits of the Application

[19] Turning to the merits of the application, there can be no question that Mr. Heath was entitled to comment on the failure of his client to testify: R. v. Boss (1988), 1988 CanLII 190 (ON CA), 46 C.C.C. (3d) 523 (Ont. C.A.), at 541. That is particularly so where, as here, that failure had been the subject of comment by counsel for a co-accused. Mr. Heath was entitled to explain to the jury that his client had an absolute right not to testify and, quite apart from how they might consider it in deciding Mr. Gager’s guilt or innocence, they were not entitled to use Mr. Smelie’s exercise of that right as a “make weight” factor in deciding the case against him: R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874.

[20] In R. v. Unger (1993), 1993 CanLII 4409 (MB CA), 83 C.C.C. (3d) 228 (Man. C.A.), the court dealt with the propriety of defence counsel’s commentary on the failure of a co-accused to testify. At paragraph 124, the court held that “counsel's right to comment is not unrestricted or unrestrained. Counsel for a co-accused cannot make remarks which turn the trial into an unfair process against the accused.” In my view, those remarks apply equally to counsel’s right to discuss the failure of his own client to testify.

[21] It was improper for Mr. Heath to ask the jury to consider why his client chose not to testify: R. v. Smith, 1997 CanLII 832 (ON CA), [1997] O.J. No. 4797. Understanding that Mr. Smelie had the absolute right not to testify, why he chose to avail himself of that right was of no relevance whatsoever to the jury. The failure of an accused to testify is not evidence of guilt: R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874. Nor, at the risk of stating the obvious, is it evidence of innocence. Accordingly, there was no proper reason for Mr. Heath to ask the jury to consider why Mr. Smelie declined to testify and at least two very good reasons why he ought not to have invited the jury to consider Mr. Smelie’ motivations.

[22] First, Mr. Heath’s suggestion that Mr. Smelie decided not to testify out of fear of reprisal tacitly invited the jury to speculate that his client had an explanation consistent with his innocence because, after all, surely he would not be inclined to testify (at least not truthfully) if he were guilty.

[23] Second, and more important for purposes of this motion, the inference that Mr. Heath asked the jury to draw, namely, that Mr. Smelie feared reprisal from Mr. Gager could prejudice the fair trial interests of Mr. Gager.

[24] Having decided that Mr. Heath’s comments were inappropriate, the question becomes what the appropriate remedy ought to be.

[25] In Rose, at paragraph 124 ff., Cory J. stated:

[T]here are two approaches available to a trial judge to remedy unfairness resulting from an improper closing address.

First, if a trial judge is of the opinion that an irregularity in counsel's address has jeopardized the fairness of the trial, then, in most situations, it may be rectified by a specific correcting reference to it in the charge to the jury. This should suffice in most cases. Second, if the trial judge is of the opinion that curative instructions alone will not suffice to remedy the damage, then in those relatively rare situations, the prejudiced party may be granted a limited opportunity to reply. [Emphasis added.]

[26] At paragraph 126, Cory J. went on to hold that “[t]he judge should not hesitate to correct errors of counsel in order to preserve the fairness of the trial process. Taking this step will ensure fairness in the vast majority of cases." [Emphasis added.] In the next paragraph, Cory J. stated that "[i]t is not only appropriate for a trial judge, in a charge to the jury, to undertake to remedy any improper address by counsel, but it is the duty of the trial judge to do so when it is required."

[27] Mr. Fishbayn relies principally on R. v Giesecke (1993), 1993 CanLII 8600 (ON CA), 82 C.C.C. (3d) 331 (Ont. C.A.), for the proposition that the harm done by Mr. Heath’s remarks is irremediable and, thus, necessitates a mistrial. I disagree with his analysis.

[28] To begin, in Giesecke, counsel effectively gave evidence on his client’s behalf and indulged in what the Court of Appeal characterized as “inflammatory rhetoric.” While the remarks in this case were improper, in my view they pale in comparison to the egregious nature of the offending remarks in Giesecke.

[29] It is also important to bear in mind that the result in Giesecke did not turn solely on the address of counsel for the co-accused. Rather, the Court of Appeal was concerned about what it characterized as the “undeniable cumulative prejudice to the appellant resulting from evidence otherwise inadmissible against her but for the fact of a joint trial; from the increasingly antagonistic two defences; and most emphatically from the closing address of the co-accused’s counsel”: para. 10. [Emphasis added.]

[30] As for “evidence otherwise inadmissible…but for the fact of a joint trial”,[^7] I do not consider that to be a difficulty in this case for two reasons. First, unlike Giesecke, no statement by the co-accused, Mr. Smelie, was introduced into evidence. Second, although evidence reflecting negatively on the character of Mr. Smelie was admitted, there was relatively little evidence to connect Mr. Gager and Mr. Smelie in any significant way.[^8] In addition, the jury was instructed, on more than one occasion, on the limited use of evidence of bad character and, more importantly for purposes of this motion, that the guilt or innocence of each accused was to be decided only on evidence admissible against that accused. Hence, in my view, there was very little chance that the evidence of bad character admissible against Mr. Smelie could have had any prejudicial impact on Mr. Gager.

[31] Likewise, antagonistic defences were not the source of any prejudice to Mr. Gager. Indeed, to the extent that the defences were antagonistic, it was Mr. Gager who created that issue when he testified in such a way as to suggest, inferentially at least, that Mr. Smelie was one of the shooters, while at the same time stating categorically that he was nothing more than an unwitting passenger in the van. In light of the fact that Mr. Smelie did not testify, there was no evidence forthcoming from Mr. Smelie to the effect that Mr. Gager was one of the shooters. Thus, I see virtually no possibility for prejudice to Mr. Gager on this front.

[32] As for the address of counsel for the co-accused, while, as noted above, there were other difficulties leading to what the court characterized as the “cumulative prejudice” requiring a new trial, clearly this appears to have been the court’s main concern in Giesecke. That said, it is important to bear in mind that, in contrast to Mr. Fishbayn’s argument in this case that the damage is irremediable, the court in Giesecke did not order a new trial based simply on the mere fact that the remarks were made, thereby rendering the trial irreparably unfair to the appellant; on the contrary, the necessity for a new trial flowed not from the remarks per se, but, rather, from the combined effect of three problems.

[33] The first problem was that, by virtue of the order of the accused on the indictment, counsel for Giesecke preceded counsel for the co-accused, Lynch, such that he, “not having anticipated the improprieties, was unable to respond to them”: para. 12.[^9]

[34] The second and third problems in Giesecke comprised what the trial judge said and did not say, respectively, in response to co-counsel’s remarks.

[35] Dealing first with what the trial judge said, the court held that his “unnecessary repetition of the co-accused’s position [in his instructions to the jury] added to the prejudice caused to the appellant by the earlier inflammatory address”: para. 16. While noting that the trial judge had instructed the jury that counsel’s remarks did not constitute evidence, the court was concerned that the repetition of the improper remarks of counsel for the co-accused was exacerbated by the absence of a further caution in this regard.

[36] Turning to what the trial judge did not say, the court was concerned that the trial judge, feeling constrained by ss. 4(6) of the Canada Evidence Act (“CEA”), said nothing to the jury to offset the prejudicial remarks of counsel for the co-accused. The court indicated that “the remarks required a clear and unequivocal response from the trial judge without infringing s. 4”: para. 19. Relying on R. v. McConnell, 1968 CanLII 22 (SCC), [1968] S.C.R. 802, at p. 809, the Court went on to note that ss. 4(6) is meant to be interpreted in a purposive manner such that:

In this case, an express statement by the trial judge to the jury, that the submission by counsel for the co-accused to the effect that the co-accused had knowledge of the appellant’s guilt and could have given evidence to that effect must not be used to support a finding of the appellant’s guilt, should have been given. Such a direction would not have amounted to a violation of the subsection.

It was because “[n]o such corrective steps were taken…” that the Court was “unable to say that the trial was unaffected by the cumulative prejudice to the appellant”: para. 19. At paragraph 22, the court reiterated its view that “severe prejudice” flowed from the combined impact of the growing inimical defences (which is not an issue in the case at bar) and “the uncorrected rhetoric and speculation in the jury address of co-counsel.” [Emphasis added.]

[37] Following Giesecke, by virtue of the decisions in R. v. Crawford, 1995 CanLII 138 (SCC), [1995] 1 S.C.R. 858 and R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, a degree of uncertainty arose concerning the propriety of a trial judge mentioning the failure of an accused to testify, even where the intention was to prevent any prejudice to the accused. However, in R. v. Prokofiew, 2010 ONCA 423, [2010] O.J. No. 2498 (C.A.) Doherty J.A., speaking for a five-member court, held that the comments in Crawford and Noble were non-binding obiter dicta and further noted that “t]here is strong authority from the Supreme Court of Canada predating Crawford and Noble declaring that such comments are not contrary to s. 4(6): R. v. McConnell and Beer, 1968 CanLII 22 (SCC), [1968] S.C.R. 802; R. v. Avon, 1971 CanLII 133 (SCC), [1971] S.C.R. 650; R. v. Vézeau 1976 CanLII 7 (SCC), [1977] 2 S.C.R. 277 at pp. 289-90; R. v. Potvin 1989 CanLII 130 (SCC), [1989] 1 S.C.R. 525 at pp. 557-58…”

[38] In light of Prokofiew, I am of the view that it is permissible for a trial judge to mention the failure of an accused to testify in order to prevent any unfairness that might otherwise be occasioned by virtue of comments made by counsel for a co-accused. In light of Giesecke, I am of the view that such an instruction is required in this case and, further, that it will be sufficient to overcome any prejudice occasioned by the improper remarks.

[39] Such an instruction must, of course, be structured in such a way that it is not "presented to the jury in such a fashion as to suggest that ... silence is being used as a cloak for ... guilt": R. v. Biladeau, (2008), 2008 ONCA 833, 93 O.R. (3d) 365 (C.A.), at para. 20, cited in Prokofiew, at para.31.

[40] I turn now to several specific points Mr. Fishbayn raised.

[41] Dealing first with Mr. Heath’s suggestion that Mr. Gager is a gang member, contrary to Mr. Fishbayn’s suggestion, there is, in my view, ample evidence from which the jury might properly infer that, as of September 22, 2008, Mr. Gager was a member of the street gang known as the Jamestown (or Doomztown) Cripz. Accordingly, I see nothing improper in that suggestion per se.

[42] In light of (i) the fact that Mr. Gager was found in close proximity to a firearm (ii) the fact that expert evidence shows that firearm to have been fired at the scene of the shooting, (iii) the fact that Mr. Gager admitted having had possession of that firearm (albeit, on his account, only after the shooting), and (iv) the fact that Mr. Gager had a single particle of gunshot residue on his T-shirt, there is, contrary to Mr. Fishbayn’s suggestion, also evidence from which the jury could draw the inference that Mr. Heath invite the jury to draw, namely, that Mr. Gager was one of the persons who fired upon Mr. Grant and others on September 22, 2008. Thus, once again, I see nothing improper per se in Mr. Heath’s suggestion in that behalf.

[43] It is trite to observe, however, that counsel is not entitled to give evidence in the course of a closing address. Obviously, then, the fact that there is evidence supporting the aforementioned propositions does not make it proper for Mr. Heath to suggest what Mr. Smelie would have said had he testified. The matter is complicated somewhat by virtue of the fact that Mr. Heath suggested to Mr. Gager in cross-examination a scenario in which Mr. Smelie stayed in the van at the scene of the shooting and Mr. Gager got out and fired the .45 calibre pistol later found in his possession. Mr. Gager adamantly rejected that scenario.

[44] Against the backdrop of that line of questioning, Mr. Heath’s remarks were close to the line, but, that said, I am not convinced that Mr. Heath went quite so far as to suggest that Mr. Smelie would have made those assertions had he testified. In saying that, I mindful that the jury was instructed at the outset of the trial that questions posed by counsel are not evidence unless the witness adopts the substance of the question as being correct and, further, that it was agreed in the course of a pre-charge conference, which took place before the closings were made, that not only would that general instruction be repeated in the jury’s final instructions, but that the jury would be specifically instructed to disregard Mr. Heath’s line of questions in that regard.

[45] As for Mr. Fishbayn’s argument that Mr. Heath suggested that Mr. Smelie was afraid to testify for fear that Mr. Gager would, in Mr. Fishbayn’s words, “likely murder him”, admittedly, Mr. Heath mentioned in this context Mr. Gager’s threat, in his letter to Anthony St. Louis, that, if Smelie were to “crack”, he would “fuck him up”. Two points are apposite.

[46] First, Mr. Gager’s expression that he would “fuck up” Mr. Smelie does not suggest to me that he was saying he would kill Mr. Smelie; rather, in my view, that expression is more apt to be understood to mean that he would beat him up or injure him in some manner. Further, in his rhetorical question about Mr. Smelie’s choice between testifying at the risk of being killed, on the one hand, and remaining mute, on the other, Mr. Heath mentioned what has been referred to in this trial as “the code of silence”. Detective Backus defined that term with reference to credo adopted by street gangs generally. It is therefore possible that the jury would have understood Mr. Heath’s remark as referable to some retribution from gang members generally, as opposed to revenge by Mr. Gager specifically. Therefore, I am not satisfied that the only inference to be drawn from Mr. Heath’s remark is that Mr. Gager would murder Mr. Smelie if he testified.

[47] Second, even if the only sensible inference to be drawn from Mr. Gager’s threat is that Mr. Gager was vowing to kill Mr. Smelie, the notion that this was in fact what Mr. Fishbayn characterized as “likely” is, in my respectful view, farfetched. That is of some importance because it was, according to Mr. Fishbayn, not just the possibility, but, rather, the likelihood that Mr. Gager would kill Mr. Smelie if he testified that created the potential for the prejudicial reasoning that Mr. Gager was therefore “likely” to have been one of the shooters on September 22, 2008.

[48] In summary on this point, because Mr. Heath saw fit in this context to expressly mention Mr. Gager’s threat against Mr. Smelie, I am persuaded that the remarks have the potential for prejudice against Mr. Gager. Though not nearly as prejudicial as the suggestion that Mr. Gager would murder Mr. Smelie if he were to testify, even the idea that Mr. Gager would beat Mr. Smelie up, or injure him somehow, could lead to prejudicial propensity reasoning. That said, I am confident that any prejudice in this regard can be adequately dealt with by an appropriate instruction. On the other hand, if I am wrong, and the only sensible inference to be drawn from Mr. Heath’s remarks is that Mr. Smelie was afraid that Mr. Gager would kill him if he were to testify, I am still convinced that a proper instruction is capable of overcoming any potential for prejudice to Mr. Gager.

RESULT

[49] In the result, for the foregoing reasons, I dismissed the application.

Clark J.

Released: May 4, 2012

[^1]: This was to be a continuation of a pre-charge conference that began on March 12 and lasted throughout that day and the following day. [^2]: I indicated on March 15 that on Monday, March 19, I intended to give counsel the last of several drafts of my proposed final instructions to the jury and, after giving counsel a reasonable amount of time to consider that draft, to entertain any final submissions counsel might wish to make. With the benefit of that further input, I would then finalize my instructions and deliver them on Tuesday, March 20. [^3]: After a lengthy pre-rial application brought at the instance of the Crown, in a written ruling released January 10, 2012, I qualified Detective Douglas Backus of the Toronto Police Service as an expert on the subject of street gangs. [^4]: The term “code of silence”, according to Detective Backus, refers to a phenomenon whereby people who live in gang infested areas do not provide information to the police, and, in particular, do not inform on members of street gangs, for fear of retribution. [^5]: After a contested pre-trial application, I ruled that two letters written by Mr. Gager while in custody could be adduced by the Crown, provided that certain portions were redacted. The letters, in their redacted form, were first entered into evidence as Exhibits 49 and 54. After a mid-trial reconsideration of my initial ruling, the letters were re-entered with fewer redactions, as Exhibits 63 and 64. [^6]: I say “yet again” because Mr. Fishbayn’s ill timing in bringing applications has become something of a hallmark in this trial. Mr. Fishbayn has repeatedly brought applications in an untimely manner and, on one occasion, joined in an untimely application by counsel for the co-accused. In so doing, Mr. Fishbayn has repeatedly ignored the applicable provisions of the Rules of Criminal Proceedings and, in one case, flouted the requirements of s. 657.3 of the Criminal Code as well. Mr. Fishbayn’s unfortunate timing has repeatedly upset the orderly running of this trial, resulting in both the loss of a significant amount of valuable court time and considerable inconvenience to the jury. On at least one occasion, Mr. Fishbayn’s timing caused prejudice to the Crown in terms of its ability to respond to the application. On no occasion was Mr. Fishbayn’s explanation for his ill timing either satisfactory or convincing. In this regard, see my reasons for decision respecting: (i) a defence application for additional disclosure respecting a Crown application to have a witness qualified as an expert, released January 10, 2012, at paras. 83 to 98; (ii) Mr. Gager’s application to have a witness qualified as an expert, released March 5, 2012; (iii) the exclusion of Crown evidence respecting certain telephone numbers, released February 23, 2012; and (iv) the exclusion of Crown fingerprint evidence, released February 24, 2012. [^7]: This evidence included a taped conversation in which the girlfriend of the co-accused repeated to the appellant a statement by the co-accused implicating the appellant in the murder: para. 20. [^8]: The most the Crown could show by way of association between Mr. Gager and Mr. Smelie was that they had a mutual acquaintance, one Shane Salmon, and, according to Salmon, that some years earlier, as relatively young teenagers, they had frequented the same community centre. Salmon did not go so far as to say, however, that Mr. Smelie and Mr. Gager frequented the centre together or that they had any direct association with one another. [^9]: Giesecke, of course, predates Rose, such that the opportunity to make reply would have been unknown to either counsel or the court. In this case, however, as I have noted above, arguably at least, Mr. Fishbayn, had he bothered to ask for it, could have had an opportunity to remedy the situation that counsel for Giesecke did not have.