COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Srun, 2019 ONCA 453

DATE: 20190531

DOCKET: C60919

Hoy A.C.J.O., Watt J.A. and Then J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Sinhem Srun

Appellant

James Lockyer and Eva Taché-Green, for the appellant

Andreea Baiasu, for the respondent

Heard: September 11, 2018

On appeal from the conviction entered by Justice Bruce
    Glass of the Superior Court of Justice, sitting with a jury, on November 17,
    2013.

Watt J.A.:

[1]

Several men gathered outside a restaurant in a mall, including Mao Kim, Vandin
    Svay and the appellant, Sinhem Srun.

[2]

The appellant asked, Who is Mao?. Vandin Svay spread his arms. The
    appellant backed up. A fight began with a number of men on both sides.

[3]

Vandin Svay and Mao Kim were stabbed. Vandin Svay died. Mao Kim survived
    but was seriously injured.

[4]

Police investigated. The appellant was charged with second degree murder
    and attempted murder. Four others were charged jointly with manslaughter and
    aggravated assault.

[5]

At the end of a lengthy joint trial, the jury found the appellant guilty
    of second degree murder and attempted murder. The other four men were found not
    guilty of both counts with which they were charged.

[6]

The appellant appeals. Focusing on the conviction of second degree
    murder, he says that the judges charge to the jury contains several errors,
    some of omission, others of commission, which singly, or at the very least in
    combination, require that the convictions be set aside and a new trial ordered.

[7]

As will become apparent from the reasons that follow, I do not agree
    with the appellant and would dismiss the appeal.

the background facts

[8]

In general terms, the controverted issue at trial was the nature and
    extent of the appellants culpability. As the principal, did his conduct
    constitute second degree murder and attempted murder, as the Crown contended,
    or manslaughter and aggravated assault, as the appellant argued?

The Party

[9]

The Century Palace Restaurant is located in the Century Plaza Mall. The
    restaurant does not have a video surveillance system but several cameras are
    installed at different locations around the mall. Some blind spots exist but
    much of the activity that takes place in the corridors is captured by the
    cameras.

[10]

The
    doors of the Century Palace Restaurant open to one of the corridors in the
    mall. Two surveillance cameras record activity in the immediate vicinity of
    these doors.

[11]

One Saturday
    evening in mid-October a few years ago, several people attended a party at the
    restaurant. Admission required purchase of a ticket and included a meal, live
    entertainment and drinks. Guests included families and friends, among them the
    appellant, the co-accused, the deceased and his wife and the second victim, Mao
    Kim.

The Relationship of the Parties

[12]

There
    was little evidence about the relationship between the appellant and his
    friends, on the one hand, and the deceased and his friends, on the other. Any
    altercations or confrontations that may have occurred among the guests prior to
    the stabbings of the deceased and Mao Kim were not between the appellant, the deceased
    or any of their friends.

[13]

By
    all accounts, the deceased, who was a large man, became quite drunk. He became
    involved in a verbal dispute with the organizer of the event. The dispute never
    became physical and had settled before any altercation began between the
    appellant and the deceased.

The Altercation Begins

[14]

Later
    in the evening, the appellant emerged from the restaurant. He was holding one
    or two beer bottles. He approached a group of men that included the deceased
    and Mao Kim. The appellant asked, Who is Mao?. The deceased moved forward,
    spread his arms and pushed the appellant. The men exchanged words. A fight
    began shortly after the appellant struck the deceased on the head with one or
    two bottles of beer. Others from each group joined the fray.

The Fight

[15]

Several
    persons who attended the party testified about the circumstances in which the
    deceased and Mao Kim were stabbed. The appellant did not testify or call any
    witnesses.

[16]

Mao Kim
    testified that he was hit on the head with a beer bottle, then stabbed. The
    only person he saw with a knife was the appellant who pursued both him and the
    deceased. At first, Kim thought he had been stabbed with a beer bottle. But
    later, after two surgeries, he concluded that the weapon must have been a
    knife.

[17]

Vanny
    Phann, a friend of the deceased and Mao Kim, saw the appellant hit Kim on the
    head with a beer bottle then become involved in the fight with the deceased. Phann
    and Kim began to run away pursued by the appellant who stabbed Kim in the
    abdomen with a knife that resembled a military knife with a small blade.

[18]

Sammy
    Mean, a guest at the party who knew both the appellant and deceased, saw the
    appellant walk out of the restaurant into the corridor. He was carrying two
    beer bottles behind his back. He hit the deceased with the beer bottles. The
    deceased stumbled. The appellant then stabbed the deceased in his side with a
    knife he had in his left hand.

[19]

Rin
    Ken, who is Vanny Phanns aunt, decided to leave after the deceased argued with
    the event organizer. She saw Kim struck on the head, and that he had been
    stabbed in the stomach. She later saw a man open a folding knife. She then saw
    the deceased had been stabbed.

The Aftermath

[20]

The
    deceased, Kim and Phann ran in different directions in the mall after the
    fight. The deceased, clutching his side, headed south towards the vestibule,
    the appellant in pursuit of him. Both the deceased and Kim were taken to
    hospital in the back of a pickup truck.

The Video Surveillance Evidence

[21]

A
    central feature of the evidence adduced at trial was a three-minute segment
    recorded on various surveillance cameras throughout the mall, as well as a
    series of still photographs taken from the videos showing the appellants
    involvement. The appellant is clearly visible because of the distinctive white
    shirt and baseball cap he was wearing that evening.

[22]

On
    the video, the appellant approached a small group of people standing outside
    the restaurant, talking. The group included the deceased, his wife, Mao Kim and
    Vanny Phann. The appellant spoke to them for several seconds. The appellant had
    a beer bottle in one hand and possibly some other object in his other hand. He
    put both hands behind his back, then stepped back as the deceased spoke to him
    gesticulating with his (the deceaseds) arms wide open.

[23]

Within
    10 seconds, the appellant struck the first blow in the direction of the
    deceased and Kim. Beer spilled on the floor. The appellant and deceased moved
    out of camera range. Other fights started. Within seconds, blood spattered on
    glass doors from the direction in which the appellant and deceased had headed.
    The deceased stumbled back into the frame covered in blood on the right side of
    his shirt. Knocked down by a co-accused, the deceased regained his feet and
    headed towards an exit, a trail of blood behind him.

[24]

The
    appellant followed the deceased down a hallway pointing towards him with what
    appears to be a knife in his hand. Seconds later, the appellant caught up to
    the deceased. Further contact appears to have taken place before the appellant
    is restrained by his friends and led back towards the restaurant, his shirt
    covered in blood. One of his friends takes the knife from the appellant, wipes it
    off, folds it up and puts it in his pocket.

The Cause of Death

[25]

The
    deceased suffered three head wounds. One was the result of blunt force trauma,
    and two were incised wounds, cuts caused by a sharp instrument. He also
    suffered a large incised wound to the inside of his right arm. This wound was
    significant because it completely severed the brachial artery and vein, causing
    significant blood loss. The pathologist also noted three stab wounds to the
    right side of the deceaseds back, chest and torso.

[26]

The
    pathologist concluded that the stab wounds had likely been caused by a knife,
    which penetrated the chest to the right lung. Two of the wounds perforated the
    deceaseds diaphragm and his liver. The cause of death was blood loss from the
    sharp force injuries to the right arm and torso, each of which could have caused
    the deceased to die from blood loss.

The Grounds of Appeal

[27]

The
    appellant advances four grounds of appeal. Each has to do with what is said to
    be an error or omission in the final instructions to the jury. As I would
    paraphrase them, the complaints are that the trial judge erred:

i.

in instructing the jury on the mental element in murder under s. 229(a)
    of the
Criminal Code of Canada
,
    R.S.C. 1985, c. C-46
;

ii.

in failing to give a rolled up instruction to the jury;

iii.

in failing to instruct the jury that it could rely on the statement made
    by the co-accused Kimsan Heang in his police interview, entered as part of the
    case for the Crown, in deciding the appellants case; and

iv.

in misapprehending the evidence of Rin Ken upon reviewing it in the
    charge to the jury.

Ground #1: The Mental Element in Murder

[28]

This
    ground of appeal alleges error in the trial judges final instructions to the
    jury about the mental element the Crown was required to prove to establish the
    appellants guilt of murder under s. 229(a).

The Background Facts

[29]

The
    nature of the error alleged does not require any further reference to the
    evidence adduced at trial, but a brief canvass of the positions taken by
    counsel at trial and what the trial judge told the jury on the issue will be of
    service for the discussion that follows.

The Pre-Charge Conference

[30]

At
    the pre-charge conference prior to closing addresses, the trial judge provided
    copies of the final instructions he proposed to give to the jury. He then
    invited submissions from counsel about those instructions.

[31]

The
    trial Crown (not Ms. Baiasu) took the position that the appellants liability
    on the counts of second degree murder and attempted murder, on which he alone
    was charged, was that of the principal under s. 21(1)(a) of the
Criminal
    Code
. The Crown sought an instruction on s. 21(2) on the included offence
    of aggravated assault on the count charging attempted murder.

[32]

Trial
    counsel for the appellant (not Mr. Lockyer or Ms. Taché-Green) agreed that the
    jury should be instructed on the bases of liability suggested by the Crown.

The Closing Addresses of Counsel

[33]

In
    his closing address, the Crown invited the jury to find that the appellant hit
    the deceased over the head with beer bottles then repeatedly stabbed him with a
    knife. It was the Crowns position that the appellant was the principal in both
    counts with which he was charged and that the evidence established the mental
    element required for a finding of guilt on each.

[34]

Defence
    counsel took some issue about the adequacy of the evidence to establish the
    identity of the appellant as the person responsible for both stabbings, but
    acknowledged that the jury might well find that requirement proven beyond a reasonable
    doubt. He invited the jury to find the appellant not guilty of the offences
    charged, but guilty of the included offences of manslaughter and aggravated
    assault.

The Charge to the Jury

[35]

The
    case for the Crown against the appellant on the counts of second degree murder
    and attempted murder was that he was the sole principal, the person who
actually
committed each offence to borrow the language of s. 21(1)(a) of the
Criminal
    Code
. Only the appellant was charged with these two counts.

[36]

The
    case for the Crown against the four co-accused, who were charged with
    manslaughter and aggravated assault, was that each was guilty as an aider, an abettor,
    or a participant in a common unlawful purpose under s. 21(2) in pursuit of
    which the offences charged were committed.

[37]

In a
    portion of the charge headed Modes of Participation, the trial judge gave
    general instructions about each mode of participation in an offence that s. 21 describes:

·

principal

·

aiding

·

abetting

·

common purpose

In his discussion of liability as a principal, the
    trial judge said:

Sinhem Srun is charged alone with the second degree murder of
    Vandin Svay and attempted murder of Mao Kim. He can only be a principal
    participant in those allegations.

[38]

After
    he had provided general instructions about aiding and abetting, which he said
    were only applicable to the counts charging manslaughter and aggravated
    assault, and thus did not apply to the appellant, the judge turned to s. 21(2) and
    concluded: This applies to all counts.

[39]

The
    trial judge then expanded somewhat on his instructions on aiding and abetting
    before he returned to some additional directions on s. 21(2). This time, he
    told the jury that the instructions on s. 21(2) applied
only
to the
    counts of manslaughter and aggravated assault  counts two and four in the
    indictment  with which the appellant was
not
charged. These
    instructions contained no reference to the counts of murder and attempted
    murder or to the appellant.

[40]

In
    his instructions on count one, in which the appellant alone was charged with
    second degree murder, the trial judge described the essential elements of the
    offence in a series of three questions. After accurately reviewing the mental
    elements in s. 229(a), the trial judge continued:

With murder, the person must have actual knowledge to his
    satisfaction that another in the group would likely continue the acts of
    assaulting Mr. Svay to the point of causing death. Subjective means that the
    defendant had to know; in this case, Mr. Srun. And he is alleged to be the
    principal.

[41]

The
    trial judge then explained to the jury how they could determine the appellants
    state of mind from the evidence adduced at trial:

To determine Sinhem Sruns state of mind, what he meant to do,
    you should consider all the evidence. You should consider:

·

what he did or did not do;

·

what he  how he did it or did not do it; and

·

what he said or did not say.

You should look at Mr. Sruns words and conduct before, at the
    time and after the unlawful act that caused Mr. Svays death. All these things
    and the circumstances in  in which they happened may shed light on Mr. Sruns
    state of mind at the time. They may help you decide what he meant or didnt
    mean to do. In considering all the evidence, you use your common sense.

[42]

After
    instructing jurors on the issue of intoxication and how it related to proof of
    the mental element in murder, the trial judge described the verdict choices
    available to the jury, depending upon their conclusion about the persuasive
    effect of the evidence on the issue:

If you are not satisfied beyond a reasonable doubt that Mr.
    Srun had either the state of mind required to make an unlawful killing of
    Vandin Svay, murder, you must find Mr. Srun not guilty of second degree murder
    but guilty of manslaughter.

If you are satisfied beyond a reasonable doubt that Mr. Srun
    had either state of mind to make his unlawful killing of Vandin Svay murder,
    you must find Mr. Srun guilty of second degree murder as charged.

The Arguments on Appeal

[43]

The
    overarching submission of the appellant is that the final instructions on the
    mental element in murder under s. 229(a) were erroneous in three respects. The
    trial judge left the impression that the appellant could be convicted of murder
    and attempted murder as a s. 21(2) party without proof of subjective knowledge
    of death. The instructions were so confusing that the jury could not have
    ascertained its true task on the counts of second degree murder and attempted
    murder. And this confusion was further exacerbated when the trial judge failed
    to correct erroneous statements about the mental element made by Crown counsel in
    his closing address.

[44]

The
    appellant begins by pointing out that the trial judge opened his discussion of s.
    21(2) by telling the jury that the section applied to
all
counts. When
    the judge elaborated on the essential components of s. 21(2), in particular,
    the knowledge requirement, he instructed the jury that knowledge could be
    proven on the basis that the accused knew or should have known that another
    participant in the common unlawful purpose would probably cause the death of
    another person. This, the appellant says, was prejudicial misdirection since the
    Crown was required to prove
actual
knowledge that another would
    intentionally kill the deceased.

[45]

The
    effect of the trial judges misdirection was exacerbated, the appellant argues,
    by what Crown counsel said in his closing address about the state of mind
    required for murder. In describing the elements in s. 229(a)(ii), Crown counsel
    failed to include the knowledge component  means to cause him bodily harm

that
    he knows is likely to cause his death
  in his submissions. This is
    wrong and has the effect of leaving liability for murder to be determined on a
    more expansive basis than the law requires. The Crowns misstatement was not
    corrected by the trial judges proper s. 229(a)(ii) instruction because it was
    followed by an incomprehensible instruction on common purpose. The trial judge aggravated
    the prejudice that the misstatement caused by repeating the Crowns submission
    when outlining the position of the Crown in his charge to the jury.

[46]

The
    appellant concludes that in a case in which the nature of the injuries
    inflicted said little about the assailants state of mind, the instructions on
    the mental element to prove the appellants guilt of second degree murder were
    erroneous and so confusing as to leave the jury in a state of uncertainty about
    the precise standard they were to apply in resolving the single controverted
    issue on this count at trial. The failure of trial counsel to object on this
    ground does not convert what was wrong into something that was right.

[47]

The
    respondent begins with a reminder that we should not focus on a handful of
    words removed from their surroundings, but rather consider the charge as a
    whole, along with the decision tree provided to the jury, the positions
    advanced by counsel and the evidence adduced at trial. When this is done, as
    the authorities require, the instructions meet the standard required of them:
    proper, not perfect.

[48]

The
    final instructions, the respondent says, make it clear that s. 21(2) was
not
a basis upon which the appellant could be found guilty of either second degree
    murder or attempted murder. He could only be found guilty on those counts with
    which he alone was charged as a principal, the person who actually committed
    the offence. The parties provisions, the judge explained to the jury, applied
    only to the counts of manslaughter and aggravated assault, counts two and four
    in the indictment, with which the appellant was not charged.

[49]

The
    respondent acknowledges that the trial judge misspoke when he said to the jury
    that s. 21(2) applied to all counts. But the balance of the charge made it
    clear that:

(i)       the
    liability of the appellant on counts one and three  murder and attempted
    murder  was as a principal only; and

(ii)      the
    liability of those charged in counts two and four  manslaughter and aggravated
    assault  was as parties, that is to say, as aiders, abettors or participants
    in a common unlawful purpose.

Besides, the instructions on the essential elements of
    second degree murder and attempted murder were limited to the appellant as
    principal and contained not a whisper of any other mode of participation.

[50]

In
    addition to the trial judges instructions, the respondent continues, the
    decision trees provided to the jury as deliberation aids confirmed that the
    appellants liability for murder and attempted murder was to be assessed as
    principal, not as a party. And for the co-accused on counts two and four, as
    parties, not as principals.

[51]

The
    respondent accepts that the trial Crown misstated the mental element in murder in
    his closing address to the jury. But the trial Crown told the jury, as did the
    trial judge, that the jury was to take its instructions on the law from the
    judge, not from counsel. And the trial judge accurately described the mental
    element in murder under s. 229(a) despite the inclusion of a statement that
    reflected error.

The Governing Principles

[52]

The
    principles that govern our decision on this ground of appeal are not
    controversial. Some have to do with the standard we are to apply when reviewing
    jury instructions for errors. Others are concerned with instruction content, in
    other words, the substance of what must be said about the mental element in
    murder as defined in s. 229(a), and the modes of participation contained in s.
    21 of the
Criminal Code
.

[53]

The
    entitlement of the parties in a criminal trial is that the jury be properly
    instructed. Perfection is not the standard against which we test jury
    instructions:
R. v. Jacquard
,
[1997] 1 S.C.R. 314, at para. 2.

[54]

Our
    review involves a functional approach. We test the instructions to determine
    whether, taken as a whole, they properly equipped the decision-maker to render
    a true verdict on the evidence adduced and the positions advanced at trial:
R.
    v. Calnen
, 2019 SCC 6, 430 D.L.R. (4th) 471, at para. 8;
R. v. Bailey
,
    2016 ONCA 516, 339 C.C.C. (3d) 463, at para. 42. We also must bear in mind that
    a jury charge does not take place in splendid isolation, but rather in the
    context of the trial as a whole. And so, appellate review of the adequacy of
    jury instructions in fulfilling their function encompasses consideration of the
    addresses of counsel, which may fill in some gaps in the charge:
R. v.
    Daley
,
2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58;
R. v.
    Salah
, 2015 ONCA 23, 319 C.C.C. (3d) 373, at para. 112.

[55]

Section
    229 of the
Criminal Code
defines the mental or fault element which
    must accompany an unlawful killing to make the offence committed murder. Among
    those definitions is s. 229(a)(ii), which includes three components:

·

intention

·

knowledge or foresight

·

recklessness

The vital or essential element is that of intending to
    cause bodily harm of such a grave and serious nature that the accused knew was
    likely to cause the victims death, yet persisting in the assault despite
    knowledge of that risk. Recklessness is almost an afterthought:
R. v. Nygaard
,
    [1989] 2 S.C.R. 1074, at pp. 1087-88
; R. v. Cooper
, [1993] 1 S.C.R.
    146, at pp. 154-55. This state of mind is subjective, not objective.

[56]

Since
    the trial judge told the jury at one point in his instructions that s. 21(2) applied
    to
all
counts, something should be said about the role of the
    subsection in establishing an accuseds culpability for an offence.

[57]

It
    is well-known that s. 21 of the
Criminal Code
abolishes the common law
    distinction between principals and secondary parties. The section renders
    anyone who participates in a crime in any manner described in the section as a
    party to an offence:
R. v. Simon
, 2010 ONCA 754, 263 C.C.C. (3d) 59,
    at para. 37, leave to appeal refused, [2010] S.C.C.A. No. 459.

[58]

A
    person may become a party to an offence under either s. 21(1) or s. 21(2). But
    the sections are different.

[59]

Persons
    who participate in the offence
actually
committed, whether as a principal,
    or as an aider, or an abettor, have their culpability determined under s. 21(1):
Simon
, at para. 39. But this is not so for those whose guilt falls to
    be decided under s. 21(2).

[60]

Section
    21(2), the authorities teach, extends liability for crime in two respects. The
    first concerns the
persons
, the second the
offence
. The
    defining feature of s. 21(2) is participation in a common unlawful purpose. Or
    in the language of the section forming an intention in common to carry out an
    unlawful purpose and to assist each other therein:
R. v. Simpson
, [1988]
    1 S.C.R. 3, at p. 15;
Simon
, at para. 40.

[61]

Section
    21(2) extends liability to
persons
whose participation in the offence
    actually committed would not be captured by s. 21(1). But these persons must
    have participated in the original common unlawful purpose with others and
    either knew or, in most cases, should have known that one or more of the other
    participants in the original purpose would likely commit the offence in
    pursuing their original purpose:
Simon
, at para. 41.

[62]

The
offence
to which s. 21(2) extends liability is not the unlawful purpose to which the
    subsection refers. The offence is a different crime. It is a crime that a
    participant in the original unlawful purpose actually commits in carrying out
    that purpose. In other words, it is a crime incidental or collateral to that
    original unlawful purpose. The
purpose
must be different from the
offence
committed:
Simpson
, at p. 15;
Simon
, at para. 42.

[63]

Section
    21(2) also contains a knowledge or foresight component expressed in the
    alternative: knew or ought to have known. In other words, knowledge or
    foresight may be established on a subjective or objective basis. Despite these
    statutory alternatives, when the offence committed is murder, the knowledge or
    foresight element may only be satisfied by proof that the accused
actually
foresaw or actually knew that another participant in the common unlawful
    purpose would kill another with either state of mind necessary to make the
    killing murder:
R
. v. Laliberty
(1997), 117 C.C.C. (3d) 97 (Ont.
    C.A.), at paras. 35-36; see also
R. v. Ferrari
, 2012 ONCA 399, 287
    C.C.C. (3d) 503, at para. 61.

[64]

Unlike
    s. 21(1)(a), which deals with persons who actually commit an offence, s. 21(2)
    and its components:

·

agreement or purpose

·

offence

·

knowledge

extend liability to persons for offences committed by
    others:
Simon
, at paras. 40-43.

The Principles Applied

[65]

Despite
    the unwarranted intrusion of s. 21(2) into the instructions on second degree
    murder and attempted murder by the reference to its application to all counts,
    as well the somewhat muddled passage on the mental element, I would not give
    effect to this ground of appeal for several reasons.

[66]

First,
    it would not be lost on a contemporary Canadian jury that the appellant was the
    only person charged with second degree murder and attempted murder. All the parties
    in the trial said so. And so did the indictment of which the jury had a copy.
    The case presented against him by the Crown, and argued by both the Crown and
    defence counsel, was that the appellant was the person who stabbed both the
    deceased and Mao Kim, killing one of them, and seriously injuring the other.
    Said in another way, the trial proceeded on the basis that it was the appellant
    and only the appellant who
actually
committed the offences with which
    he, and he alone, was charged. None of the six separate jury addresses
    contained any suggestion that the appellant was anything other than the
principal
,
    the one and only principal.

[67]

Second,
    in introducing his instructions about modes of participation, the trial judge, in
    explaining the liability of a principal said:

Sinhem Srun is charged alone with the second degree murder of
    Vandin Svay and attempted murder of Mao Kim. He can only be a principal participant
    in those allegations.

[68]

Third,
    in his instructions on the specific counts of second degree murder and
    attempted murder in which the appellant alone was charged, the trial judge
    explained what the Crown had to prove beyond a reasonable doubt to establish
    the appellants guilt. The trial judge converted the essential elements of each
    offence, all of which were the subject of legally correct instructions, into
    questions for the jury to consider and advised them of the verdict and further
    deliberation consequences of the decisions available to them on each issue.
    Throughout these instructions, the appellants participation was left as a
    principal, the sole principal. No instructions were given about any other mode
    of participation, including s. 21(2), on these two counts.

[69]

Fourth,
    the decision trees provided to the jury as deliberation aids on the counts of
    second degree murder and attempted murder duplicated the questions posed for
    the jury in the charge. Although decision trees are not themselves legal
    instructions, they made it plain and obvious in diagrammatic form that the
    appellants liability was as a principal and only as a principal. In this
    respect, the decision trees in connection with the co-accused, charged jointly
    with manslaughter and aggravated assault, make it equally obvious that their
    liability was to be resolved as aiders, abettors or s. 21(2) parties.

[70]

Fifth,
    by contrast to the instructions on the counts of second degree murder and
    attempted murder requiring proof of the appellants participation as the sole
    principal, the instructions on the joint counts of manslaughter and aggravated
    assault, limited consideration of the liability of the co-accused to aiding,
    abetting, and s. 21(2).

[71]

Sixth,
    the substantive instructions on s. 21(2) referred specifically to counts two
    and four, the counts charging the four co-accused but not the appellant jointly
    with manslaughter and aggravated assault. These instructions made no reference
    to the offences of second degree murder and attempted murder, by name or count
    number.

[72]

In
    the end, I am satisfied that the inadvertent misstatement that s. 21(2) applied
    to all counts, which attracted no objection at trial, and the issues related
    to the Crowns misstatement on s. 229(a)(ii), were harmless errors, devoid of
    any prejudicial potential. No harm. No foul.

Ground #2: The Rolled Up Instruction

[73]

This
    ground of appeal also alleges error in the charge to the jury, but this time
    because of something not said. The focus once again is on the mental or fault
    element in murder, more specifically, about something, the appellant says, the
    jurors should have been directed to take into account in assessing the adequacy
    of the Crowns proof of the mental element but were not invited to do so.

[74]

This
    claim of error does not require further reference to the evidence about the
    circumstances of the offences charged, but is informed by brief mention of the
    positions of the parties at trial and the instructions of the trial judge about
    how the jury was to approach proof of the mental element in murder.

The Positions of the Parties at Trial

[75]

At a
    pre-charge conference, defence counsel sought instructions on intoxication,
    self-defence and provocation. He also asked the trial judge to provide a rolled
    up instruction to the jury, including reference to evidence of intoxication
    and provocation.

[76]

The trial
    Crown agreed that intoxication should be left to the jury. He submitted that if
    the trial judge concluded that the statutory partial defence of provocation had
    an air of reality, then a rolled up charge could include reference to
    provocation.

[77]

The trial
    judge concluded that there was no air of reality to self-defence. He did not
    instruct the jury on the statutory partial defence of provocation.

The Jury Instructions

[78]

The
    trial judge instructed the jury on how to determine whether the Crown had proven
    the mental element necessary to make an unlawful killing murder. The relevant
    excerpt appears at paragraph 41 of these reasons.

[79]

Following
    those instructions, the trial judge directed the jury on intoxication,
    explaining that evidence of consumption of eight bottles of beer was something
    for the jury to consider, along with the rest of the evidence that shed light
    on the appellants state of mind at the time of the offence. The rest of the evidence
    included the appellants words and conduct before, at the time and after the
    stabbing.

[80]

The
    trial judge did not include what has become the typical rolled up instruction
    to the jury in his charge.

The Arguments on Appeal

[81]

In
    this court, the appellant contends that the trial judge erred in failing to
    include a rolled up charge in his final jury instructions. The charge should
    have included references to the evidence of intoxication and the provoking
    conduct of the deceased, and pointed out to the jury that this evidence was
    relevant for them to consider in assessing whether the Crown had proven the
    essential mental element beyond a reasonable doubt. The words and conduct of
    the deceased, even if it did not amount to provocation as it was then defined
    under s. 232(2), may have produced in the appellant a state of excitement,
    anger or disturbance such that he might not have contemplated the consequences
    of his conduct. This, in turn, might raise a reasonable doubt as to whether the
    appellant considered or intended the consequences of that conduct.

[82]

The
    appellant says that it is well-settled in this province that a jury trying a count
    of murder should be instructed to consider the cumulative effect of, among
    other things, evidence of alcohol consumption and of provocative words and
    conduct by the deceased or others in deciding whether the mental element
    required to make an unlawful killing murder has been proven beyond reasonable
    doubt. Its omission is fatal to the validity of the conviction.

[83]

The
    respondent acknowledges the propriety of including a rolled up charge in
    final instructions in appropriate cases. But the instruction is usually given,
    the respondent says, where the jury is charged on various discrete defences,
    justifications or excuses. As for example, self-defence, intoxication and
    provocation. Even where the statutory partial defence of provocation lacks an
    air of reality, evidence of an accuseds anger, excitement or instinctive
    reaction, which can have an impact on an accuseds state of mind, is relevant
    to proof of the mental element in murder and the jury should be so instructed.
    This ensures that jurors do not take a compartmentalized rather than a holistic
    approach to the evidence relevant to the state of mind issue.

[84]

In
    this case, the respondent says, there was no air of reality to self-defence, or
    the statutory partial defence of provocation. What is more, since the appellant
    did not testify or call any evidence, the record is barren of any evidence of
    anger, fear, excitement, instinctive reaction or mental disturbance to fund a rolled
    up instruction.

[85]

The
    respondent makes two further points.

[86]

The
    first is that there is no mandatory word formula required for a rolled up
    instruction. What must be decided is whether the charge, considered as a whole
    and in light of what occurred at trial, including the positions advanced by
    counsel, adequately tutored the jury on their obligation to consider
all
the evidence on the issue of the mental element. Considered in this, the proper
    light, the instructions fulfilled their function.

[87]

The
    second is that the jury had available, and were invited to review the real
    evidence provided by the video surveillance. This, coupled with the
    instructions given, which generally and specifically underscored the jurys
    obligation to consider
all
the evidence, provided the functional
    equivalent of a rolled up instruction and well equipped this jury to perform
    its task.

The Governing Principles

[88]

Whether
    either mental or fault element in s. 229(a) has been established with the
    required degree of certainty is a question of fact for the trier of fact to
    decide. In a jury trial, the jury makes this decision. And it makes this
    decision on the basis of the whole of the evidence adduced at trial, and by
    drawing reasonable inferences from that evidence. The evidence must be relevant
    to this material issue and properly admissible in its proof. Most often, the
    evidence is circumstantial. The task assigned to the jury on this issue is to
    assess the cumulative effect of all the evidence against the standard of proof
    required to determine whether it is adequate to the task or falls short of the
    mark. The standard of proof applies to the evidence as a whole, not to each
    individual item of evidence:
R. v. Flores
, 2011 ONCA 155, 269 C.C.C. (3d)
    194, at para. 69.

[89]

Among
    the items of evidence offered in proof of an accuseds state of mind is
    evidence of things said and done by the accused and others contemporaneous with
    the commission of the offence and the circumstances in which those words are
    spoken and that conduct occurred. Routinely, judges instruct jurors to consider
    the
cumulative
effect of this evidence in determining whether either
    of the mental elements required by s. 229(a) has been established:
Flores
,
    at para. 70, citing
R. v. Jaw
, 2009 SCC 42, [2009] 3 S.C.R. 26, at
    para. 25.

[90]

Typically,
    items of evidence may be relevant, material and admissible on more than one
    issue in a criminal trial. As for example, evidence may be relevant to a
    specific defence, justification or excuse, and to the mental or fault element
    essential to be proven to establish an accuseds guilt:
R. v. Nealy
(1986),
    30 C.C.C. (3d) 460 (Ont. C.A.), at pp. 468-69;
R. v. Cudjoe
, 2009 ONCA
    543, 68 C.R. (6th) 86, at para. 103.

[91]

To ensure
    that jurors do not take a compartmentalized or siloed approach to evidence
    relevant, material and admissible on more than one issue, considering it only in
    relation to a particular defence, justification or excuse, then never considering
    it again, we expect judges to ensure that jurors understand that the use of
    this evidence is not spent. In the end, what jurors must understand, whether by
    express instruction or otherwise, is that in deciding whether the Crown has proven
    either state of mind necessary to make an accuseds unlawful killing of another
    murder, they are to consider
all
the evidence that illuminates the
    issue, even if they have rejected the specific defences, justifications and
    excuses in play, to which that evidence also relates:
Cudjoe
, at para.
    109.

[92]

However,
    not every case in which evidence of alcohol consumption and some form of
    provocative words or conduct are involved will require a specific instruction
    about the cumulative effect of evidence of these factors:
Nealy
, at p.
    469. In most cases, such an instruction is preferable. In others, it will be
    essential:
Nealy
, at p. 469. But even where such an instruction is
    necessary to do justice in a case, no sacred word formula need be pronounced:
Flores
,
    at para. 74. What is important is the message, not the medium.

[93]

A
    final point has to do with the items of evidence which may be included in a rolled
    up instruction. The touchstone is, of course, relevance to the issue at hand:
    the mental state of the accused contemporaneous with the unlawful killing.
    Constituents often include, but are not limited to, evidence of alcohol
    consumption; provocative words or conduct by the deceased or others; mental
    disorder falling short of what would lead to a verdict of NCRMD; instantaneous
    reaction, among others. The provocative words or conduct need not amount to
    provocation under s. 232(2) the
Criminal Code
:
Cudjoe
, at
    paras. 107-108.

The Principles Applied

[94]

Several
    factors persuade me to reject this ground of appeal, despite the absence of a
    traditional rolled up charge as requested by defence counsel.

[95]

To
    assess the impact on the failure to include an instruction cast in the familiar
    terms of a rolled up instruction seen in this province, it is helpful to
    begin with a reminder about the
purpose
that underlies the typical
    instruction. That purpose is to ensure that jurors do
not
approach
    their decision on this issue in a compartmentalized way; that is to say, having
    rejected any justifications, excuses or defences the evidence tends to support,
    considering the probative force of the evidence spent and no longer available
    to determine another issue despite its relevance to that issue. In a positive
    sense, the rolled up instruction underscores the general direction, oft-repeated
    in jury charges, that factual determinations are to be made after consideration
    of the cumulative effect of the whole of the evidence bearing upon the issue.
    But as we know, express instruction is not the only way to ensure the jurys
    understanding of the point.

[96]

Second,
    the effect of the non-direction. When the rolled up instruction first saw
    daylight in the mid-1980s, it was considered preferable, only sometimes
    mandatory. More recently, it appears to have migrated towards the mandatory end
    of the spectrum. But, wherever its place on the spectrum, it is not a
per
    se
rule to be incanted in every jury charge, the evidence notwithstanding.
    The need for the instruction depends on the evidence. So too whether its
    inclusion is discretionary or mandatory.

[97]

Likewise,
    the effect of non-direction on the sustainability of a verdict is a variable,
    not a constant. Every non-direction is not misdirection. This is not a case
    where something was said which would have made wrong what was left unsaid leading
    to a possible miscarriage of justice:
R. v. Demeter
(1975), 25 C.C.C. (2d)
    417 (Ont. C.A.), at pp. 436-37, affd on other grounds, [1978] 1 S.C.R. 538.

[98]

Third,
    the impact of the non-direction depends significantly on the evidentiary
    foundation for the instruction. There must be an air of reality to underpin the
    claim that particular evidentiary content be poured into the instruction. It is
    especially so where, as here, the cupboard is bare of any evidence through out-of-court
    statements contemporaneous with the events, police interviews, or in-court
    testimony to afford a window into the appellants mental state.

[99]

Fourth,
    the instructions given. Taken as a whole, the instructions to the jury
    repeatedly emphasized their obligation to consider
all
the evidence in
    resolving the factual issues that were theirs to decide. In connection with
    their decision about the mental element in murder, the jury was directed to
    consider what the appellant said and did before, at the time and after the
    killing; the circumstances in which the killing occurred; the manner in which
    the appellant acted; and to consider
all
the evidence in reaching
    their conclusion. They were told to take into account the appellants
    consumption of alcohol and its disinhibiting effect on conduct and restraint.

[100]

Finally, I do not
    suggest that the charge was perfect. It was not. Nor need it have been. On the
    evidence in this case, however, it was adequate to the task demanded of it.

Ground #3: Jury Use of the Statement of Kimsan Heang

[101]

This ground of appeal
    has to do with the admissibility of a piece of evidence, an out-of-court police
    interview of a co-accused, for a purpose other than that for which it was tendered
    and received at trial.

[102]

To begin, some
    background.

The Statement of Kimsan Heang

[103]

About a month after
    the stabbings of the deceased and Mao Kim and the arrests of the appellant and
    co-accused, police interviewed Kimsan Heang. The interview was audio and video
    recorded, transcribed and admitted at trial, along with the transcript, as part
    of the case for the Crown.

The Positions of the Parties at Trial

[104]

The Crown tendered the
    statement and sought to use it as evidence
only
in connection with its
    maker, Kimsan Heang.

[105]

Trial counsel for the
    appellant sought to use the exculpatory parts of this statement in support of
    the defence he advanced.

[106]

Counsel for the other
    co-accused did not seek to have Heangs interview admitted for consideration in
    the case against them. They opposed its admission and use as part of the case
    of the appellant.

The Ruling of the Trial Judge

[107]

The trial judge ruled
    that Heangs statement was admissible only in relation to its maker. He
    rejected the submission of trial counsel for the appellant that the statement,
    at least its exculpatory parts, should be admitted as evidence for the
    appellant.

[108]

Trial counsel for the
    appellant did not seek the admission of Heangs statement under the principled exception
    to the hearsay rule, or on the basis that the rigours of the hearsay rule
    should be relaxed, since the proponent of the evidence was an accused charged
    with serious offences.

The Jury Instructions

[109]

None of the accused
    testified or called evidence at trial.

[110]

The trial judge
    instructed the jury on its use of the police interview of Kimsan Heang twice in
    the course of his charge. In each passage, one of which included a
R. v.
W.(D.)
, [1991] 1 S.C.R. 742
instruction, the
    trial judge told the jury that the interview applied
only
to their
    consideration of the case against Kimsan Heang and not to any co-accused even
    if the interview referred to something said or done by a co-accused.

The Arguments on Appeal

[111]

According to the
    appellant, several portions of Kimsan Heangs police interview were exculpatory
    of the appellant, and thus beneficial to the defence he advanced at trial. The
    absence of any intention to engage in violence at the party, much less to kill
    anyone there. The spontaneous and consensual nature of the fight amongst those
    involved. The relative numbers of those involved on both sides of the fray.

[112]

The appellant accepts
    the general rule that when the Crown introduces an out-of-court statement by
    one of several co-accused in a joint trial under the admissions doctrine, the
    statement is evidence only in relation to its maker. This is so even if the
    statement refers to things done or said by persons other than its maker, as for
    example, by co-accused.

[113]

Despite this general
    rule, the appellant says, there are two routes by which Heangs police
    interview can become evidence for the jury to consider in deciding the case of
    the appellant.

[114]

In
R. v. Waite
,
    2014 SCC 17, [2014] S.C.R. 341, the Supreme Court of Canada allowed for the
    possibility that an accused could seek to have the out-of-court statements of a
    co-accused admitted for their truth under the principled exception to the
    hearsay rule. The appellant contends that such an application would likely have
    succeeded had it been made at trial and would if made at a new trial. Necessity
    is uncontroversial since the appellant could not compel Heang to testify at
    their joint trial. Several indicia of reliability readily appear. Heang had spoken
    to a lawyer and was repeatedly admonished to tell the truth. The statement was
    provided to investigators after Heang had been charged and was made by a person
    with peculiar knowledge of the subject about which he spoke.

[115]

The appellant also
    reminds us that a trial judge has a discretion to relax the rigours of an
    exclusionary rule, such as the hearsay rule, where the defence seeks to have
    evidence admitted and where it is necessary to do so to prevent a miscarriage
    of justice. The trial judge failed to consider this principle in connection
    with the police interview of Kimsan Heang.

[116]

The respondent
    acknowledges that the general rule limiting out-of-court statements by one of
    several co-accused on a joint trial to resolution of the case for and against
    only their maker may give way in either of the circumstances described by the
    appellant. But neither was advanced at trial as a basis upon which to have the exculpatory
    parts of Heangs police interview admitted as substantive evidence. And neither
    would have achieved its goal had it been argued in the way advanced here for
    the first time.

[117]

Under the principled approach,
    the respondent submits, the appellant could not demonstrate threshold reliability
    under either the substantive or procedural heads of reliability. The contents
    of the interview were inherently unreliable. In the main, the interview
    consisted of double hearsay. Heang simply reported what others had told him
    about conversations and events. Heang lacked any peculiar or particular
    knowledge of what he disclosed. Among the sources of his information was
    another co-accused, Chea, who was opposed to the admission of the evidence as
    proposed by trial counsel.

[118]

The respondent says
    that the appellants claim that the exculpatory parts of Heangs interview
    would have assisted the appellants defence falls away when the statement
    itself is examined. Apart altogether from the double hearsay aspect of Heangs
    account, the statement does not support the claim that the fight was
    spontaneous and involved the appellants group outnumbered by the deceased and
    his friends. What appears is a settling of accounts by the appellant who had
    armed himself in advance of the confrontation outside the restaurant.

[119]

In any event, the
    respondent continues, trial counsel put before the jury, in one way or another,
    what would be considered favourable to the appellant in the record of Heangs
    interview. What counsel sought to ensure the jury understood from Heangs
    statement was:

i.

the
    amount of beer the appellant drank before the stabbing;

ii.

the
    appellant arrived at the party with his girlfriend who remained with him
    throughout; and

iii.

the reason
    underlying the confrontation.

Defence counsel elicited from Heangs sister evidence
    that the appellant brought a date to the party where he drank at least eight beers.
    And counsel pointed out to the jury the absence of evidence about any plot or
    plan to kill anyone and emphasized the spontaneous nature of the fight.

The Governing Principles

[120]

The principles that
    control our decision on this ground of appeal are not controversial. They
    involve, as is so often the case with the adjective law of evidence, a rule and
    an exception.

[121]

A statement made by an
    accused to police, which is not made in furtherance of any common unlawful
    design, is evidence for and against only its maker and it cannot be considered
    in determining the co-accuseds culpability:
R. v. Suzack
(2000), 141 C.C.C.
    (3d) 449 (Ont. C.A.), at para. 117, leave to appeal refused, [2000] S.C.C.A.
    No. 583;
R. v. Parberry
(2005), 202 C.C.C. (3d) 337 (Ont. C.A.), at
    paras. 15, 21. Thus, where the Crown tenders such a statement of one accused in
    a joint trial of several, the statement is not evidence for or against any
    accused other than its maker. The jury should be instructed accordingly:
Suzack
,
    at para. 117.

[122]

In some circumstances,
    an accused in a joint trial other than the maker of a statement tendered in
    evidence at trial by the Crown may be able to rely on the statement. In order
    to do this, the accused who seeks to rely on the co-accuseds out-of-court
    statement must establish its admissibility for this purpose under the
    principled exception to the hearsay rule:
Waite
, at para. 4. A failure
    to advance the statement on this basis, or an unsuccessful attempt to do so,
    results in the application of the general rule.

[123]

The
necessity
requirement of the principled exception to the hearsay rule may be established
    where the party seeking admission of the hearsay statement cannot compel
    testimony from the declarant. This of course occurs in the joint trial of
    several accused, each of whom is a competent but not a compellable witness at
    the instance of any other accused: see generally
R. v. Hawkins
, [1996]
    3 S.C.R. 1043, at paras. 71-73. Indeed, unavailability and thus necessity can
    be established even where the declarant is not unavailable in the strict
    physical sense:
Hawkins
, para. 71;
R. v. B. (K.G.)
, [1993] 1 S.C.R.
    740, at pp. 797-98;
R. v. Devine
, 2008 SCC 36, [2008] 2 S.C.R. 283, at
    para. 16.

[124]

The
reliability
requirement may be established in either or both of two ways.

[125]

Procedural
reliability

is established when there are
    adequate safeguards for testing the evidence despite the fact that the
    declarant has not given the evidence in court, under oath or its equivalent and
    under the scrutiny of contemporaneous cross-examination:
R. v. Khelawon
,
    2006 SCC 57, [2006] 2 S.C.R. 787, at para. 63. These substitutes must provide a
    satisfactory basis for the trier of fact to rationally evaluate the truth and
    accuracy of the hearsay statement:
Khelawon
, at para. 76;
Hawkins
,
    at para. 75. Among the substitutes for traditional safeguards are video
    recording the statement, administration of an oath and warning the declarant
    about the consequences of lying:
B. (K.G.)
, pp. 795-96. However, some
    form of cross-examination, as for example of a recanting witness at trial, is
    usually required:
R. v. Bradshaw
, 2017 SCC 35, [2017] 1 S.C.R. 865, at
    para. 28;
R. v.  Couture
, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras.
    92-95.

[126]

Substantive
reliability
is established where the
    hearsay statement is inherently trustworthy. To determine whether the statement
    is inherently trustworthy, a trial judge considers the circumstances in which
    the statement was made and any evidence that corroborates or conflicts with the
    statement:
Bradshaw
, at para. 30. The standard for substantive
    reliability is high: the judge must be satisfied that the statement is so
    reliable that contemporaneous cross-examination on it would add little if
    anything to the process:
Khelawon
, at paras. 49, 62, 107;
Bradshaw
,
    at para. 31.

[127]

Procedural and
    substantive reliability are not mutually exclusive. They may work in tandem in
    that elements of both can combine to overcome the specific hearsay dangers a
    statement might present even where each, on its own, would be insufficient to
    establish reliability:
Fredericks v. R
., 2018 NBCA 56, 365 C.C.C. (3d)
    498, at para. 77;
Bradshaw
, at para. 32.

[128]

Even where the
    proponent of hearsay evidence satisfies the necessity and reliability
    requirements of the principled approach to hearsay, it does not follow that the
    hearsay statement will be admitted. The trial judge retains a discretion to
    exclude otherwise admissible hearsay where its probative value is outweighed by
    its prejudicial effect:
Hawkins
, at para. 85;
Khelawon
, at paras.
    3, 49;
Bradshaw
, at para. 24. But where the proponent of the evidence
    is an accused, this exclusionary discretion becomes engaged only where the
    probative value of the statement is substantially outweighed by its prejudicial
    effect:
R. v. Seaboyer
;
R. v. Gayme
,
[1991] 2 S.C.R. 577
, at p. 611
.

[129]

The final point
    concerns the availability of a judicial discretion to admit hearsay evidence
    under the principled exception despite the proponents failure to satisfy the
    requirements of that exception. This discretion may be exercised when the
    proponent of the evidence is an accused and the admission of the evidence is
    necessary to prevent a miscarriage of justice:
R. v.  Kimberley
(2001),
    157 C.C.C. (3d) 129 (Ont. C.A.), at para. 80, leave to appeal refused, [2002]
    S.C.C.A. No. 29. But this inclusionary discretion is not so expansive as to countenance
    an abandonment of the inquiry into threshold reliability:
Kimberley
,
    at paras. 80-81.

The Principles Applied

[130]

For reasons that I
    will develop, I would not accede to this ground of appeal.

[131]

The starting point is
    the general rule. And the general rule is and remains that out-of-court
    statements made by one of several co-accused not in furtherance of a common
    unlawful design tendered by the Crown in a joint trial are admissible
only
in relation to their maker. Where, as here, another accused in that joint trial
    seeks to make some other evidentiary use of a co-accuseds out-of-court
    statement, it falls to that accused to satisfy the requirements for the
    proposed use of the evidence, including any applicable admissibility rules.

[132]

In this case, the
    appellant sought the introduction of the co-accused Heangs out-of-court
    statement in order to establish the truth of some of its contents which he
    claimed were exculpatory of him, at least about the legal characterization of
    the unlawful killing. In this respect, he was confronted by the hearsay rule.
    Unless he could bring his claim within a listed exception (none is advanced) or
    the principled exception, he was bound to fail in his request.

[133]

At trial, the
    appellant pursued the objective he sought. However, it was quickly abandoned
    when Crown counsel drew the trial judges attention to the decision of the Alberta
    Court of Appeal in
R. v. Waite
, 2013 ABCA 257, 309 C.C.C. (3d) 255,
    affd 2014 SCC 17, [2014] 1 S.C.R. 341. Trial counsel did not attempt to
    qualify the statement as admissible under the principled exception to the
    hearsay rule nor invited the trial judge to exercise his discretion to admit
    the evidence to prevent a miscarriage of justice.

[134]

Setting to one side
    trial counsels failure to pursue the admissibility issue at trial and in the
    absence of any claim of ineffective assistance of counsel, I am unable to find
    any support for the proposed use of this evidence through the principled
    exception to the hearsay rule.

[135]

To begin, the exculpatory
    evidence upon which the appellant sought to rely was not simply hearsay, but
    double hearsay. Thus, to gain its admission, the appellant was bound to show,
    if he could, a basis upon which each level of hearsay could be admitted. This
    he did not try to do, nor could he have succeeded in doing so.

[136]

Implicit in the
    appellants submission seems to be a claim for the admissibility of only the exculpatory
    part of the out-of-court statement. No authority was cited for this proposition
    which is of questionable validity. As with any out-of-court statement, a
    proponent is not entitled to pick and to choose among its constituent parts. He
    or she takes the good with the bad.

[137]

Assuming that the
    necessity requirement in the principled approach to hearsay had been met
    because Heang was
not
a compellable witness at the appellants
    request, the proposed evidence would not seem capable of satisfying the
    requirements of either procedural or substantive reliability.

[138]

Common to both
    procedural and substantive reliability inquiries is the fundamental nature of
    this evidence as largely, if not entirely, double hearsay. As we saw from
Bradshaw
,
    procedural reliability usually requires some form of cross-examination of the declarant.
    No such prospect exists here. Although the statement was video recorded, it was
    not taken under oath nor was there any meaningful warning given about the
    consequences of lying. Such surrogates as there are for the usual means of
    testing evidence  like personal presence, oath and contemporaneous
    cross-examination  do not provide a satisfactory basis for the trier of fact
    to rationally evaluate the truth and accuracy of Heangs statement.

[139]

Nor can it be said
    that the high standard for substantive reliability has been met. Substantive
    reliability is established where the statement is inherently trustworthy, that
    is to say, that the circumstances in which the statement was made and any
    corroborative or conflicting evidence render it so reliable that contemporaneous
    cross-examination of the declarant would add little if anything to the process.
    This unsworn statement by one of five accused made one month after arrest simply
    displays none of the indicia of trustworthiness.

[140]

Relaxation of the
    rigours of the hearsay rule would also not assist the appellants case for
    admissibility. As the authorities make clear, relaxation of the rule does not
    mean that the reliability requirement is abandoned. And it is the failure of
    this evidence to satisfy the reliability requirement that renders it
    inadmissible.

[141]

A final point concerns
    the residual discretion of a trial judge to exclude otherwise admissible
    evidence on the basis of the balance between its probative value and its
    prejudicial effect. This was a joint trial. The other accused opposed the
    introduction of this statement for the purposes proposed by the appellant. Even
    with the standard applicable to defence evidence, it is difficult to see how
    this double hearsay would survive the analysis.

[142]

In the end, the exculpatory
    aspects of Heangs statement got before the jury as part of the appellants
    defence through trial counsels closing address. Even if the trial judge erred
    in failing to admit Heangs statement for the purposes advanced by the
    appellant, the result would not have been different.

Ground #4: Misapprehension of Evidence

[143]

The final ground of
    appeal alleges that the trial judge misapprehended the evidence of a witness
    and misstated it in the charge to the jury. A brief sketch of the background is
    sufficient for an understanding of the alleged error.

The Evidence of Rin Ken

[144]

Rin Ken, a guest at
    the party, testified that she had seen a man with a folding knife chase after
    the deceased. This man wore a white shirt with a kind of line or with a
    checker board. He was dressed differently than the appellant who was wearing a
    white shirt and white baseball cap. Ms. Ken was shown the video, including the
    portion which depicted pursuit of the deceased. She did not see the man whom
    she had described in the video.

The Charge to the Jury

[145]

In his final
    instructions, the trial judge provided the usual directions to the jury about
    the purpose of the evidentiary references contained in the charge and the
    obligation of the jury to rely on their individual and collective recollection
    of the evidence, rather than that of the trial judge or counsel. Parts of this
    instruction were repeated from time to time during the charge.

[146]

The trial judge
    referred to Rin Kens testimony in his review of the evidence of various
    witnesses on the issue of whether the appellant had caused the death of the
    deceased. The judge said:

Rin Ken is the woman holding the orange purse in the video. She
    was standing close to the fight site at its commencement. She saw Vandin Svay
    put pressure on his right side with his left hand. She was aware that Vandin
    was bleeding.

Ms. Ken saw a man wearing a shirt that was white with a
    checkerboard pull out a knife that could be folded. This man with the knife
    chased Vandin from the fight scene along the hallway. The blade of the knife
    was about six inches or 15 centimetres long. In the hallway area, Rin Ken did
    not see the man with the knife do any act with it.

The Positions of Counsel at Trial

[147]

Trial counsel for the
    appellant did not object to the trial judges final instructions about this
    evidence.

[148]

In his closing address
    to the jury, trial counsel acknowledged that the jury would likely find that
    the appellant had stabbed both victims. He asked the jury to find the appellant
    not guilty of second degree murder and attempted murder, but guilty of
    manslaughter and aggravated assault. In connection with Rin Kens evidence,
    counsel said:

I dont know about Rin Ken and this phantom with the long black
    hair and the moustache and the  the white check shirt that didnt appear in
    any of the videos. I dont know what she was talking about.

The Arguments on Appeal

[149]

In this court, the
    appellant says that the trial judge told the jury that the man Rin Ken saw
    chasing the deceased with the knife was the man who chased him along the
    hallway. But the jury knew from the video that it was the appellant who chased
    the deceased along the hallway. Ken swore that the video did not depict the man
    she had seen with the knife. This misstatement of Kens evidence, the appellant
    says, removed from the jurys consideration that a co-accused, Chea, or a third
    party had a knife during the fight and was responsible for the stabbings. This
    caused the appellant significant prejudice and warrants a new trial.

[150]

The respondent says
    that the trial judge accurately described the testimony of Rin Ken. What the
    trial judge did not do was to point out that the witness testimony on this
    issue was contradicted by the video which provided objective evidence about
    what actually happened. Rin Ken did not see the stabbing. What she did see was
    the deceased bleeding and using his left arm to put pressure on the right side
    of his torso heading towards an exit. At that time, which was obviously after
    the stabbing, Rin Ken saw this man with a white shirt and checker board"
    pattern pull out a folding knife and chase the deceased. The video depicted no
    such activity.

[151]

In his closing address
    at trial, defence counsel acknowledged that Rin Kens testimony was
    contradicted by the rest of the evidence adduced at trial. Counsel distanced himself
    from the evidence appellate counsel now advances as warranting a new trial
    because that evidence was not properly described by the trial judge in his
    charge to the jury.

[152]

The respondent also
    points out that, in the final analysis, the video was the best evidence of who
    did what to whom. What is more, the trial judge made it clear to the jury that
    it was their recollection of the evidence that counted, not that of the trial
    judge or of counsel.

The Governing Principles

[153]

No parade of precedent
    is required to establish that in a criminal jury trial, decisions on issues of
    fact are for the jury to make on the basis of the whole of the evidence adduced
    at trial and reasonable inferences drawn from that evidence.

[154]

Equally
    uncontroversial is the obligation of the judge presiding in a criminal jury
    trial to review the substantial features of the evidence adduced and to relate
    it to the issues raised so that the jury appreciates the value and effect of
    that evidence:
Azoulay v. The Queen
, [1952] 2 S.C.R. 495, at p. 498.
    Invariably, juries are instructed that they are to make their decision on the
    basis of
their
individual and collective recollections of the
    evidence, not that of the trial judge or counsel.

[155]

As a general rule, a
    misstatement of a piece of evidence in a jury charge does not amount to
    reversible error, especially where there has been no objection taken at trial.
    The same may be said of a failure to refer to an item of evidence. But
    sometimes the misstatement or omission can be cause for reversal. As for
    example, where the misstatement relates to a very important piece of evidence
    bearing on the determinative issue at trial, or the omission is of a piece of
    evidence that is the sole support for a defence:
R. v. Bucik
, 2011 ONCA
    546, 274 C.C.C. (3d) 421, at para. 23;
Demeter
, at pp. 436-37.

The Principles Applied

[156]

For several reasons, I
    would reject this ground of appeal.

[157]

First, it is at least
    debatable whether what the trial judge said about Rin Kens evidence in fact
    misstated what she had said. There is also some force in the respondents
    submission that the failure to juxtapose this evidence with the objective reality
    afforded by the video surveillance that the appellant was the pursuer enured to
    the appellants benefit.

[158]

Second, trial counsel
    brushed aside this evidence in his closing address. It seems offered now in
    support of a theory that someone else may have been the person responsible for
    the deceaseds death. But the position advanced at trial was not a denial of
    authorship, but rather a submission of a lesser level of culpability.

[159]

Third, assuming this
    reference was a misstatement of Rin Kens evidence, it was not about a very
    important piece of evidence relating to the determinative issue in the case or
    the defence advanced.

[160]

Fourth, although not
    fatal to a successful claim of error, trial counsel did not object to this
    aspect of the charge.

[161]

Finally, the complaint
    is of a misstatement of an item of evidence adduced at trial. This is one of
    the very reminders that the trial judge provided to the jury about his
    references to the evidence. There is no reason to think that the jury would
    have ignored his direction in connection with this item of evidence.

Conclusion

[162]

For these reasons, I
    would dismiss the appeal.

Released: AH MAY 31 2019

David Watt J.A.

I agree. Alexandra Hoy A.C.J.O.

I agree. Edward Then J. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sullivan, 2019 ONCA 412

DATE: 20190517

DOCKET: C64566

Doherty, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Sullivan

Appellant

Stephanie DiGiuseppe, for the appellant

Joan Barrett, for the respondent

Heard: May 16, 2019

On appeal from the sentence
    imposed by Justice David Salmers of the Superior Court of Justice on February
    22, 2017.

APPEAL BOOK ENDORSEMENT

[1]

The trial judge determined that a five-year sentence was appropriate in
    all of the circumstances. Having regard to credit for presentence custody (1,226
    days), the trial judge then imposed a sentence of 599 days, to be followed by
    three years probation.

[2]

The offence was very serious and the appellants mental condition makes
    him a significant risk. We see no error in the imposition of a five-year
    custodial sentence.

[3]

The parties agree that the appellant was entitled to an additional 41
    days credit for presentence custody. This reduces the sentence to 558 days (599
     41). The appellant has fully served that sentence. Consequently, the
    custodial portion of the sentence is varied to time served (558 days).

[4]

The appellant also argues that the probation term should be varied from
    three years to one year and that he should be credited for that one year
    based on his release on bail pending appeal about 14 months ago on terms which
    he says are similar to the probation.

[5]

The Crown tendered fresh evidence on appeal. The appellant did not
    object to its admission. That evidence demonstrates that the appellant has
    apparently breached the terms of his bail release on several occasions. We note
    those terms were not onerous.

[6]

The probation order, which included treatment and counselling terms, was
    an appropriate part of the sentence. In fact, it was essential to the
    protection of the public. Nothing that has happened since the appellant was
    released on bail pending appeal offers any support for the conclusion that the
    probation order is any less necessary than it was when it was imposed.

[7]

The appeal is allowed to the extent of varying the custodial term to
    time served. The parties also agree that the victim surcharge should be
    deleted. Otherwise the sentence remains as imposed.