COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Saleh, 2013 ONCA 742

DATE: 20131210

DOCKET: C52879

Watt, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fadi Saleh

Appellant

Marie Henein and Christine Mainville, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard:  May 16, 2013

On appeal from the conviction by Justice Colin D.A.
    McKinnon of the Superior Court of Justice, sitting with a jury on February 26,
    2010.

Watt J.A.:

[1]

In
    the drug business, loyalty and integrity are important.  At every step along
    the way.  Wholesalers.  Brokers.  Retailers.  Street dealers.  Everyone has
    their role.  And everyone gets their due, their full due.  No one gets
    short-changed.  And no one gets cut out.

[2]

Sometimes,
    however, loyalty and integrity get left behind.  Forgotten.  Ignored.  Payments
    are short.  Deliveries are light.  Brokers are cut out.  Retailers deal
    directly with wholesalers.

[3]

Disloyalty
    has its price.  And sometimes that price is very steep.  As here.  One death, a
    murder.  Three trials.  Two men convicted of first degree murder.  The third
    acquitted.

[4]

A
    jury convicted Fadi Saleh of first degree murder.   He says his conviction is
    flawed because the trial judge admitted some evidence that made his trial
    unfair, failed to instruct the jury correctly on two unrelated issues, and gave
    a wrong answer to a question asked by the jury during their deliberations.

[5]

These
    reasons explain why I would allow the appeal and order a new trial.

THE BACKGROUND FACTS

[6]

An
    overview of the evidence adduced at trial, along with a brief detour into some
    features of the procedure followed there, provides an adequate setting for a
    determination of the claims of error advanced here.

The Principals and their
    Relationship

[7]

Hussein
    El-Hajj Hassan (Hassan, or the deceased) was a drug dealer in the
    Ottawa-Gatineau Region.  Hassan got his drugs  cocaine - from Fadi Saleh (the
    appellant) who acted as a middleman or broker between Hassan and Rafei
    Ebrekdjian (Ebrekdjian) in Toronto.

[8]

Shant
    Esrabian (Esrabian) and Mark Yegin (Yegin) were friends of the appellant and
    the deceased.  Both were involved in the drug trade.  Yegin acted as an
    enforcer for the appellant.

[9]

Hassan
    did not deal directly with Ebrekdjian, rather provided the purchase price in
    cash to the appellant to be delivered to Ebrekdjian.  Routinely, the amounts
    received by Ebrekdjian were less than the agreed upon purchase price.

The Change in Suppliers

[10]

Sometime
    in 2004, Hassan decided to eliminate one link in his supply chain  the
    appellant.  Hassan began to deal directly with Ebrekdjian.  But Ebrekdjian told
    the appellant about the new arrangement.  The appellant was not pleased.
    Ebrekdjian had received significant sums of money from Hassan to fund further
    purchases.

[11]

On
    August 19, 2004 Ebrekdjian received a further $170,000 from Hassan.  But the
    funds were less than expected.  Ebrekdjian decided that he did not wish to do
    business with the Hassan any longer.  He advised the appellant of his decision and
    directed the appellant to return Hassans money to him.  The appellant arranged
    for his trusted associate, Axe Sleiman, to pick up the money from Ebrekdjian
    during the evening of August 19, 2004.

The Meeting with Sasquatch

[12]

Paul
    Porter was a friend of the appellant involved in the drug trade in Cornwall
    about an hour from the OttawaGatineau region.  Porter was a member of the
    Hells Angels.  His street name was Sasquatch.  Porter knew the appellant but
    had only seen Hassan a couple of times in the appellants company.

[13]

Mark
    Yegin told Hassan that a meeting had been set up with Sasquatch for the evening
    of August 20, 2004.  Those present would be discussing drug distribution in the
    Cornwall area. The meeting was the lure for Hassan. Porter gave evidence that
    no such meeting was ever arranged.

[14]

Yegin
    picked up Hassan in Esrabians Jeep and headed towards Cornwall.  The appellant
    and Esrabian followed in another vehicle.

[15]

According
    to Mark Yegin, the appellant gestured from the vehicle he was driving that
    Yegin and Hassan should follow them.  Both vehicles followed the same highway
    exit to an isolated, dead end area.  All four men got out.

[16]

Ebrekdjians
    cell phone records suggest that he was in Toronto at the relevant time,
    although later that evening his phone was in contact with Esrabians phone.

The Arrests

[17]

About
    ten months later, the appellant, Yegin, Esrabian, and Ebrekdjian were arrested
    on a charge of first degree murder.  A few days later, the charge against
    Ebrekdjian was withdrawn.

[18]

Immediately
    after their arrest, Esrabian and Yegin gave statements to the police.  They
    attempted to obtain a favourable disposition on their charges by providing
    information to investigators.  Both admitted that they were present when Hassan
    was killed but claimed that they were unaware that Hassan would be killed and were
    shocked when the appellant shot him.

[19]

Yegin
    told investigators that the appellant shot Hassan with two different guns.  One
    of the shots, he said, was to the deceaseds head.

The Recovery of the Deceaseds Body

[20]

After
    his post-arrest police interview, Mark Yegin led investigators to the place
    where the deceaseds body had been buried immediately after the shooting.

[21]

Hassan
    had suffered two close-range gunshot wounds: one to his upper right abdomen,
    and one to his upper left chest. Hassan did not suffer a gunshot wound to the
    head. The post-mortem examination also revealed several skull fractures caused
    by blunt force trauma.  The deceaseds right wrist and hand had been severed
    and were missing from the body.  The amputation likely occurred in the period
    immediately following the deceaseds death.

The Ballistics Evidence

[22]

Three
    cartridge casings recovered from the area where Hassan was buried had all been
    fired in the same gun.  A bullet fragment recovered from the body of the
    deceased could also have been fired from the same or a similar gun.  The
    firearm discharged was a .45 calibre handgun, an Eagle Gun Apache Mark II
    Carbine, a Taurus Millennium, or similar model. Nothing indicated that a 9 mm
    firearm had been used.

The Cell Phone Records

[23]

The
    evidence at trial included cell phone records and testimony about cell phone
    usage and location at different times during the evening of August 20, 2004.

[24]

The
    deceaseds cell phone records suggests that he was near Yegins apartment
    around 8 p.m. on August 20, 2004, part way between Yegins place and the
    location of his body at 8:13 p.m., and at the grave site by at least 8:48 p.m.
    The cell phone was on its way back to Ottawa at about 9 p.m. and was shut off
    at 9:13 p.m.

[25]

Esrabians
    cell phone records suggests that he was near the appellants home in Gatineau
    until about 7:23 p.m. and near the grave site between 7:58 p.m. and 9:06 p.m.
    The records are consistent with the phone being at a casino before returning to
    the appellants home by 9:43 p.m.

[26]

Yegins
    cell phone records suggests that he was near the appellants home around 6:13
    p.m., then returned to his home until at least 8 p.m.  No further calls took
    place until 9:08 p.m. when the phone was in the vicinity of the grave site.  By
    10:16 p.m., Yegins phone was in the vicinity of his home.

[27]

The
    appellants cell phone records indicate that from 11:17 a.m. on August 20, 2004
    until 3:30 a.m. the next day, all calls received were forwarded to voicemail.
    These records tend to support any of three inferences:

i.

the cell phone was turned off;

ii.

the battery in the cell phone was dead; or

iii.

the
    cell phone was outside the city limits of Ottawa where it did not work.

The Appellants Version

[28]

In
    a videotaped interview by investigators about six weeks prior to his arrest,
    the appellant told police that he couldnt remember precisely what he had done on
    August 20, 2004.  He believed that Esrabian was staying with him and that he,
    Esrabian and Yegin, went to the casino together.  He denied having been
    involved in any dispute with Hassan and told investigators that Yegin would not
    have taken Hassan to a meeting with Porter.  Among the group, only the
    appellant knew Porter.

The Procedural History

[29]

Despite
    the allegation of a joint venture, the appellant, Yegin, and Esrabian were
    charged separately and proceeded against individually.  Separate preliminary inquiries
    were held between June and November, 2006.

[30]

Esrabian
    was tried first.  He testified in his own defence.  Yegin did not testify at
    Esrabians trial.  Esrabian was convicted of first degree murder in June, 2008.

[31]

Yegin
    was tried next.  He did not give evidence in his own defence.  Esrabian
    testified at Yegins trial.    In November, 2008 a jury acquitted Yegin.

[32]

The
    appellant was the last to be tried.  He did not testify.  Crown counsel sought
    to introduce the preliminary inquiry testimony of both Yegin and Esrabian, when
    both refused to testify for the Crown at the Appellants trial, under s. 715(1)
    of the
Criminal Code
, R.S.C. 1985,
    c. C-46
.  The trial judge excluded Esrabians evidence but admitted
    the preliminary inquiry testimony of Yegin.  The jury found the appellant
    guilty of first degree murder.

THE GROUNDS OF APPEAL

[33]

The
    appellant challenges his conviction on four grounds.  I would paraphrase those
    grounds as errors:

i.

in admitting Yegins preliminary inquiry testimony as evidence at trial;

ii.

in failing to adequately caution the jury about the danger of acting on
    the evidence of Yegin;

iii.

in
    failing to relate the evidence adduced at trial to the controversial issues of
    the appellants presence at and participation in the unlawful killing of
    Hassan; and

iv.

in
    responding to a jury question about the need for presence when the killing
    occurred to establish the appellants liability.

Ground 1:   The Admissibility of the Preliminary Inquiry Testimony of
    Mark Yegin

[34]

Mark
    Yegin and Shant Esrabian testified as witnesses for the Crown at the
    appellants preliminary inquiry.  Both were subpoenaed to give evidence for the
    Crown at the appellants trial.  Both refused to testify.  The trial judge
    admitted Yegins preliminary inquiry testimony but excluded that of Esrabian on
    an application by the Crown under s. 715(1) of the
Criminal Code
. This
    ground of appeal emerges from that ruling.

[35]

Some
    further background is necessary to situate this claim of error in its
    appropriate context.

Mark Yegins Statements

[36]

Mark
    Yegin was the principal focus of the investigation that followed the
    disappearance of Hassan on August 20, 2004.  He spoke to the police several
    times in the months following Hassans disappearance.

[37]

On
    June 27, 2005 Mark Yegin, the appellant, Shant Esrabian and Rafei Ebrekdjian
    were arrested for the murder of the deceased.  Yegin agreed to provide a
    statement, testify for the Crown, and lead police to the location of Hassans
    body if he were released from custody and the charge against him withdrawn.
    Investigators accepted his offer provided he told them the truth.

[38]

In
    his first sworn statement, Yegin told investigators that he and Hassan left
    Hassans apartment in Esrabians Jeep en route to Cornwall on business.  The
    appellant and Esrabian followed in Yegins car.  Somewhere along the highway,
    the appellant pulled up beside them.  Yegin told Hassan that the appellant was
    also going to Cornwall.  The appellant pulled off the highway and Yegin
    followed him to a dead end.  The appellant approached the Jeep and told Hassan
    to get out of the vehicle.  Hassan followed the appellants instructions.  The
    men argued.  According to Yegin, the appellant shot Hassan twice, then a third
    time in the head.  The appellant used two guns.  Yegin and Esrabian were
    shocked.  On the appellants instructions, Yegin and Esrabian got shovels from
    Yegins car trunk, dug a hole, and buried the deceased.  All three men then
    left.

[39]

After
    completing the statement, Yegin led police through a wooded area to the place
    where Hassans body had been buried.  Yegin was released from custody, the
    charge against him withdrawn.

[40]

On
    June 30, 2005 investigators told Yegin that his story didnt fit with the
    physical findings; a single shootertwo gun killing was implausible.  Yegin
    revised his account.  Esrabian shot first.  The appellant then shot Hassan in
    the head with a different gun.  Blood spattered from the head wound.  Police
    re-arrested Yegin and charged him with first degree murder.

[41]

Mark
    Yegin testified on two separate days at the appellants preliminary inquiry
    during the following summer.

[42]

Yegin
    gave evidence that he had no idea that Hassan was going to be killed.  Yegin
    first saw the appellant on the highway.  When the appellant gestured towards
    him, Yegin followed.  Yegin was not sure whether anyone was with the appellant
    in his vehicle.  Yegin followed the appellant to a dead end.  There, the
    appellant and Hassan argued in Arabic.  Esrabian approached them and shot
    Hassan twice in the chest.  The appellant then shot Hassan in the head and
    directed Yegin and Esrabian to move Hassans body.

[43]

Yegin
    gave evidence that the appellant got a pick-axe and two shovels from Yegins
    Chevy Lumina.  Yegin could not continue digging the grave.  He left and
    disposed of Hassans cell phone on the way back to the appellants house where
    he rejoined the appellant and Esrabian.  The men changed their clothes,
    disposed of Hassans identification, and moved his vehicle to another location
    before heading to the casino to establish an alibi.

[44]

Yegin
    later testified at Esrabians preliminary inquiry.  He also provided a
    statement about the killing to the National Parole Board at his parole hearing
    after he was sentenced for contempt of court.

Shant Esrabians Statements

[45]

Shant
    Esrabian gave four statements to police, testified at his own bail hearing, and
    gave evidence at the appellants preliminary inquiry, at Yegins preliminary
    inquiry and trial, and at his own trial.  Like Yegin, he refused to testify at
    the appellants trial.

[46]

At
    first, Esrabian denied any involvement in the shooting of the deceased.
    Confronted by investigators with Yegins statement blaming the appellant for
    the shooting, Esrabian then recalled that the appellant had a gun.  He was
    uncertain whether Yegin also had a gun.  Esrabian wanted to see more of Yegins
    statement. He then denied shooting Hassan and claimed that the appellant had
    not done so either.

[47]

In
    sworn statements to investigators, Esrabian claimed that Yegin shot Hassan in
    the chest.  He fired a second shot, then a third.  All three dug the grave for
    Hassans body.  Esrabian said later that the appellant knew what was going to
    happen.

[48]

At
    the appellants preliminary inquiry, Esrabian gave evidence that Yegin shot
    Hassan twice in the chest, then hit him on the head.  Yegin used a .45 calibre
    gun.  The appellant, according to Esrabian, did not know what was going on.  A
    third shot was fired.  Esrabian assumed that the appellant fired the third shot
    using a 9 mm gun.

[49]

At
    his own trial, Esrabian maintained that Yegin shot Hassan and that the
    appellant knew nothing about what was to happen at the end of the road.

The Application at Trial

[50]

When
    both Yegin and Esrabian refused to testify as Crown witnesses at the
    appellants trial, Crown counsel sought to introduce the evidence each gave at
    the appellants preliminary inquiry as evidence at trial under s. 715 of the
Criminal
    Code
.

[51]

Trial
    counsel for the appellant conceded that the requirements of s. 715 had been
    met, but sought exclusion of the evidence on the ground that its admission would
    be unfair to the appellant.  As an alternative, counsel asked the trial judge
    to conduct the trial without a jury by overriding the refusal of Crown counsel at
    trial to consent to a judge-alone trial under s. 473(1) of the
Criminal
    Code
.

The Ruling of the Trial Judge

[52]

The
    trial judge dismissed the application to admit the preliminary inquiry evidence
    of Esrabian.  He reasoned that admitting this preliminary inquiry evidence
    would operate unfairly to the appellant.  Esrabian had testified in three
    further proceedings after he had given evidence at the appellants preliminary
    inquiry.  The appellant was not a party to any of those proceedings.  Some of
    Esrabians evidence was in French and had not been translated.  Esrabian had
    provided a new version of events that implicated the appellant.  The further
    evidence that could compromise the preliminary inquiry testimony could not be
    put before jury in any meaningful way.  Counsel for the appellant could not
    cross-examine Esrabian because he refused to testify.

[53]

The
    trial judge permitted Crown counsel to introduce the preliminary inquiry
    testimony of Yegin who had been fully cross-examined at the inquiry on all his
    [then] previous statements.  Yegin had only testified once since the
    appellants preliminary inquiry, at Esrabians preliminary inquiry.  Counsel
    could put any contradictory evidence that emerged there before the jury to
    challenge Yegins credibility and the reliability of his evidence.  Trial
    counsel for the Crown had suggested this procedure during argument.

[54]

The
    jury heard the audiotapes of the testimony Yegin gave at the appellants
    preliminary inquiry.  The tapes and transcripts of the evidence were filed as
    exhibits, along with the impeachment materials submitted by defence counsel.
    Each was the subject of final instructions.

The
    Arguments on Appeal

[55]

For
    the appellant, Ms. Henein advances several arguments in support of her
    principal submission that the trial judge was wrong in admitting Yegins
    evidence from the preliminary inquiry at the appellants trial.

[56]

Ms.
    Henein says that in determining the admissibility issue, the trial judge failed
    to take into account several critical factors.  Yegin was a crucial witness,
    the only person to put the appellant at the scene of the killing with a gun in
    his hand.  Admitting the evidence deprived the appellant of the opportunity to
    cross-examine Yegin on his later statements and the substance of the contrary
    version provided by Esrabian.  Further, the trial judge failed to consider the
    impact of admitting Yegins prior testimony but excluding that of Esrabian on
    the fairness of the appellants trial.

[57]

Ms.
    Henein contends that the manifest unreliability of Yegins evidence is a
    crucial factor in the trial fairness analysis because the principled approach
    to hearsay informs the interpretation of s. 715 and the exercise of the
    statutory discretion for which the section provides.  The record is barren of
    any independent confirmation of Yegins evidence.

[58]

The
    lack of opportunity to cross-examine Yegin on the basis of information provided
    after his testimony at the preliminary inquiry, a critical factor in the
    fairness analysis, was not considered by the trial judge.  The distinction that
    the trial judge drew in admitting Yegins evidence but excluding that of
    Esrabian - the degree of difficulty associated with the introduction of
    impeaching evidence - was not an appropriate consideration.  By admitting one
    without the other, the trial judge deprived the appellant of a fair trial by
    eliminating the inconsistencies between the two accounts and demonstrating the
    evolution of these versions as they related to each other.

[59]

Ms.
    Henein says that the trial judge erred as well in rejecting the appellants
    alternative argument that the trial continue without the jury.  This remedy,
    Ms. Henein contends, was available on the basis of ensuring trial fairness as
    well as under s. 24(1) of the
Canadian
Charter of Rights and Freedoms
.
    It could also have been granted under the discretion discussed in
R. v.
    Potvin
, [1989] 1 S.C.R. 525, a discretion that is not limited to the
    exclusion of evidence.

[60]

For
    the respondent, Ms. Bartlett-Hughes is contrary-minded.  Neither aspect of the
    trial judges ruling, she says, reflects error.

[61]

Ms.
    Bartlett-Hughes submits that the admission of Yegins preliminary inquiry
    evidence did not render the appellants trial unfair.  The trial judge had to
    balance fair treatment of the appellant with societys interest in the
    admission of probative evidence so that the trier of fact could get to the
    truth of the allegations.  He did so.  His decision reflected a consideration
    and appropriate weighing of the relevant factors.  His decision is entitled to
    deference on appellate review.

[62]

Ms.
    Bartlett-Hughes argues that the trial judge was not required to become enmeshed
    in a comprehensive assessment of Mark Yegins credibility.  Such an assessment
    blurs the distinction between threshold and ultimate reliability.  The issue is
    not the truth of the hearsay, but whether the jury has the tools with which to
    evaluate it in conjunction with the entirety of the evidence admitted at
    trial.  The jury had the necessary tools, including a recording of Yegins
    evidence.

[63]

Ms.
    Bartlett-Hughes contends that the availability of further information that
    emerged after Yegin gave evidence at the preliminary inquiry does not render
    the preliminary inquiry evidence inadmissible.  The after-acquired material
    does not negate the full opportunity for cross-examination defence counsel had
    at the preliminary inquiry, nor does it render the trial proceedings unfair.
    The subsequent statements retained the core elements of Yegins account, and
    the excerpts the trial judge permitted the appellants trial counsel to file
    equipped the jurors to determine Yegins credibility and the reliability of his
    evidence, despite Yegins absence from the trial.  The decision to exclude
    Esrabians preliminary inquiry evidence was a reasoned application of the cost-benefit
    analysis and does not reflect error.

[64]

Ms.
    Bartlett-Hughes rejects any suggestion of error in the trial judges decision
    not to override Crown counsels refusal to consent to continue the trial
    without a jury.  The remedy available under s. 715, she says, is evidentiary
    exclusion.  Nothing more.  The circumstances in which a trial judge can
    override the refusal of Crown counsel to consent to a judge-alone trial under
    s. 473(1) of the
Criminal Code
are rare, the standard for an accused
    to meet demanding.  Any scent of unfairness here should be, and was, eradicated
    by cautionary jury instructions.  Trial counsel did
not
contend that a
    fair trial required the juxtaposition of the preliminary inquiry evidence of
    Yegin and Esrabian.  That was a strategic tactical decision made by experienced
    trial counsel, a decision that should not be revisited here.

The Governing Principles

[65]

The
    basis on which the trial Crown sought to introduce the preliminary inquiry
    evidence of Yegin and Esrabian at the appellants trial, and the position taken
    by trial counsel for the appellant in response, require an examination of two
    sets of principles.  The first has to do with the circumstances in which
    preliminary inquiry evidence may be admitted or excluded under s. 715 of the
Criminal
    Code
. The second defines the scope of a trial judges authority to order
    that a first degree murder trial proceed without a jury despite the absence of
    the Attorney Generals consent under s. 473(1) of the
Criminal Code
.

The Admissibility of Prior Testimony

[66]

In
    some circumstances, evidence given in one proceeding may be admitted in
    another.  The authority that permits introduction of evidence taken elsewhere
    originates in two sources.  The first, statutory, is s. 715 of the
Criminal
    Code
.  The second, common law, is the principled exception to the hearsay
    rule:
R. v. Hawkins
, [1996] 3 S.C.R. 1043, at paras. 57 and 60.

[67]

In
    this case, trial counsel for the Crown advanced his case for admissibility
    under s. 715 of the
Criminal Code
.  It is to the requirements of that
    section and an exclusionary exception to it that I shall first turn.

The Statutory Authority

[68]

In
    one form or another, what is now s. 715 of the
Criminal Code
has been
    around for a long time.  For our purposes, the controlling provision is s.
    715(1).  Its material terms are these:

715(1) Where, at the trial of an accused, a person whose
    evidence was given at a previous trial on the same charge, or whose evidence
    was taken in the investigation of the charge against the accused or on the
    preliminary inquiry into the charge, refuses to be sworn or to give evidence,[]

and where it is proved that the evidence was taken in the
    presence of the accused, it may be admitted as evidence in the proceedings
    without further proof, unless the accused proves that the accused did not have
    full opportunity to cross-examine the witness.

[69]

A
    party who invokes s. 715(1) to introduce at trial evidence given by a witness
    at the preliminary inquiry into the charge must establish, on a balance of
    probabilities,

i.

that the witness gave evidence at the preliminary inquiry;

ii.

that the witness is unavailable to testify at trial for any reason
    described in the section; and

iii.

that
    the preliminary inquiry evidence was given in the presence of the accused.
[1]

Where these conditions have been satisfied, s. 715(1)
    directs that the preliminary inquiry evidence be admitted at trial, unless the
    accused proves that she or he did not have full opportunity to cross-examine
    the witness at the preliminary inquiry.

[70]

Most
    rules of admissibility, such as hearsay, opinion, similar acts, and extrinsic
    misconduct are exclusionary.  Each is subject to inclusionary exceptions.
    Section 715(1) is by nature inclusionary, but subject to an exclusionary
    exception where the accused has not had a full opportunity to cross-examine the
    witness whose evidence is tendered for admission.

The Exception:
    Full Opportunity to Cross-examine

[71]

To
    exclude evidence that would otherwise qualify for admission under s. 715(1), an
    accused must demonstrate that she or he did not have full opportunity to
    cross-examine the witness.  The operation of the exception is not determined
    by the use actually made of the opportunity to cross-examine but rather by the
    availability of a full opportunity to do so:
R. v. Ingraham
(1991),
    66 C.C.C. (3d) 27 (Ont. C.A.), at p. 43;
R. v. Davidson
(1988), 42 C.C.C.
    (3d) 289 (Ont. C.A.), at p. 298.  The opportunity to cross-examine is
    contemporaneous with the witness giving evidence at the preliminary inquiry.
    In a similar way, denials of full opportunity to cross-examine the witness must
    arise from events that take place at the preliminary inquiry where the witness
    gives the evidence.  Improper judicial interference, for example, may render
    the opportunity to cross-examine inadequate, thus depriving an accused of a
    full opportunity to cross-examine the witness.

[72]

After
    the witnesses have testified at the preliminary inquiry and the inquiry has
    concluded with a committal for trial, an accused may acquire additional
    information that is of impeachment value in association with a witness.  The
    after-the-fact acquisition of this information does not have the effect of
    converting what was at the time a full opportunity to cross-examine the
    witness into a basis on which to exclude the evidence under the exception to
    s. 715(1):
R. v. Michaud
(2000), 144 C.C.C. (3d) 62 (N.B.C.A.), at
    paras. 20-21; and
R. v. Lewis
, 2009 ONCA 874, 249 C.C.C. (3d) 265, at
    paras. 68-69.

The Discretion to Exclude

[73]

The
    language in s. 715(1) of the
Criminal Code
is discretionary:  evidence
    given at the preliminary inquiry that satisfies the requirements of the
    subsection may be admitted as evidence at trial.  The statutory language
    furnishes the trial judge with a discretion not to admit the previous testimony
    in circumstances where its admission would operate unfairly to the accused:
Potvin
,
    at pp. 547-548.  The discretion permits a trial judge to prevent any unfairness
    that could otherwise result from a purely mechanical application of the
    subsection:
Potvin
, at p. 550.  This discretion is more expansive
    than the traditional admissibility rule that excludes evidence the prejudicial
    effect of which exceeds it probative value:
Potvin
, at p. 552.

[74]

The
    exclusionary discretion in s. 715(1) is directed at two principal types of
    mischief:  unfairness in the manner in which the preliminary inquiry evidence
    was obtained, and unfairness in the trial itself caused by the admission of the
    preliminary inquiry evidence:
Potvin
, at pp. 551-552.  A trial judge
    should only exercise this discretion after weighing two competing and
    frequently conflicting concerns (
Potvin
, at pp. 552-553):

·

fair treatment of the accused; and

·

societys interest in the admission of probative evidence to get
    at the truth of the allegations in issue.

[75]

The
    focus of the trial judges concern must be on the protection of the accused
    from unfairness, rather than the admission of probative evidence without too
    much regard for the fairness of the adjudicative process:
Potvin
, at
    p. 553.

[76]

Section
    715(1) is a statutory exception to the hearsay rule.  It does not follow,
    however, that the principled approach to the hearsay rule has no place in the
    interpretation and application of the provision:
R. v. Li
, 2012 ONCA 291,
    110 O.R. (3d) 321, at para. 50.  That said, the principled approach may exert a
    greater influence on the issue of necessity than on that of reliability:
Li
,
    at paras. 56 and 60.

[77]

Among
    the relevant factors a trial judge might consider in deciding whether to
    exclude preliminary inquiry evidence that would otherwise qualify for admission
    under s. 715(1) is the crucial nature of the evidence itself:
Michaud
,
    at para. 26.  Equally relevant is the crucial nature of the credibility of the
    witness whose evidence is tendered for admission:
R. v. Tourangeau
(1994), 128 Sask. R. 101 (C.A.), at para. 18; and
R. v. Castanheira,
[1996] O.J. No. 3006 (C.A.), at para. 2.

[78]

The
    circumstances in which evidence previously given may be excluded in the
    exercise of discretion under s. 715(1) are comparatively rare.  The discretion to
    permit unfairness does not provide the trial judge with an open licence to
    undermine the object of s. 715(1) by excluding previous testimony as a matter
    of course:
Potvin
, at pp. 547-548.

[79]

Section
    715(1) is not an exhaustive code governing the admissibility of preliminary
    inquiry testimony at a subsequent trial:
Hawkins
, at para. 57.  For
    example, where preliminary inquiry testimony fails to satisfy the requirements
    for admissibility under s. 715(1), it remains open to the trial judge to
    consider whether the testimony may be admissible under common law principles,
    for example, under the principled exception to the hearsay rule.

[80]

Further,
    no principled reason would assign compliance with s. 715(1) a place of
    predominance over any other admissibility rule, as for example the discretion
    to exclude evidence the prejudicial effect of which exceeds its probative
    value, or evidence that involves an inordinate amount of time not commensurate with
    its value, or where the effect of the evidence on the trier of fact would be
    out of proportion to its reliability:
Hawkins
, at para. 85;
R. v.
    Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 3;
R. v. Mohan
,
    [1994] 2 S.C.R. 9, at p. 14.

[81]

When
    an accused seeks to exclude otherwise admissible evidence on the basis that its
    reception would render the trial unfair, it is critical to remember that a fair
    trial is a trial that appears fair, both from the perspective of the accused
    and from the perspective of the community.  A fair trial is not the most
    advantageous trial possible from the accuseds point of view:
R. v. Lyons
,
    [1987] 2 S.C.R. 309, at p. 362.  A fair trial is not a perfect trial.  A fair
    trial is a trial that satisfies the public interest in getting at the truth, while
    at the same time preserving procedural fairness to the accused:
R. v.
    Harrer
, [1995] 3 S.C.R. 562, at para. 45.

The Judge-Alone Trial Alternative

[82]

The
    presumptive mode of trial in cases of first degree murder is trial by jury:
Criminal
    Code
, s. 471.  Section 473(1) of the
Criminal Code
expressly
    permits an allegation of murder, an offence listed in s. 469(a)(vii) of the
Criminal
    Code
, to be tried without a jury, provided both the accused and the
    Attorney General consent to this alternative mode of trial.

[83]

The
    authorities recognize a closely circumscribed jurisdiction in a trial judge, on
    application by an accused, to direct that the trial of a case of murder be held
    before a judge sitting without a jury:
R. v. McGregor
(1999), 43 O.R.
    (3d) 455 (C.A.), at para. 4; see also,
R. v. E.(L.)
(1994), 94 C.C.C.
    (3d) 228 (Ont. C.A.), at pp. 241, 243.  A judge should only override the
    refusal of the Crown to consent to a judge-alone trial under s. 473(1) in the
    clearest of cases;
R. v. Kahn
, 2007 ONCA 779, 230 O.A.C. 179, at para.
    16.

[84]

The
    prevailing authorities do not articulate a precise standard to be applied on an
    application to override the refusal of prosecutorial consent under s. 473(1).
    What does emerge, however, is that the standard is a demanding one, at a
    minimum the standard required to obtain a change of venue under s. 599(1)(a) of
    the
Criminal Code
:
Khan
, at para. 14.  In essence, it falls
    to the accused to demonstrate, on a balance of probabilities, that the
    time-honoured statutory and common law procedures designed to preserve and
    protect the right of every accused to a fair trial by an impartial tribunal are
    insufficient in the circumstances of the case to ensure a fair trial:
Kahn
,
    at para. 15.

[85]

The
    industry of counsel did not unearth any authority that permits a trial judge to
    direct a judge-alone trial to remedy any potential unfairness caused by the
    introduction of preliminary inquiry evidence.

The Principles Applied

[86]

For
    reasons that I will develop, I would give effect to this ground of appeal.  In
    my view, the trial judge did not instruct himself properly with respect to the
    nature and scope of his discretion to exclude the preliminary inquiry evidence
    tendered under s. 715(1) of the
Criminal Code
.

[87]

At
    the outset, I acknowledge, as did counsel at trial, that the preliminary
    inquiry evidence of Yegin and Esrabian met the requirements of s. 715(1) of the
Criminal Code
.  Their evidence was
prima facie
admissible at
    the appellants trial.  Further, I also acknowledge that the issue for the
    trial judge to determine involves the exercise of judicial discretion, a
    decision that traditionally, and rightly, attracts substantial deference on
    review in this court.

[88]

Under
    s. 715(1) of the
Criminal Code,
the trial judge was required to decide
    what the effect of the admission of the evidence would be on the fairness of
    the appellants trial:
Potvin
, at p. 552.  To decide this issue, the
    trial judge had to balance fair treatment of the appellant, on the one hand,
    with societys interest in the admission of probative evidence in order to get
    at the truth of the allegations contained in the indictment, on the other hand:
Potvin
, at pp. 552-553.  The focus of the trial judges concern was
    the protection of the accused from unfairness, not the admission of probative
    evidence without too much regard for the fairness of the adjudicative process:
Potvin
, at p. 553.

[89]

The
    evidence at issue here is the only first-hand account about what happened at
    the killing place.  The arrangements.  The journey.  The confrontation.  The
    shooting.  The burial.  The flight.  The disposal of the indicia of crime.

[90]

The
    decision on this issue, as the trial judge clearly appreciated, was not an easy
    one.  His assignment did not involve the solution of a mathematical equation.
    Different trial judges will accord different values to competing factors and
    reach different final conclusions.  In the absence of errors in principle, or
    misapprehensions of the evidence, deference is their rightful due.
    Regrettably, I have concluded that this experienced trial judges analysis is
    cumbered by several errors that require a new trial.

[91]

First,
    the trial judge failed to consider the manifest unreliability of Yegin in
    assessing whether the admission of his evidence would operate unfairly to the
    appellant.  Under
Potvin
, the focus of the trial judges concern was
    to be the protection of the appellant from unfairness.  The evidence at issue
    came from a witness who was present at the shooting.  He was charged with the
    same murder as the appellant.  He had a substantial motive to assign blame to
    others; in particular, to the appellant.  His account of events evolved over
    time, changing when he was confronted with physical findings that belied his
    version of the events.  Yet the jury never saw this witness (as a result of his
    own conduct), or viewed his cross-examination.

[92]

Second,
    the trial judge failed to consider the impact on the fairness of the trial of the
    appellants inability to confront Yegin, in the presence of the jury, with
    information obtained after Yegin had testified at the preliminary inquiry.  The
    trial judge appears to have acknowledged the relevance of at least some of this
    material when he permitted defence counsel to file a printed record of it.  The
    inability of counsel to cross-examine Yegin on this material had a significant
    impact on trial fairness.

[93]

Third,
    the trial judge erred in failing to consider the effect of excluding Esrabians
    evidence on the fairness of the appellants trial that left the jury with only
    Yegins account of the crucial events.  In the end, the appellant was denied
    the benefit of a second version of the crucial events to juxtapose with that of
    Yegin in an attempt at least to whittle down his level of participation in the
    killing of Hassan.

[94]

Fourth,
    the trial judge appears to have confined his exercise of an exclusionary
    discretion to that for which s. 715(1) provides under
Potvin
.  To be
    fair, the discretion under s. 715(1) was the principal focus of the submissions
    of counsel at trial.  That said, the discretion to exclude evidence tendered
    under s. 715(1) of the
Criminal Code
is not limited to the fairness
    considerations of
Potvin
.  The trial judge has a gatekeeper function
    to ensure that only relevant, material, and admissible evidence gets before the
    jury.  The appellant was entitled to a cost-benefit analysis of Yegins
    evidence to determine whether its value to the correct disposal of the
    allegations contained in the indictment exceeded its cost to the litigation
    process. No such analysis was done.

[95]

I
    would not interfere with the trial judges decision not to order that the trial
    proceed without a jury despite the absence of the Attorney Generals consent
    under s. 473(1) of the
Criminal Code
.  Even assuming such an order
    were available based upon trial fairness considerations when s. 715(1) is invoked,
    no principled reason would support a less rigorous standard than that
    applicable when the issue arises otherwise.  And on this record, in my
    respectful view, the appellant has not met that standard.

Ground 2:  The
Vetrovec
Instruction

[96]

The
    appellant contends that the trial judge made two errors in his
Vetrovec
instructions about the preliminary inquiry evidence of Mark Yegin.  The first
    relates to the trial judges explanation of the reasons underlying the need for
    caution in relying on Yegins evidence.  The second has to do with the items of
    evidence the trial judge mentioned as potentially confirmatory of Yegins
    testimony.

The Jury Instruction

[97]

The
    trial judge reviewed drafts of his final instructions with counsel.  His charge
    included instructions about the evidentiary value of prior inconsistent
    statements of non-accused witnesses.  He then explained to the jury that he had
    a special instruction about several witnesses including Yegin and Ebrekdjian.
    In connection with Yegin, the trial judge noted that Yegin:

i.

was an enforcer of drug and other debts owed to drug dealers including
    the appellant; and

ii.

had a serious criminal record including a conviction in the United
    States.

[98]

The
    trial judge cautioned the jury about relying on the evidence of this group of
    witnesses:

Common sense tells you that in light of these circumstances,
    there is good reason to look at the evidence of these witnesses with the
    greatest care and caution.  You are entitled to rely on their evidence even if
    it is not confirmed by another witness or other evidence, but it is dangerous
    for you to do so.  To the extent that the evidence of Mark Yegin and Rafei
    Ebrekdjian might confirm the evidence of one another you should be mindful of
    the fact that they were in a joint enterprise involving drug dealing.
    Accordingly, you should look for some confirmation of their evidence form
    somebody or something other than each of them before you rely upon their
    evidence in deciding whether Crown counsel has proven the case against Fadi
    Saleh beyond a reasonable doubt.

[99]

The
    trial judge explained the meaning of confirmatory evidence in two passages in
    his charge:

To be confirmatory the testimony of another witness or
    witnesses or other evidence should help restore your faith in relevant parts of
    the evidence of these witnesses.  Youre entitled to rely on their evidence
    even if it is not confirmed by another witness or by other evidence, but I
    repeat:  it would be dangerous for you to do so.

To be confirmatory evidence need not implicate Mr. Saleh.  To
    be confirmatory the independent evidence must confirm relevant portions of the
    testimony of a witness so that your faith in the witnesss evidence can be
    reinforced.  The evidence to which I am about to refer illustrates the kind of
    evidence that you may find confirms or supports their testimony.  It may help
    you.  It may not.  It is for you to say.

[100]

The trial judge
    gave specific illustrations of evidence that was potentially confirmatory of
    Mark Yegins testimony.  He told the jury:

Dealing with Mr. Yegin.  The fact that Mr. Yegin led the police
    to Mr. Hassans grave could be regarded as compelling confirmatory evidence of
    Mr. Yegins presence at the scene when Mr. Hassan was murdered.  You will
    recall that Mark Yegin testified that when Mr. Hassans body was placed in the
    grave his head was covered with a shirt.  Doctor Brian Johnston testified that
    he observed a woven material on the victims face which he described as a
    very thin mesh-type network of impressions.  Mr. Yegins cell phone activity
    on the night of August 20
th
would also tend to confirm his presence
    at the scene.  The finding of Mr. El-Hajj Hassans vehicle on Waverly Street a
    few days after August 20 could also be regarded as confirmatory of Mark Yegins
    evidence.

[101]

Trial counsel
    for the appellant did not object to these instructions before or after their
    delivery.

The Arguments on Appeal

[102]

For the
    appellant, Ms. Henein contends that among the essential components of a proper
Vetrovec
instruction is an enumeration or description of the reasons why the evidence of
    the witness requires special scrutiny.  As far as Mark Yegin was concerned, the
    instruction, she says, failed to indicate the principal reasons for enhanced
    scrutiny:

i.

Yegins motive to lie;

ii.

Yegin was charged with the offence, thus had the information necessary
    to provide an account that blamed others for committing the offence and
    absolved himself; and

iii.

Yegin
    sought and obtained a withdrawal of the charge against him by cooperating with
    the police and leading them to the body.

[103]

Ms. Henein
    advances a similar argument in connection with the caution for Ebrekdjian.  The
    instructions, she contends, failed to point out that Ebrekdjian:

i.

had a close connection to all the parties;

ii.

had himself been charged with the murder of the deceased;

iii.

had
    a financial motive to kill Hassan(to keep the money Hassan fronted for drug
    purchases that Ebrekdjian had not delivered); and

iv.

admitted
    a motive of self-protection.

[104]

Ms. Henein says
    that the trial judge also erred in the items he listed as potential
    confirmatory evidence in connection with the testimony of Mark Yegin.  The live
    issues in the case were the presence of the appellant at the scene of the
    killing and the nature of his participation, if any, in the killing.  There was
    no dispute that Yegin drove Hassan there, remained, and participated in the
    killing.  To be confirmatory of Yegins testimony, the evidence had to show
    that Yegin was telling the truth about the appellants participation.  But the
    list of evidence the judge provided did no more than confirm Yegins presence
    at the scene about which there was no dispute.  Trial counsel for the appellant
    objected to the trial judges illustrations of confirmatory evidence, but the
    trial judge refused to correct it.

[105]

Ms.
    Bartlett-Hughes for the respondent acknowledges that a trial judge is required
    to explain to the jury the reasons underlying a
Vetrovec
caution.
    But, she submits, the explanation need not be exhaustive or appear in its
    entirety in a single passage or paragraph in the charge.  In the context of the
    case as a whole, where a significant portion of the addresses of counsel were
    devoted to the weaknesses in Yegins evidence, and the factors omitted were
    obvious, the jury would have well understood why they should be extremely
    careful about acting on Yegins account of events.  Ms. Bartlett-Hughes notes
    that the motive to lie advanced on appeal was not part of the defence position
    at trial.

[106]

Ms.
    Bartlett-Hughes accepts that, to be confirmatory of a
Vetrovec
witness,
    evidence must be independent of that witness and relate to a material issue in
    his or her evidence.  The evidence need not implicate an accused, however.
    Evidence that confirmed Yegins presence at the scene can be confirmatory.  No
    minimum threshold is imposed for how much of a
Vetrovec
witnesss
    evidence requires confirmation.

The Governing Principles

[107]

Among the
    elements that should guide trial judges in composing
Vetrovec
instructions about potentially unsavoury witnesses is an explanation of why the
    witnesss evidence is subject to special scrutiny:
R. v. Khela
, 2009
    SCC 4, [2009] 1 S.C.R. 104, at para. 37;
R. v. Hurley
, 2010 SCC 18,
    [2010] 1 S.C.R. 637, at para. 12.  An exhaustive explanation of how a
    particular characteristic might enable a witness to upset the fact-finding
    process is not required:
R. v. Smith
, 2009 SCC 5, [2009] 1 S.C.R.
    146, at para. 14.  Sometimes, when a witness is an accomplice, it may be useful
    for a trial judge to explain why such a witness would be able to concoct a
    particularly compelling story that implicates an accused:
Smith
, at
    para. 15.

[108]

Vetrovec
eschewed formulaic instructions in favour of a judicial discretion to compose a
    wording responsive to the needs and circumstances of the case:
Khela
,
    at para. 38;
Smith
, at para. 16.  A failure to include a specific
    component in a
Vetrovec
instruction may not prove fatal where the
    charge, read as a whole, otherwise serves the purposes of a
Vetrovec
warning:
Khela
, at para. 44.  Sometimes, as well, the reasons underlying the
    need for caution are self-evident and an elaborate explanation of them is
    unnecessary:
R. v. Linklater
, 2009 ONCA 172, 246 O.A.C. 303, at para.
    10.

[109]

A
Vetrovec
instruction
    should also make clear to the jury the type of evidence capable of offering
    support to the impugned witness.  A trial judge is expected to provide
    illustrations of potentially confirmatory evidence, not simply to turn the jury
    loose to rummage about for whatever it considers confirmatory of the witnesss
    evidence:
Khela
, at para. 46.

[110]

The principal
    characteristics of confirmatory evidence are independence and materiality.  The
    evidence must be independent of the
Vetrovec
witness, that is to say,
    not tainted by connection to that witness:
Khela
, at para. 39.  To be
    material, confirmatory evidence need not implicate the accused in the
    commission of the offence:
Khela
, at paras. 40-41. To be material,
    what the confirmatory evidence must do in the context of the case as a whole is
    to give comfort to the jury that the witness can be trusted in his or her
    assertion that the accused committed the offence:
Khela
, at para. 42;
R. v. Kehler
, 2004 SCC 11, [2004] 1 S.C.R. 328, at para. 15.  Where
    the only issue in dispute is whether the accused committed the offence, the
    trier of fact must be comforted that the
Vetrovec
witness is telling
    the truth
in that regard
before convicting on the strength of the
Vetrovec
witnesss evidence.

The Principles Applied

[111]

Despite some
    deficiencies in the
Vetrovec
instructions, I would not accede to this
    ground of appeal.

[112]

I take first the
    complaint that the trial judge erred in failing to apprise the jury of all the
    reasons to approach the preliminary inquiry evidence of Yegin and the testimony
    of Ebrekdjian with caution.  I would reject this claim of error for three
    reasons.

[113]

First, it is
    debatable whether the authorities go so far as to say that failure to point out
    every reason why jurors should approach a witnesss evidence with great care
    and caution amounts to legal error.  To some at least, such a requirement would
    be inconsistent with the degree of discretion assigned to a trial judge in the
    composition of a
Vetrovec
caution, a substitution of form for
    substance.  It can almost always be argued the trial judge could have said more
    on a subject than what she or he did say.  But that is beside the point.  The
    issue is really whether what the trial judge said was sufficient, in the
    context of the charge as a whole, to equip the jurors to understand the reasons
    why they should be very cautious about grounding a conviction on this
    evidence.  And in this case, the instructions fulfilled their purpose.

[114]

Second, the
    omissions were matters that were at once self-evident, and treated in depth in the
    closing addresses on both sides and the trial judges repetition of the
    position of the defence in his jury instructions.

[115]

Third, trial
    counsel for the appellant did not object to the charge on this ground despite
    ample opportunity to do so both before and after the charge was given.

[116]

In connection
    with the submission that the illustrations of potentially confirmatory evidence
    were wrong because they lacked the essential quality of materiality, I would
    reject this assertion of error.

[117]

To be
    confirmatory of the testimony of a
Vetrovec
witness, evidence need not
    implicate the accused in the commission of the offence charged:
Khela
,
    at para. 42;
Smith
, at para. 12.  Yegins evidence was that he was
    present and witnessed the killing of Hassan.  Evidence that confirmed his
    attendance there contemporaneous with the killing, his ability to locate the
    burial site, unhesitatingly and at night, and the finding of the deceaseds car
    as he described was some evidence that could give comfort to the jury that his
    assertion that the appellant was the killer could be trusted.  Nothing more was
    required of the evidence.

Ground 3:  Failure to Relate the
    Evidence to the Issues

[118]

The third ground
    of appeal also relates to an alleged deficiency in the charge to the jury.  The
    complaint is familiar: an assertion that the charge was not compliant with the
    rule of venerable lineage that, except in cases in which it would be needless
    to do so, a trial judge is bound to review for the jury the substantial parts
    of the evidence and to relate that evidence to the issues that require decision
    so that the jury appreciates the value and effect of that evidence.

[119]

Context is important
    here and requires some further background.

The Pre-Charge Conference

[120]

The trial judge
    provided counsel with a draft of the charge he proposed to deliver and invited
    their submissions.  He tried very hard to develop a final product that was at
    once legally correct and reflected the positions of both parties.  The
    pre-charge conference was completed before counsel addressed the jury.

[121]

At the
    pre-charge conference or shortly thereafter, counsel provided the trial judge
    with a statement of their positions.  Included in these statements, which the
    trial judge incorporated verbatim into his charge, were some references to the
    evidence upon which counsel relied in support of their positions.

The Positions of the Parties at Trial

[122]

The Crown
    contended that the appellant was guilty of first degree murder.

[123]

The position of
    the Crown was that Hassan became disenchanted with the appellant as his drug
    supplier because he thought the appellant was skimming money from the amounts
    he was to provide to Ebrekdjian for drugs.  Hassan decided to cut the appellant
    out of the supply chain, a manoeuvre that would save Hassan money but cause the
    appellant a significant financial loss.  The appellant found out about the
    plan, was angered by it, and took steps to plot the murder of the deceased.

[124]

The plan that
    the appellant and others developed was to lure Hassan to a remote location on
    the pretense that they were going to a meeting with Sasquatch (Paul Porter) to
    discuss something about the drug business in Cornwall.  Yegin, either a willing
    and knowledgeable participant or an unwilling dupe, was dispatched to carry out
    the plan.  On August 19, 2004 Hassan had paid $170,000 up front to Ebrekdjian
    for drugs.  Axe Sleiman was sent to recover the money for the appellant.

[125]

During the
    afternoon of August 20, 2004, the appellant and Esrabian pre-dug a grave in the
    area to which Hassan was to be lured later that day.  Yegin delivered Hassan to
    the remote location where Esrabian and the appellant waited.  They were armed
    and had tools with which they could hit Hassan and bury his body.  Hassan was
    shot twice, beaten, and buried in a shallow grave.

[126]

The position of
    the appellant at trial was that he was not part of any plan to kill Hassan and
    was not present when Hassan was shot, beaten, and killed.  The case for the
    Crown depended on the appellants presence at the scene of the killing.  The
    only evidence that put him there was the preliminary inquiry evidence of a
    thoroughly disreputable and unreliable witness:  Yegin, a person who sought to
    purchase immunity for himself by falsely accusing others.

[127]

The appellant
    did not have any motive to kill the deceased.  Their dispute had been settled.
    The appellant was to receive his commission as the intermediary between Hassan and
    Ebrekdjian.  The Crown had failed to prove his participation in a plan to kill Hassan,
    and further had failed to prove his presence at the scene and participation in
    the killing.  The appellant, who did not testify or call evidence, was entitled
    to a finding of not guilty.

The Charge to the Jury

[128]

The trial judge
    provided jurors with a written copy of his charge.  After explaining the
    governing legal principles, both those of general application to all criminal
    trials and those of specific application to the appellants case because of the
    evidence adduced at trial, the trial judge turned to the essential elements the
    Crown was required to prove to establish the appellants guilt.  The charge
    proceeded along familiar lines with the essential elements converted to
    questions and accompanied by relevant legal instructions.

[129]

The trial judge
    instructed the jury on two modes of participation, both of which required the
    appellants physical presence at the place and time of killing:

·

principal

·

aider or abettor

In his discussion of the various essential elements and
    what was required to prove them, the trial judge did not review the evidence
    adduced at trial that was relevant for the jury to consider in deciding each
    issue, apart from a brief reference in connection with whether the murder was
    planned and deliberate.

[130]

Neither counsel
    objected to the charge to the jury on the ground that the trial judge had
    failed to review the substantial features of the evidence and to relate them to
    the issues that the jury was to decide.

The Evidence Notes

[131]

The addresses of
    counsel finished on a Friday afternoon.  After a brief late afternoon recess,
    the trial judge provided the jurors with their homework for the weekend:  87
    typewritten pages of the trial judges notes of the evidence of some of the
    witnesses who had testified at trial.  The notes did not include any summary of
    Mark Yegins evidence from the preliminary inquiry, the testimony of the lead
    investigator, or the opinion evidence given by any expert who testified at
    trial.

[132]

The trial judge
    explained to the jury that the notes were his notes of the evidence, intended
    to assist their recollection of the evidence, but subject to their memory of
    it.  The notes, he cautioned the jury, were strictly personal and
    confidential and not to be dispersed, copied, shared, or discussed with anyone
    else.  The judge told the jury to bring the evidence notes with them when they
    returned to listen to the charge to the jury the following Monday.

The Arguments on Appeal

[133]

For the
    appellant, Ms. Henein advances two related complaints about the adequacy of the
    trial judges charge.

[134]

First of all,
    Ms. Henein says that the trial judge failed to review the substantial parts of
    the evidence adduced at trial and failed to relate that evidence to the issues
    that the jury was required to decide, thus leaving the jury without an adequate
    appreciation of the value and effect of that evidence.

[135]

Second, and more
    specifically, Ms. Henein contends that the trial judge failed to review and
    relate the substantial parts of the evidence to the appellants liability for
    murder.

[136]

Ms. Henein
    acknowledges that the trial judge was under no obligation to exhaustively
    review all the evidence admitted at trial in his final instructions.  That
    said, she submits, the trial judge was required but failed to review the
    substantial parts of the evidence and to relate it to the position of the
    defence so that the jury would appreciate its value and effect.  There was no
    review of the evidence or relation of it to the critical issues of the appellants
    presence at the time and place of the killing and his state of mind, in
    particular, his knowledge and foresight, a critical component of his potential
    criminal liability.  The effect of the charge was to direct the jury that his
    presence constituted proof of his liability for second degree murder.

[137]

For the
    respondent, Ms. Bartlett-Hughes reminds us that the assessment of the adequacy
    of the charge to the jury requires a consideration of the context in which the
    final instructions were given.  Here, she says, the trial judge provided
    counsel with a copy of his proposed final instructions.  Counsel on both sides
    reviewed the proposed instructions at length during the pre-charge conference.
    Each was aware that the instructions contained no review of the evidence
    adduced at trial and no relation of that evidence to the issues the jury was
    required to decide.  Trial counsel for the appellant did not object to the
    substance of the instructions and raised no concern about the judicial notes
    being provided to the jurors.  The appellant cannot now advance a claim of
    prejudicial error having failed to record any objection at trial.

[138]

Ms.
    Bartlett-Hughes submits that the trial judges failure to include in his
    evidence notes or otherwise to review the evidence of the pathologist who
    performed the post-mortem examination on Hassan and the lead police investigator
    caused the appellant no prejudice.  The jury had a copy of the post-mortem
    report containing the relevant findings and the lead investigators evidence
    was largely investigative background and provided context for the various
    photographic exhibits.

[139]

Ms.
    Bartlett-Hughes contends that the instructions that linked presence to a
    finding that the appellant committed murder do not reflect misdirection in the
    circumstances of this case.  The evidence about the appellants presence was
    reviewed in the recharge and, for all practical purposes, the appellants
    presence at the secluded spot when and where the killing occurred was
    incompatible with innocence.

The Governing Principles

[140]

It is beyond
    controversy that among the obligations imposed upon a trial judge in instructing
    a jury in a criminal case, except in cases where it would be needless to do so,
    is the duty to review the substantial parts of the evidence and to give the
    jury the position of the defence, so that the jury may appreciate the value and
    effect of the evidence, and how the law is to be applied to the facts as the
    jury finds them to be:
Azoulay v. The Queen
, [1952] 2 S.C.R. 495, at
    pp. 497-498.

[141]

Frequently, a
    judge satisfies this obligation to review substantial parts of the evidence and
    to relate that evidence to the issues the jury must decide by reviewing the
    evidence contemporaneously with legal instructions about what the Crown must
    prove to establish each essential element of the offence and any defence,
    justification, or excuse that may be applicable to that element:
R. v.
    MacKinnon
(1999), 132 C.C.C. (3d) 545 (Ont. C.A.), at para. 29;
R. v.
    Cudjoe
, 2009 ONCA 543, 68 C.R. (6th) 86, at paras. 172-173.  When this
    approach is followed, the jury understands, to put it in the vernacular, what
    goes with what.  In other words, the instructions couple what must be proven
    (an essential element of an offence) with what is relevant to prove (or raise a
    reasonable doubt about) it (the evidence):
Cudjoe
, at para. 175.

[142]

The obligation
    to review the substantial parts of the evidence and relate it to the issues
    that ripen for decision by the jury imposes no duty upon the trial judge to
    review
all
the evidence:
Azoulay
, at p. 498;
R. v. Daley
,
    2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 55-56. The role of the trial judge
    is to decant and simplify, not to regurgitate and complicate:
R. v.
    Jacquard
, [1997] 1 S.C.R. 314, at para. 13;
Daley
, at para. 56.  A
    trial judge is vested with a considerable discretion in determining the extent
    to which the evidence adduced at trial is reviewed for the jury in final
    instructions:
R. v. Royz
, 2009 SCC 13, [2009] 1 S.C.R. 423, at para.
    3.  In the end, the test is one of fairness.  Provided the critical features of
    the evidence are put to the jury in a way that will permit the jury to truly
    appreciate the issues and the defence presented, a trial judge will have met
    the standard required:
Daley
, at para. 57.

[143]

A charge to the
    jury in a criminal case does not take place in isolation.  It occurs in the
    context of the trial as a whole.  Appellate review of a trial judges charge
    encompasses the addresses of counsel, as the addresses may fill some gaps in
    the charge:
Daley
, at para. 58;
Royz
, at para. 3.  That
    said, the addresses of counsel are not and cannot be a proxy for the trial
    judges obligations under
Azoulay
and its progeny.

[144]

Jury
    instructions are tested against their ability to fulfill the purposes for which
    they are given, not by reference to whether any particular approach or formula
    has been used.  Provided the jury is left with a sufficient understanding of
    the evidence as it relates to the relevant issues and the positions of the
    parties on those issues, the charge passes muster:
Jacquard
, at para.
    14.

[145]

Serial reviews
    of the evidence adduced at trial are not likely to be of assistance to jurors:
R. v. MacKay
, 2005 SCC 75, [2005] 3 S.C.R. 607, at para. 2;
R. v.
    Charles
, 2011 ONCA 228, 270 C.C.C. (3d) 308, at para. 19.

The Principles Applied

[146]

I would give
    effect to this ground of appeal.  In my respectful view, the trial judges
    references to the evidence were not sufficient to the context of the case and
    the entirety of the charge to alert the jury to the specific parts of the
    evidence that were significant to the issues the jury had to decide and to the
    positions counsel advanced on those issues.

[147]

Reduced to its
    simplest terms, this case required the jury to decide two issues.  Was the
    appellant present at the time and place where Hassan was killed?  If the
    appellant were present at the material time, to what extent was the appellant
    liable for the unlawful killing of the deceased?

[148]

In his final
    instructions, the trial judge posed four questions for the jury to consider:

i.

Did Fadi Saleh cause Hussein El-Hajj Hassans death?

ii.

Did Fadi Saleh cause Hussein El-Hajj Hassans death unlawfully?

iii.

Did
    Fadi Saleh have the state of mind required for murder?

iv.

Was
    the murder of Hussein El-Hajj Hassan both planned and deliberate?

[149]

To answer each
    question, which reflected an essential element of the offence charged, the jury
    required instructions about the legal principles that governed their decision.
    They received those instructions.  But the trial judge had a further obligation
    to the jury in connection with each question.  And that was to review the
    evidence relevant to the issue framed by the question and to relate that
    evidence to the issue and the positions taken by the parties on the question
    and issue.  The trial judge did not provide these instructions.  In failing to
    do so, he fell into error.

[150]

The audiotapes
    of Yegins evidence at the preliminary inquiry were filed as exhibits, thus
    available for listening in the jury room during deliberations.  The transcripts
    of Yegins evidence at the preliminary inquiry were also filed, thus available
    for reading in the jury room.  Likewise, the trial judges notes.  But the jury
    was entitled to more.  It could not simply handed the evidence in bulk and left
    to decide, untutored, which parts of it were relevant to the various questions
    posed for their response.  Recall the direction in
Jacquard
:  the
    judges role is to decant and to simplify.

[151]

Something should
    be said about the procedure followed here of providing the jury with a written
    copy of the trial judges evidence notes on the testimony of some, but not all,
    of the witnesses.

[152]

A trial judges
    obligation is to review the substantial parts of the evidence and relate it to
    the issues and the positions of the parties on those issues, so that the jury
    appreciates the value and effect of the evidence is an essential component in a
    jury charge.  Like other essential components, it may be accomplished in
    various ways.  Most trial judges satisfy this requirement by reviewing the
    evidence in the context of the various issues, and by indicating which parts of
    the evidence may support the positions advanced by each party on the issue.  But
    that is not to say that other methods may not be suitable in other cases.  In
    the end, what is done must leave the jury with an adequate understanding of the
    issues in play, the legal principles governing the offences charged, the basis
    of liability advanced and the evidence adduced in proof, and the salient
    features of the evidence the jury should consider in resolving those issues:
R.
    v. Cooper
, [1993] 1 S.C.R. 146, at p. 163.

[153]

It has become
    common practice in this province for trial judges to provide jurors with
    written versions of final instructions delivered orally.  Sometimes, but not
    always, the written versions supplied to jurors include the judges evidentiary
    references intended to comply with the instructions of
Azoulay
.  There
    is nothing wrong and arguably much right about providing the entire charge as
    given orally, including evidentiary references, in the written version of the
    charge supplied to the jury.

[154]

The error in
    this case is not simply one of form, but rather one of substance.  In much the
    same way as an oral regurgitation of the evidence adduced at trial in bulk
    fails to meet the requirement of
Azoulay
, much less adhere to the
    decant and simplify mandate of
Jacquard
, it is no less so when the
    manner of delivery is in writing.  An undifferentiated written summary, coupled
    with transcripts of evidence given elsewhere, devoid of any attempt to separate
    the wheat from the chaff and to relate the essential features of the evidence
    to the issues on which they bear, falls short of what is required.

Ground 4:  The Jurys Question

[155]

On the second
    full day of their deliberations, the jury asked a question.  It was the only
    question they asked prior to delivering their verdict.

[156]

The trial
    judges response to the jurys question is the final ground of appeal.

The Question

[157]

The question
    asked by the jury was this:

A question that we have on a point of law is whether an
    individual has to be present in order to be found guilty of first or
    second-degree murder.  Your notes indicate that an individual would be found
    guilty if the four conditions of first-degree murder are met, pages 43-44.

Each of these conditions are expanded on in subsequent text
    using if he was present.  The conditions are not expanded further in the
    event that he was not present, for example, first paragraph, page 50; second
    paragraph, page 53.

[158]

The trial judge
    heard the submissions of counsel about the answer he should provide to the
    jurys question.  He recalled the jury in the late afternoon, told them that
    they were not to deliberate further that day, and advised them that he would
    answer their question the following morning.  The jury retired for the evening.

The Answer

[159]

The following
    morning, without re-reading the jurys question, the trial judge told the jury
    that he had prepared an addendum to his charge.  He read the addendum and
    provided a written copy of it for the jury.  The trial judge began his response
    to the jury in this way:

Members of the Jury, an individual could be found guilty of
    murder and not be present at the scene of the murder.  For example, an
    individual may order that a murder be committed and that others carry out the
    crime.  In such a case, the person who gives the order is a party to the murder
    and would be as guilty as those who actually committed it.

In this case however, both the Prosecution and the Defence have
    proceeded on the basis that Mr. Saleh was present at the scene of the murder.
    According to the Prosecution Mr. Saleh was present at the scene either as a
    shooter or one of the shooters, or as an aider or abettor of the shooter or
    shooters.  In essence, the Crown asserts that Mr. Saleh was an active
    participant in the murder of Mr. Hassan at the very spot where he was murdered.

[160]

For the first
    time, the trial judge reviewed some of the evidence, including the preliminary
    inquiry testimony of Mark Yegin and evidence of the appellants alleged motive,
    that tended to show that the appellant was present when and where Hassan was
    killed.

[161]

The trial judge
    concluded his response to the jury question with these instructions:

If you are not satisfied beyond a reasonable doubt that Mr.
    Fadi Saleh was present at the scene of the crime as a principal offender or as
    an aider or abettor to the murder of Mr. Hassan, you must find him not guilty.
    If you are satisfied beyond a reasonable doubt Fadi Saleh was present at the
    scene of the crime as a principal offender or as an aider or abettor to the
    murder of Mr. Hassan, you must find Mr. Saleh guilty of second-degree murder.
    You would then go on to consider whether the murder was both planned and
    deliberate in accordance with my written instructions provided to you.

[162]

Trial counsel
    for the appellant objected to the judges response.  He submitted that the
    answer failed to advise the jury that the defence position was that the
    appellant was not present when Hassan was killed.  The defence did not proceed
    on the basis that the appellant was present as the trial judge had erroneously
    told the jury.  Defence counsel also took issue with the trial judges review
    of evidence that tended to show the appellants presence at the time and place
    of the killing.  Counsel submitted that the review was incomplete and failed to
    point out the important evidence of the pathologist that contradicted Yegins
    claim that Hassan had been shot in the head.

[163]

The trial judge
    did not recall the jury for further instructions.

The Arguments on Appeal

[164]

For the
    appellant, Ms. Henein accepts that the trial judge correctly instructed the
    jury that, as a matter of law, a person may be convicted of murder without
    being present at the time and place Hassan was killed.  Further, Ms. Henein
    concedes, the trial judge properly pointed out that the entire trial had been
    conducted on the basis that the appellants liability depended on proof that he
    was present at the time and place of the killing.

[165]

Ms. Henein
    submits, however, that the trial judges answer was fatally flawed for several
    reasons.

[166]

First, Ms.
    Henein says, the trial judge erred in telling the jury that the defence
    proceeded on the basis that the appellant
was
present.  The defence
    position was that the appellant was not present, or at least not proven beyond
    a reasonable doubt to have been present because of the significant frailties in
    Yegins evidence.

[167]

Second, Ms.
    Henein continues, the trial judge was wrong in failing to instruct the jury, in
    express terms, that they could not find the appellant guilty of any offence
    unless they were first satisfied beyond a reasonable doubt that he was present
    at the time and place Hassan was killed.  The jury was never instructed that
    they could not find the appellant guilty of any offence if they found or had a
    reasonable doubt that he was not present when and where Hassan was killed.

[168]

Third, Ms.
    Henein says, the evidentiary review included in the trial judges answer was
    unfair and unbalanced.  The items of evidence selected omitted any reference to
    any evidence that tended to negate the testimony that pointed to the
    appellants presence.  If the trial judge decided that an evidentiary review
    was appropriate, even though the jury question did not require it, the review
    had to be, but unfortunately was not, balanced.

[169]

For the
    respondent, Ms. Bartlett-Hughes submits that nothing the trial judge said or
    failed to say in his response to the jury question left or could have left the
    impression that the appellant could be convicted of any offence even if the
    jury were not satisfied beyond a reasonable doubt that he was present when and
    where Hassan was killed.

[170]

Ms.
    Bartlett-Hughes says that the trial judge expressly instructed the jury that if
    they were not satisfied beyond a reasonable doubt that the appellant was
    present when and where Hassan was killed, he was to be found not guilty.
    Admittedly, at an early point in his answer, the trial judge misspoke when he
    said that the defence had proceeded on the basis that the appellant was
    present.  But, Ms. Bartlett-Hughes continues, the balance of the instruction,
    thus the instruction as a whole, made it clear that the appellants presence
    was an issue for the jury to decide.

[171]

Ms.
    Bartlett-Hughes disagrees with the characterization of the evidentiary review
    as unbalanced or unfair.  The review was a fair reflection of the evidence on
    the issue.  After all, the only evidence on the issue was adduced by the
    Crown.  The appellant did not testify nor call any witnesses to say that he was
    not where the Crowns proof put him when and where Hassan was killed.

The Governing Principles

[172]

The principles
    that govern the manner in which trial judges are to respond to jury questions
    are well-established and not in need of tedious repetition.  Three brief points
    are worthy of reminder.

[173]

First, jury
    questions require a clear, correct, and comprehensive response in a timely
    way:
R. v. S.(W.D.)
, [1994] 3 S.C.R. 521, at para.
13;
R. v. Desveaux
(1986), 26 C.C.C. (3d) 88 (Ont. C.A.), at p. 93.
This
    is particularly important when there has been a lengthy delay between the
    completion of the charge and the response to the question:
S.(W.D.)
,
    at paras. 31 and 34;
R. v. W.(D.)
, [1991] 1 S.C.R. 742, at pp.
    759-760.

[174]

Second, counsel
    must be afforded an opportunity to make submissions about the nature and
    content of the response:
S.(W.D.)
, at para. 34.

[175]

Third, if an
    error is made in a response to a jury question, then at least as a general
    rule, the correctness of the original charge cannot be summoned to excuse the
    later error on the precise issue on which the jury has sought clarification:
S.(W.D.)
,
    at para. 19;
W.(D.)
, at para. 36.

The Principles Applied

[176]

I would give
    effect to this ground of appeal.  As I will explain, the response provided was
    infected by both procedural and substantive error.

[177]

When advised of
    the jurys question, the trial judge reconvened court in the absence of the
    jury.  He invited submissions from counsel about an appropriate response to the
    question.  He then advised the jury that he was suspending their deliberations
    until the following morning when he would answer their question.  Before
    dismissing the jury, the trial judge had not settled on his response to the
    question or advised counsel about what he proposed to say.

[178]

When court
    resumed the following morning, the trial judge had in hand his response to the
    jurys question.  He made it clear to counsel that he would not receive any
    further submissions about his response.  The judge recalled the jury, read aloud
    his response without first repeating the question, provided a written version
    of his answer to the jury, and directed them to retire to continue their
    deliberations.

[179]

In my view, the
    trial judge should have distributed the proposed response to counsel and
    received their submissions on its adequacy.  The jury had already been kept
    waiting for a response as a result of the trial judges decision to delay his
    response until the following morning.  The question could easily have been
    answered after the dinner recess the previous evening with the benefit of
    further submissions by counsel.  It was pointless to rush the response having
    already delayed it until the following morning.

[180]

Of greater
    significance, however, are the substantive flaws in the response.  The judge
    misstated the defence position, although he later made it clear that whether
    the appellant was present was an issue the jury had to decide.  That said, the
    response treated presence as proof of murder as a matter of law.  By this
    instruction, he converted an issue of fact that was to be resolved by the jury
    into a legal instruction, thus rendering essential findings of fact on that
    issue unnecessary.

[181]

The trial
    judges response to the jury question was also over-inclusive.  What the jury
    sought was an answer to a legal question that could be paraphrased as:

Does a person have to be present to be guilty of first or second
    degree murder?

[182]

The short answer
    to that question was:

As a matter of law, in some circumstances, none of which are
    present here, a person may be convicted of first or second degree murder even
    though she or he is not present when and where the killing occurred.  In this
    case, however, you must be satisfied beyond a reasonable doubt that Fadi Saleh
    was present at the time and place the deceased was killed in order to find him
    guilty of either first or second degree murder as a principal or as an aider or
    abettor in accordance with the instructions I have given to you.

[183]

The jury
    question did not expressly or by necessary implication invite a review of the
    evidence that was relevant to the issue of the appellants presence.  Once the
    trial judge decided to engage in such a review, however, the references had to
    be fair and balanced in light of the controversy on the issue.  They were not,
    and thus reflect error.

CONCLUSION

[184]

In combination,
    the errors I have identified and discussed render the jurys verdict
    unsustainable.  I would allow the appeal, set aside the conviction, and order a
    new trial on the indictment for first degree murder.

Released: December 10, 2013 (DW)

David Watt J.A.

I agree. M. Tulloch J.A.

I agree. P. Lauwers J.A.

[1]
Sections 715(2.1) and (3) also permit evidence to be admitted where the accused
    has been permitted to be absent by order of the presiding judge or has
    absconded.