COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Quansah, 2015 ONCA 237

DATE: 20150410

DOCKET: C47082

Watt, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Quansah

Appellant

Brian Snell and Gabriel Gross-Stein, for the appellant

David Finley, for the respondent

Heard: August 27, 2014

On appeal from the conviction entered by Justice Alfred
    J. Stong of the Superior Court of Justice, on August 8, 2006, sitting with a
    jury.

Watt J.A.:

[1]

Minh Tu challenged Richard Quansah to a fight. At first, Quansah
    demurred. The next morning, Quansah answered the challenge. He killed Tu.

[2]

Quansah said he stabbed Tu in self-defence. The jury at Quansahs trial
    decided otherwise and found him guilty of first degree murder.

[3]

Quansah appeals. He argues that the trial judge misapprehended the rule
    in
Browne v. Dunn
(1893), 6 R. 87 (H.L. (Eng.)) and, as a result,
    included in his charge an instruction that was not warranted and fatally compromised
    the fairness of his trial.

[4]

I would not give effect to these claims and would dismiss the appeal.

THE BACKGROUND FACTS

[5]

To appreciate the arguments advanced, some background about the
    circumstances in which Tu died is necessary before the focus is shifted to the
    cross-examination of various witnesses at trial and the evidence given by
    Quansah.

A.

The Central North Correctional Centre

The Floor Plan

[6]

Central North Correctional Centre (CNCC) is a prison that houses inmates
    awaiting trial, as well as those serving sentences of up to two years less one
    day. The prison consists of six living units. Each unit houses six trapezoidal
    ranges. The ranges are arranged in a circular fashion, like pieces of a pie,
    around a central rotunda.

[7]

A common area or day room, which contains tables and stools fixed to
    the floor, occupies the central part of each range.

[8]

Two levels of cells are located along the outside walls of each range.
    Food is passed through two feeding hatches in the wall separating the range
    from the rotunda.

[9]

From a control module in the centre of the rotunda, guards have a clear
    line of sight into the range, but not into the interior of the cells or the
    shower area.

The Cell Doors

[10]

The
    cell doors are unlocked or cracked at 9:00 a.m. and remain unlocked for one
    hour. The doors can be opened by cell occupants during this time but relock if
    they are pushed closed. To enter or exit a cell, without being locked in or
    out, the door must be left to rest gingerly on its pins or an object inserted
    in the space between the door and the door frame.

The Range

[11]

In
    early May 2004, Tu and Quansah were both inmates in Unit 1-A. Tu had been there
    about three weeks, Quansah for about half that time. Tu was skilled in martial
    arts and, according to some inmates, the toughest guy on the range.

[12]

Tu
    was a late sleeper. He often remained asleep in his cell after the doors had
    been cracked at 9:00 a.m.

The Social
    Circles

[13]

Allegiances
    in Unit 1-A divided along racial lines. Tu was aligned with white and Asian
    inmates, including the Crown witnesses Dean Ireland, Edward Clare and Michael Ayres.
    Quansah was associated with a group of black and Arab prisoners including David
    Clarke, Nana Prempeh and Jawad Mir, none of whom testified at trial.

The Inmate Code

[14]

An
    informal inmate code regulates life among the prisoners. The code requires
    any inmate challenged to a fight by another inmate to fight. An inmate who
    fails to respond to the challenge may be beaten, stabbed or kicked off the
    range, as determined by senior inmates. An inmate who at first fails to respond
    to a challenge to fight may restore his reputation by showing up subsequently
    through arrangements made with senior inmates.

[15]

The
    areas best suited for fights between inmates are those not visible to the
    guards from the control module: the shower area and inside individual cells.
    The best time for cell fights is in the morning after the cell doors have been
    cracked.

B.

Events Leading Up to the Stabbing

The Game of
    Risk

[16]

Inmates
    at CNCC played the board game, Risk, at tables in the day room.

[17]

On
    May 4, 2004 inmate Lavallee, Tu and some other inmates were about to begin a
    game of Risk. Quansah was in the shower. Lavallee yelled at Quansah to hurry
    up. Quansah responded angrily. Quansah left the shower area, walked over to the
    table where the Risk game was underway and assaulted Lavallee, although Lavallee
    claimed Quansah did not hit him.

The Challenge

[18]

Tu
    stood up by the table. He challenged Quansah to a fight. Tu stripped down to
    his shorts and walked over to the shower area where he practiced a few kicks.
    He called out to Quansah again. Quansah said he was scared or scared to fight
    Tu. Another inmate yelled six up indicating that guards were watching.

[19]

No
    fight occurred.

The Aftermath

[20]

Accounts
    differ about what happened between Tu and Quansah after Tu challenged Quansah
    to a fight.

[21]

According
    to Quansah, Tu emerged from the shower with three other inmates, including
    Quansahs cellmate, Ayres. They blocked Quansahs view of the television. Tu
    accused Quansah of causing trouble on the range. A guard came to the window and
    Tu retreated. Soon after, another guard took Quansah to the rotunda and asked
    if there was a problem. When Quansah returned, Tu accused Quansah of ratting him
    out and then walked away.

[22]

Other
    inmates talked to Tu later and testified that Tu considered the altercation
    over and was prepared to let things die down.

[23]

Quansah
    was concerned about the consequences of having backed down when Tu called him
    out to fight. He would be labelled a punk and his position with other inmates
    would be compromised. Other inmates noticed that Quansah was
    uncharacteristically quiet and stared at Tu. There was some evidence that
    Quansah wrote out a kite  a written message to inmates on another range  and
    passed it through the door to the adjacent range.

The Evening Meeting

[24]

That
    same evening some senior inmates on the range met with Quansah in the common
    area. They told Quansah he had to fight with Tu or he would be kicked off the
    range. Quansah was concerned he would be rushed by Tus friends but was
    assured by one of the inmates that he would be backed.

[25]

Quansah
    agreed to fight Tu one-on-one.

After Lock-up

[26]

When
    the cells were locked for the evening, the guards conducted a search for
    weapons. Quansah was strip searched. No weapons were found.

[27]

Ayres
    was Quansahs cellmate. According to Ayres, Quansah remained angry about the
    argument with Tu. Quansah said that guy doesnt know me. Im not a punk. This
    isnt over. Quansah testified that Ayres, a friend of Tu, threatened him.
    Quansah was afraid that Ayres might harm him during the night. Quansah did not
    fall asleep until Ayres left the cell early in the morning to go to court.

C.

The Stabbing

[28]

It
    was uncontested at trial that Quansah stabbed Tu to death in Tus cell after
    the doors were cracked at 9:00 a.m. on May 5, 2004. Quansah and Tu were the
    only persons in the cell at the time of the stabbing. Nobody saw Quansah with a
    knife when he entered Tus cell that morning.

[29]

The
    accounts varied about what happened shortly before Quansah entered and after he
    left Tus cell.

The Account of Edward Clare

[30]

Clare
    was an ally of Tu. After the cell doors had been cracked, he saw Clarke (who
    did not testify), a member of Quansahs group, open and shut the door to Billy
    Trans cell, locking Tran inside. Locked in the cell, Tran, a friend of Tu,
    could not help in any altercation with Quansah.

[31]

Quansah
    walked by another inmate, Brooks, and said it better be one-on-one. Quansah
    walked into cell number nine, Tus cell, as Clarke opened the cell door and
    held it open. Clare heard some noise from the cell. The cell door opened.
    Clarke almost fell down. The door partially closed and then opened again. Clare
    could see blood. Clarke put a bottle in the door to prevent it from closing all
    the way. Somebody yelled from inside the cell: you thought you had me last
    night.

[32]

According
    to Clare, when Quansah left the cell, his shirt was pulled down at the front.
    Quansah said holy fuck as he left Tus cell.

The Account of Dean Ireland

[33]

Ireland,
    another member of Tus group, saw Quansah and Clarke walk up the stairs to the
    upper level of cells after the doors were cracked at 9:00 a.m. on May 5.
    Quansah gave Mir, an ally, a Muslim hug, then entered Tus cell and closed
    the door so that it would not lock behind him.

[34]

Ireland
    heard a loud banging from inside the cell. He saw Quansahs arm come out of the
    door and then quickly disappear from view. He did not see a knife. Clarke inserted
    a shampoo bottle between the door and the doorframe to prevent the door from
    locking. Seconds later, Quansah walked out of the cell, his t-shirt stretched
    at the shoulder. Quansah held a bloody knife in his right hand.

The Robert
    Fallis Version

[35]

Fallis
    saw Quansah walk up the stairs to the second level of cells, hug Mir and then
    walk down the corridor with Clarke and Prempeh towards Tus cell. Quansah
    walked into the cell. Mir looked over the railing towards the rotunda area. Prempeh
    looked in the window of Tus cell. Clarke held the door against his foot to
    prevent it from opening or closing.

[36]

About
    30 seconds later, Fallis heard a noise from inside Tus cell. The cell door
    opened. Quansahs leg came out the door and then returned inside the cell. The
    door partially closed. Soon afterwards, Quansah walked out of the cell. He
    stared straight ahead. His left hand was cupped, his shirt ripped on the left
    side.

Richard Quansahs Account

[37]

Quansah
    gave evidence at trial. He testified that when the cell doors were cracked on
    May 5 he walked from his cell to Tus cell, intending to have a consensual
    fight with Tu without weapons. En route, he learned from Clarke that something
    had been done to ensure that Tus ally, Tran, would not get involved. When he
    arrived at the second level of the range, Quansah met Mir. They hugged in the
    Muslim style. Together with Clarke, Quansah walked towards Tus cell. The door
    to the cell rested on its latch. A shoe kept the door open.

[38]

Through
    the window in the cell door, Quansah saw Tu seated, facing the bed. Quansah
    entered. Tu jumped up. The fight began. Tu tried to knee and kick Quansah in
    the crotch. They exchanged punches. Tu doubled over from a punch and then rammed
    Quansah backwards into the door. Tu broke free, turned and grabbed something
    from the desk. He made a throwing motion. Quansah heard a clatter and then
    saw a knife on the ground.

[39]

The
    men exchanged looks. Both lunged for the knife. Tu bent over to grab the knife.
    Quansah pushed Tu back and then grabbed the knife with his right hand. Tu tried
    to pry the knife out of Quansahs hand. Quansah told Tu to stop. Quansah began
    to panic. He pushed Tu away. Tu jumped back. Quansah stabbed Tu as Tu continued
    to advance towards him. Tu draped himself over Quansah. Quansah then stabbed Tu
    in the back. Tu moaned. Quansah ran out of the cell.

D.

After the Stabbing

The Denouement

[40]

After
    leaving Tus cell, Quansah walked to the cell occupied by Mir and Ireland.
    There, he washed and disposed of the knife and changed his shirt. The knife was
    never recovered. Some strips of cloth were found in the plumbing in the cell
    occupied by Mir and Ireland.

[41]

When
    a lock-down was announced, Quansah returned to his cell. There he was strip
    searched. He had a cut on one of his hands, but very little blood on his
    clothing and no blood on his shoes.

The Knife

[42]

Ireland
    claimed that he had seen a knife in Quansahs right hand when Quansah left Tus
    cell. Ireland described it as a pocket knife with a three inch blade and a
    string attached to it. Irelands sketch of the knife was filed as an exhibit at
    trial. No one else gave evidence about seeing a knife in Quansahs hand before
    he entered or after he left Tus cell.

[43]

About
    three or four days before the argument over the board game, Ireland said he had
    seen Tu with a knife. When Ireland asked Tu about the knife, Tu said: youll
    never know when you need it.

The Cause of Death

[44]

When
    paramedics arrived, Tu was conscious. He would not say what had happened, but
    did tell the first responders that he had returned to his cell after breakfast.
    Tu suffered six stab wounds, divided equally between his chest and his back, as
    well as a defensive wound to his left hand.

[45]

Tu
    died from stab wounds to his chest.

THE POSITIONS OF THE PARTIES AT
    TRIAL

[46]

It
    was the position of the trial Crown (not Mr. Finley) that Quansah, humiliated
    by Tu during the argument about the game of Risk, got together with Clarke, Prempeh
    and Mir after the incident and plotted Tus murder. The murder was to take
    place the next morning in Tus cell. To ensure that Tu was alone, Clarke
    confined Tus ally, Tran, to his cell. Quansah entered Tus cell as he slept and
    stabbed Tu to death with a knife he had taken there for that very purpose.

[47]

At
    trial, counsel for Quansah (not Mr. Snell, who is counsel on appeal) contended
    that Quansah had been humiliated by Tu in their altercation over the game of
    Risk. To restore his reputation sullied by his failure to fight Tu when
    challenged, and to ensure his continued safety in the institution, Quansah went
    to Tus cell early the next morning. Quansahs purpose was to engage in a
    consensual one-on-one fight. The fight began as a fist fight. As the fight
    progressed, Tu produced a knife. The men struggled over the knife. Quansah
    gained control of the knife and stabbed Tu in self-defence.

THE GROUNDS OF APPEAL

[48]

The
    appellant advances two related grounds of appeal.

[49]

First,
    the appellant says the trial judge erred in holding that trial counsel had
    breached the rule in
Browne v. Dunn
, by failing:

i.

to cross-examine Clare, Fallis and Ireland about a shoe propping open
    the door to Tus cell before the appellant arrived on the morning of the
    stabbing;

ii.

to cross-examine Fallis on Quansahs alleged remark, your friend needs
    help, as Quansah left Tus cell after the stabbing; and

iii.

to cross-examine Ayres on whether he threatened Quansah in their cell
    the night before the stabbing.

[50]

Second,
    the appellant contends that the trial judge erred in instructing the jury.
[1]
The appellant alleges the trial judge erred in telling the jury they could
    consider, as a factor in assessing the weight to be assigned to Quansahs
    evidence, the failure to cross-examine these witnesses and thus afford them an
    opportunity to respond to the contradictory version offered by the appellant.
    Quansahs version was the sole support for self-defence. The appellant also
    alleges the trial judge should have reminded the jury that counsels failure to
    cross-examine could have been inadvertent.

Ground #1: Breach of the Rule in
Browne v. Dunn

A.

Three Specific Incidents

[51]

The
    first ground of appeal alleges that the trial judge erred in finding that trial
    counsel for the appellant breached the rule in
Browne v. Dunn
by failing
    to put, in cross-examination of four inmate witnesses, three specific incidents
    about which the appellant testified in advancing self-defence.

[52]

One
    incident involved a threat allegedly made by the appellants cellmate, Ayres,
    several hours before Tu was killed. The second related to the state of Tus
    cell door when the appellant entered shortly after 9:00 a.m. on May 5. The
    third had to do with a remark the appellant allegedly made to Fallis in the
    presence of two other inmates as he left Tus cell and proceeded to Mirs cell
    to dispose of the knife and some clothing.

[53]

A
    brief reference to the evidence of the appellant and the inmate witnesses about
    each incident provides a basis upon which to assess the validity of this claim.

The Ayres Threat

[54]

The
    appellant testified that he and his cellmate, Ayres, did not get along. The
    appellant wanted Ayres moved out of their cell. Ayres was a friend of Tu and
    had threatened the appellant after the incident with the game of Risk. The
    appellant was concerned that Ayres might jump him. After lock down, Ayres
    talked about the incident and said that bad things were going to happen. The
    appellant said he slept little that night in fear that Ayres would attack him.

[55]

Ayres
    gave evidence that, in their discussion about the incident with the board game,
    the appellant, in describing himself, told Ayres that he was not a punk. It
    seemed the appellant did not consider the incident with Tu to be over.

[56]

Trial
    counsel for the appellant never suggested to Ayres in cross-examination that he
    had threatened the appellant that bad things would happen to him or said
    anything which might lead the appellant to believe that anything of that nature
    would occur.

The Shoe in the Door

[57]

The
    appellant testified that when he arrived at the door to Tus cell shortly after
    9:00 a.m. on May 5 he noticed a shoe already in place to prevent the door from
    locking. Clarke was with the appellant to ensure the fight was one-on-one. The
    appellant saw Tu, sitting down in his cell, apparently collecting his thoughts.
    Clarke remained outside the cell when the appellant entered and began his fight
    with Tu.

[58]

Clare
    saw Clarke open the door to Tus cell. The appellant entered. Clarke held the
    door to prevent it from closing. The door opened twice during the altercation
    inside. Each time the door opened, Clarke pushed it back. Clarke also put a
    bottle on the floor to prevent the door from locking.

[59]

Clare
    was not cross-examined about the door to Tus cell. Nor was he asked about
    Clarkes activities there. No suggestion was put to Clare that a shoe was
    already in the doorway when Clarke and the appellant approached Tus cell.
    Clare confirmed that Tu was usually a late sleeper. Clare had no idea what Tu
    was doing in his cell as the appellant and Clarke approached or what happened
    inside the cell after the appellant entered.

[60]

Fallis
    saw Clarke open the door for the appellant and hold it open using his hand and
    foot after the appellant entered Tus cell.

[61]

Fallis
    was not cross-examined about the condition of the door to Tus cell when the
    appellant and Clarke approached. Counsel did not put any suggestion to Fallis
    that the door was held open by a shoe. Fallis was not cross-examined about what
    Clarke did at the door after the appellant had entered.

[62]

Ireland,
    a very reluctant and uncooperative witness for the Crown, gave evidence that
    the appellant entered Tus cell and rested the door so that it would not lock.
    Later, Clarke put a shampoo bottle on the floor to prevent the door from locking.

[63]

In
    cross-examination, Ireland confirmed that Clarke held or wedged something in
    Tus cell door to ensure that it did not lock. It was never suggested to
    Ireland that the cell door was held open by a shoe already in place when the
    appellant and Clarke arrived.

[64]

Clarke
    did not testify.

The
    Post-offence Remark

[65]

In
    his testimony, the appellant said that, as he left Tus cell after the stabbing
    and went to Mirs cell, he passed inmates Brooks and Fallis. He said to Fallis:
    your friend needs some help.

[66]

Fallis
    gave no evidence about any remark made by the appellant after he left Tus
    cell. It was not suggested to Fallis in cross-examination that the appellant
    had made such a remark as he headed toward Mirs cell.

B.

The Positions of the Parties

[67]

Mr.
    Snell, counsel on appeal, says trial counsel did not violate the rule in
Browne
    v. Dunn
in connection with any of the issues found by the trial judge.

[68]

So
    far as the alleged threat by Ayres is concerned, Mr. Snell contends that the
    rule in
Browne v. Dunn
was neither engaged nor violated. The appellant
    took no issue with Ayress claim that the appellant did not sleep the night
    before he killed Tu. The appellant offered a contrary explanation to the
    inference of planning that emerged from Ayress evidence  fear of reprisal due
    to Ayress threats. In the overall context of the case, the point was of no
    great significance. Failure to cross-examine on it did not offend the rule in
Browne
    v. Dunn
and worked no great mischief.

[69]

In
    connection with the failure to cross-examine Fallis, Ireland and Clare about
    the shoe in the doorway to Tus cell when the appellant and Clarke arrived, Mr.
    Snell says this evidence held no impeachment value and thus did not engage the
    rule in
Browne v. Dunn
. The important point was the consensual nature
    of the fight, not what held Tus door open permitting the appellant to enter.
    Ireland and Fallis confirmed the consensual nature of the fight and nothing the
    appellant said later contradicted this core feature of their testimony. Clare
    was, and demonstrated himself to be, a highly suspect witness prone to
    exaggeration and unworthy of belief. Trial counsel was under no obligation to
    slog through every detail of the appellants version to forestall a possible
Browne
    v. Dunn
objection.

[70]

Nor
    was the rule in
Browne v. Dunn
offended by the failure to
    cross-examine Fallis on the your friend needs some help comment as the
    appellant walked away from Tus cell after the stabbing. Fallis gave no
    evidence in-chief about whether the appellant said, or did not say, anything to
    him at that time. It follows that the appellants evidence claiming he made
    such a comment did not, indeed could not, impeach Fallis on his account of what
    the appellant said after the killing. Further, this evidence was insignificant
    in the context of the case as a whole.

[71]

For
    the respondent, Mr. Finley contends that each admitted failure of
    cross-examination implicated and offended the rule in
Browne v. Dunn
.

[72]

The
    failure to cross-examine Ayres about the threats he made the previous evening
    offended the rule in
Browne v. Dunn
though not to the same extent as
    the other breaches. Ayress evidence in-chief, buttressed to some extent by
    other evidence, supported the Crowns position that the appellant was angry and
    ruminating over his impending attack on Tu. This supported the Crowns claim
    that Tus murder was planned and deliberate. The appellants claim that Ayres
    threatened him undermined Ayress account and weakened the force of the
    evidence about the appellants state of mind shortly before the killing. This
    was important and should have been put to Ayres in cross-examination.

[73]

Mr.
    Finley says the failure of the appellants trial counsel to cross-examine
    Clare, Ireland and Fallis about the shoe in the doorway to Tus cell was a
    serious breach of the rule. None of Fallis, Ireland or Clare said they saw
    anything in Tus doorway holding the door ajar as Clarke and the appellant
    approached. Nothing was placed in the doorway or held the door open until
after
the appellant had entered. On the basis of this evidence, the jury could have
    concluded there was no dispute that Tus door was open but unlocked before the
    appellants arrival. A shoe in the door further suggested the Crowns witnesses
    were unreliable. In addition, the shoe in the door suggested Tu was up, not
    sleeping in as he usually did, and was waiting for the appellant. The inmate
    witnesses should have been confronted with this version of events.

[74]

Mr.
    Finley also characterizes the failure to cross-examine Fallis on the your
    friend needs some help remark as a serious breach of the rule. From Falliss
    evidence-in-chief, the jury could reasonably conclude the appellant had said
    nothing, one way or the other, as he passed by Fallis en route from Tus cell
    to Mirs cell, with a knife in his hand. The appellants remark tended to show
    a state of mind inconsistent with a planned and deliberate murder and
    consistent with a consensual fight gone wrong. The remark could also be
    summoned to neutralize some post-offence conduct such as disposing of the knife
    and damaged clothing.

C.

The Governing Principles

[75]

In
Browne v. Dunn
, Lord Herschell, L.C., explained that if a party
    intended to impeach a witness called by an opposite party, the party who seeks
    to impeach must give the witness an opportunity, while the witness is in the
    witness box, to provide any explanation the witness may have for the
    contradictory evidence:
Browne v. Dunn
, pp. 70-71;
R. v. Henderson
(1999), 134 C.C.C. (3d) 131 (Ont. C.A.), at p. 141; and
R. v. McNeill
(2000), 144 C.C.C. (3d) 551 (Ont. C.A.), at para. 44.

[76]

The
    rule in
Browne v. Dunn
, as it has come to be known, reflects a
    confrontation principle in the context of cross-examination of a witness for a
    party opposed in interest on disputed factual issues. In some jurisdictions,
    for example in Australia, practitioners describe it as a puttage rule because
    it requires a cross-examiner to put to the opposing witness in
    cross-examination the substance of contradictory evidence to be adduced through
    the cross-examiners own witness or witnesses.

[77]

The
    rule is rooted in the following considerations of fairness:

i.

Fairness to the witness whose credibility is attacked:

The witness is alerted that the
    cross-examiner intends to impeach his or her evidence and given a chance to
    explain why the contradictory evidence, or any inferences to be drawn from it,
    should not be accepted:
R. v. Dexter
, 2013 ONCA 744, 313 O.A.C. 226,
    at para. 17;
Browne v. Dunn
, at pp. 70-71.

ii.

Fairness to the party whose witness is impeached:

The party calling the witness has
    notice of the precise aspects of that witnesss testimony that are being
    contested so that the party can decide whether or what confirmatory evidence to
    call; and

iii.

Fairness to the trier of fact:

Without the rule, the trier of fact
    would be deprived of information that might show the credibility impeachment to
    be unfounded and thus compromise the accuracy of the verdict.

[78]

In
    addition to considerations of fairness, to afford the witness the opportunity
    to respond during cross-examination ensures the orderly presentation of
    evidence, avoids scheduling problems associated with re-attendance and lessens
    the risk that the trier of fact, especially a jury, may assign greater emphasis
    to evidence adduced later in trial proceedings than is or may be warranted.

[79]

Failure
    to cross-examine a witness at all or on a specific issue tends to support an
    inference that the opposing party accepts the witnesss evidence in its
    entirety or at least on the specific point. Such implied acceptance disentitles
    the opposing party to challenge it later or, in a closing speech, to invite the
    jury to disbelieve it:
R. v. Hart
(1932), 23 Cr. App. R. 202 (Ct. Crim.
    App.), at pp. 206-207;
R. v. Fenlon
(1980), 71 Cr. App. R. 307 (C.A.),
    at pp. 313-314.

[80]

As
    a rule of fairness, the rule in
Browne v. Dunn
is not a fixed rule.
    The extent of its application lies within the sound discretion of the trial
    judge and depends on the circumstances of each case:
R. v. Paris
(2000), 150 C.C.C. (3d) 162 (Ont. C.A.), leave to appeal to S.C.C. refused,
    [2001] S.C.C.A. No. 124, at paras. 21-22;
R. v. Giroux
(2006), 207
    C.C.C. (3d) 512 (Ont. C.A.), leave to appeal to S.C.C. refused, [2006] S.C.C.A.
    No. 211, at para. 42.

[81]

Compliance
    with the rule in
Browne v. Dunn
does not require that every scrap of
    evidence on which a party desires to contradict the witness for the opposite
    party be put to that witness in cross-examination. The cross-examination should
    confront the witness with matters of
substance
on which the party
    seeks to impeach the witnesss credibility and on which the witness has not had
    an opportunity of giving an explanation because there has been no suggestion
    whatever that the witnesss story is not accepted:
Giroux
, at para.
    46;
McNeill
, at para. 45. It is only the nature of the proposed
    contradictory evidence and its significant aspects that need to be put to the
    witness:
Dexter
, at para. 18;
R. v. Verney
(1993), 87 C.C.C.
    (3d) 363 (Ont. C.A.), at pp. 375-376;
Paris
, at para. 22; and
Browne
    v. Dunn
, at pp. 70-71.

[82]

In
    some cases, it may be apparent from the tenor of counsels cross-examination of
    a witness that the cross-examining party does not accept the witnesss version
    of events. Where the confrontation is general, known to the witness and the witnesss
    view on the contradictory matter is apparent, there is no need for
    confrontation and no unfairness to the witness in any failure to do so.

[83]

It
    is worthy of reminder, however, that the requirement of cross-examination does
    not extend to matters beyond the observation and knowledge of the witness or to
    subjects upon which the witness cannot give admissible evidence.

[84]

The
    potential relevance to the credibility of an accuseds testimony of the failure
    to cross-examine a witness for the prosecution on subjects of substance on
    which the accused later contradicts the witness testimony depends on several
    factors. The factors include but are not limited to:

i.

the nature of the subjects on which the witness was not cross-examined;

ii.

the overall tenor of the cross-examination; and

iii.

the overall conduct of the defence.

See
Paris
, at para. 23.

[85]

Where
    the subjects not touched in cross-examination but later contradicted are of
    little significance in the conduct of the case and the resolution of critical
    issues of fact, the failure to cross-examine is likely to be of little
    significance to an accuseds credibility. On the other hand, where a central
    feature of a witnesss testimony is left untouched by cross-examination, or
    even implicitly accepted in cross-examination, the absence of cross-examination
    is likely to have a more telling effect on an accuseds credibility:
Paris
,
    at para. 23.

[86]

The
    confrontation principle is not violated where it is clear, in all the
    circumstances, that the cross-examiner intends to impeach the witnesss story:
Browne
    v. Dunn
, at p. 71. Counsel, who has cross-examined the witness on the
    central features in dispute, need not descend into the muck of
minutiae
to demonstrate compliance with the rule:
Verney
, at p. 376.

D.

The Principles Applied

[87]

I
    would not give effect to this ground of appeal.

[88]

Two
    preliminary and oft-made observations serve as my point of departure for the
    discussion that follows.

[89]

First,
    it is too easily overlooked that the rule in
Browne v. Dunn
is not
    some ossified, inflexible rule of universal and unremitting application that
    condemns a cross-examiner who defaults to an evidentiary abyss. The rule is
    grounded in fairness, its application confined to matters of substance and very
    much dependent on the circumstances of the case being tried:
Verney
,
    at p. 376;
R. v. Sadikov
, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para.
    49.

[90]

Second,
    and as a consequence of the fairness origins of the rule, a trial judge is best
    suited to take the temperature of a trial proceeding and to assess whether any
    unfairness has been visited on a party because of the failure to cross-examine.
    Consequently, the trial judges decision about whether the rule has been
    offended and unfairness has resulted is entitled to considerable deference on
    appeal:
Giroux
, at para. 49.

The Shoe in the Door

[91]

The
    state of Tus cell door and Tus position in the cell as the appellant
    approached and entered were of some importance to both the prosecution and
    defence at trial. It was not controversial that Tu slept late, at least as a
    general rule. Nor was it disputed that the appellant approached Tus cell after
    the doors had been cracked open at 9:00 a.m. on May 5.

[92]

Fallis
    and Ireland gave evidence for the Crown about the appellants approach to the
    door with Clarke. Clarke stayed outside the cell to ensure that the door did
    not close locking the appellant inside and that no one else entered during the
    fight. Neither reported seeing the door propped open by a shoe.

[93]

The
    appellants account of the shoe in place when he approached the door and
    entered Tus cell does not directly contradict a specific denial of the
    presence of a shoe by Fallis and Ireland. But the appellants evidence about
    the shoe was central to his claim that Tu, contrary to his usual habit of
    sleeping late, was awake and awaiting the appellants arrival. That Tu had
    taken the time to open the door and to secure it against accidental or
    premature closure could also render it more probable that he took other
    precautions to protect himself against a surprise attack, such as having a
    knife accessible to him in his cell. These arrangements tended to support the
    appellants claim of self-defence and neuter the Crowns theory that the
    appellant took the knife with him when he entered Tus cell, caught Tu off
    guard and then stabbed him to death.

[94]

None
    of Clare, Ireland or Fallis testified about seeing anything in the doorway to
    Tus cell holding the door ajar as the appellant and Clarke approached and the
    appellant entered. According to both Clare and Ireland, it was only
after
the appellant had entered Tus cell that his backup, Clarke, put a shampoo
    bottle in the doorway to ensure the door did not lock the appellant inside the
    cell with Tu. Fallis testified that Clarkes foot in the doorway was what
    prevented locking.

[95]

The
    appellants version challenged the reliability of the evidence of Clare,
    Ireland and Fallis and the accuracy of their observations. The placement of the
    shoe in the door in advance of the appellants entry was a matter of
    significance to the facts of the case and not some inconsequential detail. It
    was a subject on which both Fallis and Ireland should have been cross-examined.
    The failure to do so was of sufficient significance to permit the trial judge
    to find that counsel had not complied with
Browne v. Dunn
. The failure
    to cross-examine Clare was of less significance since it was clear to all
    parties that his evidence was of so incredible and romancing a character as
    to be unworthy of credit on any issue of significance:
Browne v. Dunn
,
    at p. 79.

The Ayres Threat

[96]

Ayres
    and the appellant were cellmates, but not friends. Ayres was a friend of Tu.
    Both testified that the appellant was awake during the night immediately
    preceding the killing. Ayres said the appellant was awake stewing in anger over
    the deceased. The appellant said he stayed awake because he was concerned Ayres
    would attack him during the night. Ayres was not cross-examined about any
    threats made to the appellant or about anything he may have said to the
    appellant about future consequences of the failure to respond to Tus
    challenge.

[97]

The
    appellants state of mind within hours of killing Tu was an important issue at
    trial. The appellants account of his interaction with Ayres created an
    impression that the appellant was fearful of an attack from him, not that he
    was stewing over what Tu had done and was thus more likely to have been the
    aggressor in the fight the following morning.

The Post-offence Remark

[98]

The
    appellant walked by Fallis and Ireland after leaving Tus cell. In their testimony,
    neither Fallis nor Ireland mentioned a comment by the appellant as he headed
    towards Mirs cell with the knife in his hand. At the very least, it was
    implicit in the account provided by Fallis and Ireland that the appellant had said
    nothing as he passed them by.

[99]

In
    his testimony, the appellant claimed that he said to Fallis your friend needs
    some help as he left Tus cell and walked toward Mirs cell. Fallis then went
    to Tus cell to check on him.

[100]

The appellants
    testimony contradicted Falliss evidence. Falliss version reflects a lack of concern
    on the appellants part for Tu, which tends to rebut the appellants later
    claim of a killing in lawful self-defence. The appellants version, and
    expressed concern about Tus condition, provides some support for a claim that
    Tu died as a result of an unfortunate consequence of a consensual fight in
    which the appellant acted lawfully, rather than as a result of a
    previously-formulated plan to kill.

E.

Conclusion

[101]

Whether the rule
    in
Browne v. Dunn
is offended by failure to cross-examine on a
    specific matter in a particular case cannot be determined in the abstract. Each
    case is different. The rule is flexible, not rigid. It is rooted in fairness.
    Reasonable people may differ about on which side of the line a failure to
    cross-examine on a particular point falls. A trial judge should be accorded
    considerable deference on a decision about its application. A trial judge has a
    reserved seat at trial. We have a printed record.

[102]

Another trial
    judge may not have considered what occurred here as offensive to the flexible
    rule in
Browne v. Dunn
. But that is beside the point. This trial judge
    did. I am unable to conclude that he abused his discretion in reaching that
    conclusion.

Ground #2: The Remedy for the
    Breach

[103]

The second
    ground of appeal has to do with the remedy applied by the trial judge for the
    breach of the rule in
Browne v. Dunn
.

[104]

It is helpful to
    begin with a brief outline of the circumstances in which the breach of the rule
    was first raised at trial.

A.

The Complaint

[105]

The trial Crown
    made no complaint about any breach of the rule in
Browne v. Dunn
when
    the appellant testified at trial.

[106]

In a pre-charge
    conference held on July 5, 2006, prior to the closing addresses of counsel, the
    trial Crown raised the issue about breach of the rule. In a subsequent
    pre-charge conference held on July 7, 2006, he sought an instruction in the
    jury charge that the jury could take the failure of defence counsel to cross-examine
    Fallis, Ireland, Ayres and Clare on contradictory evidence given by the
    appellant into account in assessing the weight to assign to the appellants
    (and the witnesses) testimony.

[107]

Trial counsel
    for the appellant took issue with Crown counsels request. He submitted that
    Crown counsel was required first to seek leave to recall the witnesses and to
    obtain from them, under oath and subject to cross-examination, their response
    to the contradictory evidence. A failure to seek to recall the witnesses, trial
    counsel submitted, disentitled the Crown to the instruction it sought.

[108]

The trial Crown
    disputed the necessity for such a request as a condition precedent to the requested
    jury instructions. The Crown pointed out that Ayres was in custody and Fallis
    was in custody outside the province, rendering it impractical to recall them.

B.

The Ruling of the Trial Judge

[109]

The trial judge
    was satisfied that Crown counsel had established breaches of the rule in
Browne
    v. Dunn
. He found

that
    the breaches warranted a jury instruction similar to what was given by the
    trial judge in:
Giroux
, at para. 43.

[110]

The trial judge
    said nothing about the obligation of the Crown to first seek to recall the
    witnesses or the relevance of Crown counsels failure to do so on the
    availability or content of the jury instruction Crown counsel sought.

C.

The Position of the Parties

[111]

For the
    appellant, Mr. Snell says the proper remedy for breach of the rule in
Browne
    v. Dunn
in this case was to recall the witnesses to obtain their evidence
    about the contradictory version offered by the appellant. The trial Crown
    offered no explanation about the whereabouts of Clare and Ireland, thus no
    reason why they could not be recalled. Ayres and Fallis were both in custody.
    Their attendance could be easily secured by a judges order. The authorities
    emphasize witness recall as the first option. The trial judge should have
    required the Crown to choose whether to recall the witness.

[112]

Mr. Snell
    submits that where the Crown fails to take up the recall option, or, as here,
    fails to request it, the Crown is
not
entitled to a
Browne v. Dunn
instruction. In either of these circumstances, only the traditional you may
    believe some, all or none of what a witness says instruction need be given and
    it is wrong to include the
Browne v. Dunn
instruction.

[113]

In the
    alternative, Mr. Snell says the instruction here was seriously flawed because
    it failed to remind jurors that counsels failure to cross-examine may have
    been due to inadvertence, and thus should not be a factor the jurors could
    consider in assessing the appellants credibility or the reliability of his
    evidence.

[114]

For the
    respondent, Mr. Finley replies with a reminder that once a breach of the rule
    has occurred, a trial judge has broad discretion to choose a remedy that best
    assures justice. Sometimes, the proper choice is to recall a witness. But not
    always. On other occasions, as here, justice is best served by a jury
    instruction.

[115]

Mr. Finley says
    the instruction remedy chosen by the experienced trial judge here demonstrates,
    by necessary implication, that the trial judge did not view the recall of
    witnesses as a viable solution, even though he made no specific mention of that
    alternative in his reasons. The choice of remedy is discretionary and dependent
    on a variety of factors, which in this case included completing the case expeditiously
    in advance of the long-standing commitments of jurors made on the basis of an
    estimate trial time long surpassed.

[116]

Mr. Finley
    acknowledges the trial Crown should have raised the
Browne v. Dunn
issue before the defence had closed its case when witness recall was a viable
    alternative. That said, the failure of trial Crown to ask for an order to
    permit recall of the witnesses does not bar the remedy applied here  the jury
    instruction that left failure to cross-examine as a factor, one of many, in
    assessing the appellants credibility as a witness. The omission of a reference
    to inadvertence was not an error, particularly in light of the trial judges
    conclusion that the failure was a deliberate and a tactical choice by trial
    counsel.

D.

The Governing Principles

[117]

It should
    scarcely surprise that breaches of a rule grounded in fairness do not attract a
    single or exclusive remedy. The remedy is a function of several factors
    including, but not only:

·

the seriousness of the breach;

·

the context of the breach;

·

the timing of the objection;

·

the position of the offending party;

·

any request to permit recall of a witness;

·

the availability of the impugned witness for recall; and

·

the adequacy of an instruction to explain the relevance of
    failure to cross-examine.

See
Dexter
, at para. 20;
R. v. Lyttle
,
    2004 SCC 5, [2004] 1 S.C.R. 193, at para. 65.

[118]

In the absence
    of a fixed relation between breach and remedy, appellate courts accord
    substantial deference to the discretion exercised by a trial judge in deciding
    what remedy is appropriate for breach of the rule:
Dexter
, at para.
    22;
Giroux
, at para. 49; and
R. v. Blom
(2002), 61 O.R. (3d)
    51 (C.A.), at para. 20.

[119]

In the menu of
    remedies available to a trial judge who has determined that the rule in
Browne
    v. Dunn
has been breached are recall of the witness and an instruction to
    the jury about the relevance of the failure to cross-examine as a factor for
    them to consider in assessing the credibility of an accused as a witness and
    the reliability of his or her evidence:
Dexter
, at para. 21;
McNeill
,
    at paras. 46-47 and 49.

[120]

In many cases,
    the first remedy a trial judge might consider is the availability of the
    witness for recall. In cases in which the witness is available without undue
    disruption of trial continuity and disjoinder of the narrative, the aggrieved
    party has the option of recalling the witness or declining to do so. Failure to
    take advantage of the opportunity to recall a witness may mean that the
    aggrieved party may not get the benefit of a
Browne v. Dunn
instruction in the charge to the jury:
McNeill
, at para. 48. But the
    rule is not inflexible, nor is the failure to seek or to recall an available
    witness the death knell for a specific jury instruction:
Giroux
, at
    para. 48;
McNeill
, at para. 50. Said another way, recall is not always
    a condition precedent to inclusion of a
Browne v. Dunn
instruction:
Giroux
,
    at para. 48.

[121]

A trial judge
    who decides to give a specific instruction to the jury about the failure to
    comply with the rule in
Browne v. Dunn
as a factor to consider in the
    jurys credibility assessment need not pronounce a specific word formula to
    achieve that purpose. The instructions should not be characterized as a
    special instruction, but should make it clear that the failure has relevance
    for the credibility of the witness who was not confronted with the
    contradictory evidence, as well as the credibility of the witness who gave the
    contradictory evidence. The instruction need not elaborate on the obligations
    of counsel:
Paris
, at paras. 27-29;
Dexter
, at para. 43.

[122]

A final point
    about the timing of a
Browne v. Dunn
objection is appropriate.

[123]

The trial Crown
    did not raise his
Browne v. Dunn
complaint until the pre-charge
    conference. The basis for the complaint arose when the appellant testified. The
    trial Crown said nothing then and nothing during the remainder of the defence
    case. After the defence had closed its case, the trial Crown did not ask the
    trial judge to recall the affected witnesses so that contradictory evidence
    could be put to them and their response heard by the jury.

[124]

Timely objection
    is consistent with the duty of Crown counsel under
Boucher v. The Queen
,
    [1955] S.C.R. 16, at pp. 23-24;
Dexter
, at para. 37. Lying in the
    weeds to seize upon the failure to cross-examine as a basis for instruction
    that counsels default tells against the credibility of an accused is inimical
    to the Crowns duty of fairness. At the very least, Crown counsel should
    provide some explanation for the lack of timely objection:
Giroux
, at
    para. 49;
Dexter
, at para. 37. No special rule applies to inmates or
    otherwise problematic witnesses. Absence of a timely objection to an alleged
    breach of the rule is a factor for the trial judge to consider in determining
    the nature of the remedy, if any, best suited to respond to the breach. On
    appeal, the absence of a timely objection is also a factor to be taken into
    account in determining whether the lateness of the objection, coupled with the
    remedy applied, caused sufficient unfairness that a miscarriage of justice
    resulted.

E.

The Principles Applied

[125]

Several reasons
    persuade me not to give effect to this ground of appeal.

[126]

First, the trial
    judges choice of remedy, a jury instruction about the impact of the breach as
    a factor in the assessment of the appellants credibility, is entitled to
    considerable deference:
Dexter
, at para. 22;
Giroux
, at para.
    49; and
Blom
, at para. 20. The remedy applied by the trial judge for
    the breach was one of several available to him under the existing jurisprudence
    in this province and elsewhere. The trial judge made no error in principle.

[127]

Second, the
    trial judge had the unenviable task of fashioning a remedy that met the ends of
    justice in the waning moments of a trial that had already extended well beyond
    its anticipated completion date. He had to take into account commitments jurors
    had made on the basis of the original trial estimate. The alternative of
    witness recall would have disrupted trial continuity and pushed the addresses
    of counsel and the charge further into the future, exacerbating the problems
    arising from the jurors commitments. In the real world of trial management,
    perfect solutions are unattainable. The remedy chosen here was reasonable, took
    into account the relevant circumstances and met the ends of justice.

[128]

Third, the
    substance of the instruction was consistent with the governing authorities:
Dexter
,
    at para. 43. The trial judge told the jury that the failure to cross-examine
    the inmate witnesses on the contradictory aspects of the appellants evidence
    was a
factor
that they were entitled, but not required, to consider in
    their determination of the weight to assign to the appellants testimony. Permitted,
    in other words, but not required. The instruction did not expressly say or
    suggest by necessary implication that the failure to cross-examine required the
    jury to draw an adverse inference against the appellants credibility or the
    reliability of his testimony.

[129]

Fourth, the
    trial judge characterized his instruction as a comment on the testimony of
    the appellant, having earlier apprised the jury that they were not bound by his
    comments on issues of fact. He also made it clear that the tactical decisions
    of counsel were not to be visited on the appellant. His failure to go further,
    for example to refer to the obligations of counsel in cross-examination or to
    make specific mention of negligence, inadvertence or oversight, did not
    render erroneous or otherwise compromise a proper instruction:
Paris
,
    at paras. 28-29.

[130]

Finally, on the
    issue of timing, this is yet another instance of Crown counsel waiting until
    the penultimate stage of the trial to register an objection based on a failure
    to comply with
Browne v. Dunn
. In cases like this, the
Browne v.
    Dunn
objection crystallizes when an accused gives evidence on a point of
    substance about which a relevant Crown witness was not cross-examined. The time
    is then ripe for an objection, despite the inevitable compromise of trial
    continuity that occurs when any objection is taken to the introduction of
    evidence in a jury trial.

[131]

This court and
    others have emphasized the importance of timely objections based on alleged
    failure to comply with the rule in
Browne v. Dunn
. Yet Crown
    dilatoriness persists, as in this case, as if some Gotcha principle were at
    work. Nothing is to be gained by such an approach which, in some cases at
    least, may compromise trial fairness and perhaps even integrity. The desired
    instruction will not always be given:
McNeill
, at para. 47;
Paris
,
    at para. 29.

CONCLUSION

[132]

For these
    reasons, I would dismiss the appeal.

Released: April 10, 2015 (DW)

David
    Watt J.A.

I
    agree M. Tulloch J.A.

I
    agree M.L. Benotto J.A.

Appendix A

Regina v. Richard Quansah

Let
    me comment on Mr. Quansah's testimony that Tu had a shoe propping his door open
    in expectation of Quansahs arrival. It is for you to determine whether in fact
    a shoe was placed as Mr. Quansah says. To assist you in that determination I
    want to tell you a couple of factors, that you may, but you are not obliged to
    consider, as you determine how much weight you want to assign to Mr. Quansah's
    evidence.

It
    is clear that the presence of the shoe is an important piece of evidence
    capable of supporting the consensual nature of the confrontation     in cell 9.
    While the consequences of tactical decisions made by his counsel at trial are
    not to be visited upon the accused, one factor you can consider as you
    determine how much weight to give Mr. Quansah's evidence is the opportunity
    given to other witnesses to challenge the evidence, the credibility of which
    you are assessing.

Messrs.
    Clare, Ireland and Fallis were all in a position to view the door to Tu's cell
    and possibly confirm the presence of a shoe, if that were so. They were
    thoroughly crossexamined to test their credibility and reliability on many
    issues, but none was asked about this material point, that is, whether they saw
    a shoe propping the door open before Quansah entered the cell. On a critical
    point to the defence which is a matter of substance upon which Mr. Quansah
    seeks to impeach the credibility of those witnesses, they were not afforded the
    opportunity to give an explanation by reason of there having been no suggestion
    whatsoever in the course of their evidence that their testimony would not be
    accepted on the issue of whether or how the door was situate in its unlocked
    state.

This
    simply means that Mr. Quansah's evidence, which came after that of Clare,
    Ireland and Fallis, was not held up to scrutiny to the same extent as was the
    testimony of Clare, Ireland and Fallis. You may consider that to be a factor
    that could reduce the weight that you may give to Mr. Quansah's evidence in
    regard the presence of Tu's shoe holding his cell door open in anticipation of
    Quansah's arrival, given that none of Clare, Ireland or Fallis was given an
    opportunity to comment.

While
    I am dealing with the matter of the weight to be given to Mr. Quansah's
    testimony, there are other matters about which none of Clare, Ireland or Fallis
    was given an opportunity to comment because while they were being questioned
    there was no suggestion that their story was not being accepted.

Mr.
    Quansah testified that he did not plan and deliberate the murder of Tu. Michael
    Ayers testified that he was Quansah's cell mate at the time and Quansah was
    awake the whole night brooding. Quansah admitted being awake the whole night
    until early morning when Ayers was taken from the cell in order to go to court.
    He testified that the reason he was awake was not because he was planning and
    deliberating what was to take place when the cell doors were unlocked later
    that morning, but he was awake all night because Ayers, who he regarded as a
    friend of his, taunted him when he went into the cell and he was afraid Ayers
    would harm him.

Ayers
    who testified before Quansah was never asked about threatening     Quansah during
    the night as Quansah later testified. For the reasons I stated previously, that
    is a factor you may, but you are not required to, take into account in
    assessing Mr. Quansah's credibility.

[1]
The relevant part of the trial judges charge is excerpted in Appendix A.


WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R. S., 2015 ONCA 291

DATE: 20150430

DOCKET: C57304

Feldman, Epstein, and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

R.S.

Respondent

Gregory J. Tweney and Michael Perlin, for the appellant

Michael Dineen and Victoria Rivers, for the respondent

Roy Lee, for the intervener the Attorney General of Canada

Heard:  October 7, 2014

On appeal from the sentence imposed on June 12, 2013, by
    Justice Alison Harvison Young of the Superior Court of Justice, sitting without
    a jury, with reasons reported at 2013 ONSC 4088.

Benotto J.A.:

[1]      This is a Crown appeal against sentence. The
    respondent was convicted of two counts of sexual assault and two counts of
    sexual interference following a trial by judge alone. He was sentenced to 7
    years in custody with 2:1 credit for time already served.

[2]      The respondent committed the offences before
    the
Truth in Sentencing Act
, S.C.
    2009, c. 29
(
Act
),
    came into force.  He was charged after it came into force.  The Act imposed an
    upper limit on the credit an offender can receive from a sentencing judge for
    time spent in pre-sentence custody. The sentencing judge determined that the
Act
is of no force and effect to the
    extent that it violates the respondents s. 11(i)
Charter
right not to
    receive a greater punishment than that which was in place at the time the
    offence was committed.  The Crown appeals this determination by the sentencing
    judge.

Background Facts

[3]      The respondent falls into a group of offenders
    who committed an offence before, but were charged and sentenced after the
Act
came into force.

[4]      Here, the offences, as particularized on the
    indictment, were committed from January 2008 until September 2009. The Act came
    into force on February 22, 2010. The respondent was charged and brought into
    custody on December 15, 2010.  The convictions were entered on December 19,
    2012, and the sentencing reasons were delivered on June 12, 2013.

The Earlier Pre-Sentence
    Custody Regime

[5]      When the appellant committed the offences in
    2008 and 2009, s. 719(3) of the
Criminal Code
, R.S.C. 1985, c. C-46 provided:

(3) In determining the sentence to be imposed on a
    person convicted of an offence, a court may take into account any time spent in
    custody by the person as a result of the offence.

[6]      Under this provision, sentencing judges had
    broad discretion to award credit for pre-sentence custody. There were no
    restrictions on the reasons for giving credit, nor the rate at which credit was
    granted:
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575, at para.
    20.  The Supreme Court approved credit of two days for every day in custody, noting
    that there was no rigid formula:
R. v. Wust
, 2000 SCC 18, [2000] 1
    S.C.R. 455, at para. 45.  Different ratios could be applied depending on the
    conditions of the offenders pre-sentencing detention:
Wust
, at para.
    45. Sometimes credit at a ratio of 3:1 or even 4:1 would be awarded if the offenders
    pre-sentence detention was very harsh:
Summers
, at paras. 3, 31.

[7]      Credit for time served  that is, credit at a
    rate of at least 1:1  was usually granted because [i]ncarceration at any
    stage of the criminal process is a denial of an accuseds liberty:
R. v.
    Rezaie
(1996), 31 O.R. (3d) 713 (C.A.), at p. 721.  As noted by
    Karakatsanis J., writing for the court in
Summers
, at para. 21:

[I]t would be unfair if a day spent in custody, prior to
    sentencing, were not counted towards an offenders ultimate sentence.
    Otherwise, an offender who spent time in pre-sentence custody would serve
    longer in jail than an identical offender who committed an identical offence,
    but was granted bail.

[8]      Credit at higher ratios was justified by the rationale
    discussed in
Summers
, to ensure that the offender does not spend more
    time behind bars than if he had been released on bail.  As explained by
    Karakatsanis J. at paras. 25-27:

In practice, the vast majority of those serving reformatory
    sentences are released on remission ... at approximately the two-thirds point
    in their sentence....

Because a sentence begins when it is imposed (s. 719(1)) and
    the statutory rules for parole eligibility and early release do not take into
    account time spent in custody before sentencing, pre-sentence detention almost
    always needs to be credited at a rate higher than 1:1 in order to ensure that
    it does not prejudice the offender.

A ratio of 1.5:1 ensures that an offender who is released after
    serving two thirds of his sentence serves the same amount of time in jail,
    whether or not he is subject to pre-sentence detention.

The Act and the New Regime

[9]      The
Act
amended
    s. 719 of the
Criminal Code
to impose an upper limit, a so-called
    hard cap, on the ratio at which credit for pre-sentence custody  could be granted.
    The maximum ratio is now 1.5:1.  The relevant subsections of s. 719 now read:

(3) In determining the sentence to be imposed on a
    person convicted of an offence, a court may take into account any time spent in
    custody by the person as a result of the offence
but the court shall limit
    any credit for that time to a maximum of one day for each day spent in custody
.

(3.1)
Despite subsection (3), if the circumstances
    justify it, the maximum is one and one-half days for each day spent in custody
unless the reason for detaining the person in custody was stated in the record
    under subsection 515(9.1) or the person was detained in custody under
    subsection 524(4) or (8).  [Emphasis added.]

[10]     Section 5 of the Act, which is the focus of
    this appeal, is a transitional provision that reads:

Subsections 719(3) to (3.4) of the [
Criminal Code
]
    ... apply only to persons
charged
after the day on which those
    subsections come into force. [Emphasis added.]

[11]     In
R. v. Clarke
, 2013 ONCA 7, 115
    O.R. (3d) 75, affd 2014 SCC 28, [2014] 1 S.C.R. 612, it was held that s. 5 of
    the Act works to apply the new credit regime retrospectively to offences
committed

prior
to February 22, 2010, so long as the offender was
charged

after
that date.

Effect on the Respondent

[12]     The effect of a retrospective application of
    the new regime on the respondent would be significant.  He spent about 30
    months in custody before sentencing. Under the previous regime, he would have
    been given credit for 60 months if, as the sentencing judge found, the typical
    2:1 basis was appropriate.  Pursuant to the new provisions, he would receive a
    maximum credit of approximately 45 months on a 1.5:1 basis.

REASONS FOR SENTENCE

[13]     The sentencing judge held that the amendments
    to s. 719 were of no force and effect against the respondent, as their
    retrospective application violated his s. 11(i)
Charter
rights.  This
    section provides that a when punishment for an offence is varied between the
    time of commission and the time of sentencing, the offender has the benefit of
    the lesser punishment.  The sentencing judge noted that this issue arose as a
    matter of first instance because, prior to the decision of this court in
Clarke
,
    the practice on the part of both Crown and defence counsel in this court had
    generally been to ... invite sentencing courts to apply former provisions
    whenever the offences had been committed before the [Act] came into force.

[14]     The sentencing judge found that pre-sentence
    custody is recognized in the case law as being punishment notwithstanding
    that those who are subject to it are, until conviction, innocent. The
    sentencing judge said that incarceration is, by its nature ... quintessentially
    punitive.  (See also
R. v. Rodgers
, 2006 SCC 15.)

[15]     She also found that s. 5 of the Act varied
    this punishment because it removed any chance of credit at a rate of 2:1 which
    had been the usual practice.

[16]     The new provisions violated the respondents
    s. 11(i) right to the benefit of the lesser punishment available between the
    time of commission of the offences and the time of sentencing.  As a result,
    the sentencing judge considered the appropriate amount of credit for pre-sentence
    custody under the previous provisions.  She was satisfied that this was not a
    case in which a court would have departed from the usual practice of granting
    2:1 credit.  The respondent was credited with 60 months, leaving two years of
    the sentence to be served.

GROUNDS
    OF APPEAL

[17]     The appellant submits that the sentencing
    judge erred in finding that s. 5 of the
Act
offends s. 11(i) of the
Charter
as that provision does not constitute
    punishment that has been varied.

[18] The appellant also submits that if s. 11(i) has
    been violated, the violation is justified under s. 1 of the
Charter
.
    This argument was not made before the sentencing judge.

[19] The
intervener, the Attorney General of Canada, submits that international
    jurisprudence on provisions corresponding to s. 11(i) in the human rights
    protection instruments of those jurisdictions supports the appellants position.

ANALYSIS

[20]     Section 11(i) of the
Charter
provides:

Any person charged with an offence has the right

(i) if found guilty of the offence and if the
    punishment for the offence has been varied between the time of commission and
    the time of sentencing, to the benefit of the lesser punishment.

[21]     Section 11(i) is concerned with two moments in
    time: the time of commission of the offence and the time of sentencing. If the
    punishment for the offence has changed between those two moments, the accused
    is entitled to the benefit of the lesser punishment.

Did the sentencing judge err in
    finding that pre-sentence custody is punishment under s. 11(i)?

[22]     The appellants first submission is that
    limiting the respondents credit for pre-sentence custody to 1.5:1 did not
    engage s. 11(i) of the
Charter
because the imposition of the hard cap
    was not punishment within the meaning of s. 11(i).  In
Wust
, at
    para. 41, Arbour J. wrote for the court:

To maintain that pre-sentencing custody can never be
deemed
punishment following conviction because the legal system does not punish
    innocent people is an exercise in semantics that does not acknowledge the
    reality of pre-sentencing custody so carefully delineated by Laskin J.A., in
Rezaie
,
supra
, and by Gary Trotter in his text,
The Law of Bail in Canada
(2nd ed. 1999), at p. 37:

Remand prisoners, as they are sometimes called, often spend
    their time awaiting trial in detention centres or local jails that are
    ill-suited to lengthy stays. As the Ouimet Report stressed, such institutions
    may restrict liberty more than many institutions which house the convicted. Due
    to overcrowding, inmate turnover and the problems of effectively implementing
    programs and recreation activities, serving time in such institutions can be
    quite onerous.

Therefore, while pre-trial detention is not intended as
    punishment when it is imposed, it is, in effect, deemed part of the punishment
    following the offenders conviction, by the operation of s. 719(3). [Emphasis
    in original.]

[23]
Wust
concerned the definition of
    punishment in a mandatory minimum provision of the
Criminal Code
,
    namely s. 344(a). By analogy, the rationale applies here.

[24]    The appellant submits that
R. v. Mathieu
,
    2008 SCC 21, [2008] 1 S.C.R. rejected this finding from
Wust
.
    However, in
Mathieu
the Supreme Court held that pre-sentence custody is
    not part of the sentence, but is only one factor taken into account by the
    judge in determining the sentence.   As noted by the sentencing judge, this
    does not address whether pre-sentence custody is deemed part of the punishment
    under s. 11(i).  In
Wust,
at para.
36,
Arbour J. pointed to
    the helpful distinction made by this court in
R. v. McDonald
(1998),
    40 O.R. (3d) 641 (C.A.), that sentencing is a judicial determination of a
    legal sanction, in contrast to punishment which is the actual infliction of
    the legal sanction.

[25]     The appellant also submits that there is a new
    definition of punishment as a result of
Whaling v. Canada (Attorney
    General),
2014 SCC 20, [2014] 1. S.C.R. 392.  The sentencing judge did not
    have the benefit of
Whaling.

[26]     In
Whaling
, the Supreme Court
    considered the meaning of the term punished in s. 11(h) of the Charter, which
    includes the right not to be punished twice for the same offence.   That case
    dealt with Parliaments repeal of accelerated parole review for first-time
    non-violent offenders. The repeal applied retrospectively to otherwise-eligible
    offenders who had been sentenced prior to the repeal coming into force.  The
    Supreme Court found that this retrospective application violated the
    respondents s. 11(h) right not to be punished ... again and was not
    justified under s. 1 of the Charter.

[27]     Wagner J., writing for the court, stated at
    para. 60:

I will not articulate a formula that would apply to every case,
    because such a formula is not needed to resolve this appeal and the effect of
    every retrospective change will be context-specific. That said, the dominant
    consideration in each case will in my view be the extent to which an offenders
settled expectation
of liberty has been thwarted by retrospective
    legislative action. It is the retrospective frustration of an expectation of
    liberty that constitutes punishment. [Emphasis added.]

[28]     The appellant argues that decreasing the
    credit for pre-sentence custody does not infringe s. 11(i), because at the time
    of committing the offence, the offender can have no settled expectation of
    any particular credit for time served.

[29]     In
Whaling
, the Supreme Court did not
    limit punishment under s. 11(h) to state actions that thwart a settled
    expectation of liberty.   In Wagner J.s words, set out above, this was the
    dominant consideration.  But it is also clear in
Whaling
that the
    court thought that there were other considerations.  At para. 74, Wagner J.
    wrote:

[E]very retrospective change must be analyzed in detail before
    conclusions can be drawn as to its possible punitive effect. The greater the
    impact on the offenders settled expectation of liberty,
or the greater the
    likelihood of additional incarceration
, the more likely it is that a given
    retrospective change will violate s. 11(h). [Emphasis added.]

[30]     On the plain words of
Whaling
, the
    greater the likelihood of additional incarceration, the more likely a
    retrospective change will constitute punishment.  The respondent would be
    subject to about 15 months of additional incarceration if the new regime
    applied to him.

[31]     In
Liang v. Canada (Attorney General)
,
    2014 BCCA 190, 311 C.C.C. (3d) 159, leave to appeal refused, [2014] S.C.C.A.
    No. 298, the British Columbia Court of Appeal had occasion to address s. 11(i)
    post-
Whaling
.  The Court considered whether the retrospective repeal
    of accelerated parole review also violated s. 11(i).   I agree with the
    following analysis of MacKenzie J.A. at para 23:

I see the objectively ascertainable effect of extended
    incarceration as constituting the relevant punishment... On this analysis,
    where the effect of changes to the parole system appreciably increases the
    amount of time an offender would be incarcerated, in comparison to what he or
    she would have been
expected
to serve under the prior regime, it will
    constitute punishment. What matters is whether the changes substantially
    increase the risk of additional incarceration, thereby frustrating an
    objective expectation of liberty, not whether the offenders subjective
    expectations have been dashed. [Emphasis in original.]

[32]     Accordingly, the sentencing judge did not err
    in finding that pre-sentence custody is punishment under s. 11(i).

Did the sentencing judge err in
    finding that punishment had been varied?

[33]     The appellant submits that the sentencing
    judge erred in finding that s. 5 of the Act varied the punishment for the
    offence between the time of commission and the time of sentencing.  The appellant
    argues that to engage s. 11(i), the punishment varied must have been one set
    out by legislation, not by judges.  The appellant relies on
R. v. R.D.
(1996), 48 C.R. (4th) 90 (Sask. C.A.), where the court stated, at p. 94:

We are all of the opinion that the learned trial judge erred in
    his interpretation and application of s. 11(i) of the
Charter
....
    Under this provision punishment must be construed to mean the punishment
    fixed by Parliament rather than any range of sentences that may emerge in court
    decisions within the controlling statutory provisions. This is not a case where
    Parliament has introduced significant legislative changes with respect to
    penalty...

[34]     As the sentencing judge noted, Parliament has
    introduced a significant legislative change that affects the penalty to be
    imposed on the respondent.  This statutory limitation on the discretion of a
    sentencing judge, applied retrospectively under s. 5 of the Act, engages s.
    11(i) of the Charter.

[35]     By denying him the benefit of the earlier pre-sentence
    custody credit regime, which was extant at the time he committed the offences, s.
    5 of the Act violates the respondents s. 11(i) rights.

[36]     Therefore the sentencing judge did not err in
    finding that punishment had been varied.

Is the s. 11(i) violation justified
    under s.1 of the Charter?

[37]     For the first time on appeal, the appellant
    seeks to justify the s. 11(i) violation under s. 1 of the
Charter
.  As
    a general rule, s. 1 should not be raised for the first time on appeal.  The
    Supreme Court has consistently cautioned against deciding constitutional cases
    without an adequate evidentiary record:
Christie v. British Columbia
    (Attorney General)
, 2007 SCC 21, [2007] 1 S.C.R. 873, at para. 28.  That
    said, the appellant has failed to establish that the violation is justified.

[38]     The test under s. 1 is well-established. The
    impugned law must have a pressing and substantial objective and the means
    chosen must be rationally connected to the objective, minimally impair the
Charter
right, and be proportionate:
R. v. Oakes
, [1986] 1 S.C.R. 103.

Pressing and substantial objective

[39]    In applying the
Oakes
test in this
    case, the focus is not on the governments broader objectives for restricting
    credit for pre-sentence custody.  Rather, only the specific objectives of the transitional
    provision in s. 5 of the Act should be considered:
Liang
, at para. 48.
    In other words, the question is not whether limiting credit for pre-sentence
    custody generally is justified; rather, the question is whether it is justified
    to limit credit for the group of offenders like the respondent, who are otherwise
    entitled under the
Charter
to lesser punishment.

[40]    For the purposes of this appeal, I will assume,
    without deciding, that the appellant is correct in asserting that s. 5 of the
    Act has the following two pressing and substantial objectives:

1) enhancing parity by ensuring uniform assessment of time
    spent in remand based on the date individuals are charged with an offence; and

2) creating certainty as to the scope of the amendments by
    clearly defining the category of offenders to whom the new rules apply.

[41]    These two objectives are furthered by uniformly
    applying the new credit rules to everyone charged after February 22, 2010.

[42]    However, the appellant also submits that s. 5
    of the Act has two further pressing and substantial objectives:

3) expediting the transition between the two credit regimes,
    and therefore furthering the objectives of the new regime; and

4) promoting the overall objectives of the Act, since a
    transition provision based on offence date (as opposed to the date of the charge)
    would undermine the Acts objectives by permitting an unknown number of cases
    to be dealt with under the old regime.

[43]    But in any s. 11(i) case, the government could
    argue that the old punishment regime is inadequate, and the new punishment
    regime must be applied retroactively, otherwise the new regimes objectives
    will be impeded. The British Columbia Court of Appeal observed in
Liang
,
    at para. 59, that the fact the offender will receive a lesser punishment, and
    perhaps one that does not meet the objectives of the present sentencing regime,
    is exactly what s. 11(i) contemplates. The court continued, at para. 60:

The effect of applying s. 11(i) of the
Charter
in this
    case is that, as with any other change to sentencing that results in an
    increase in punishment, it will not apply to those who committed an offence
    before the change. The mere assertion that a previous regime has been
    suboptimal, and the new regime preferable, does not negate the application of
    the
Charter
. In other words, the Crown is correct in submitting that
    this decision will delay the full replacement of the old regime with the new.
    However, as the Court found in
Whaling
, that in itself is not
    sufficient to meet its obligation under the
Charter
.

Rational connection

[44]    I accept the appellants submission that s. 5 of
    the Act is rationally connected to its objectives. The transition rule ensures
    the uniform application of the new regime to offenders based on the date they
    enter remand. Furthermore, the transition rule increases certainty, as it
    clearly delineates to whom the new credit rules apply.

Minimal Impairment

[45]    In
R.
    v. Safarzadeh-Markhali
, 2014 ONCA 627,
    122 O.R. (3d) 97, leave to appeal granted, [2014] S.C.C.A. No. 489, this court
    struck down another aspect of the Act. At paras. 116-17, Strathy J.A. (as he
    then was) observed that, while the standard for minimal impairment is
    deferential and the courts must accord a measure of deference to the
    legislature on complex social issues, pre-sentence custody is not a
    particularly complex social issue.

[46]    With
    respect to minimal impairment, in
Whaling
, Wagner J. wrote, at

para. 80:

In my view, having the
    repeal apply only prospectively was an alternative means available to
    Parliament that would have enabled it to attain the objectives of reforming
    parole administration and maintaining confidence in the justice system without
    violating the s. 11(h) rights of offenders who had already been sentenced.
    Regarding the Crown's argument that retrospective application is necessary to
    maintain confidence in the justice system, I would point out that the enactment
    of
Charter
-infringing
    legislation does great damage to that confidence. The Crown has produced no
    evidence to show why the alternative of a prospective repeal, which would have
    been compatible with the respondents constitutional rights, would have
    significantly undermined its objectives.

[47]     This
    rationale, coupled with the fact that there is no evidence with respect to
    minimal impairment, answers the appellants submission.  The appellant has not
    established that the violation is justified under section 1.

Proportionality

[48]    Given my conclusion on minimal impairment,
    there is no need to address the final proportionality branch of the
Oakes
analysis. Nevertheless, I make the following comments.

[49]    The appellant submits that any violation of s.
    11(i) is minor. The Act extinguishes no vested right to a sentence reduction,
    since under the old regime, there was no automatic right to any credit, or to
    credit at a particular ratio. In any event, there is an increasingly small
    group of offenders in the respondents position: offenders who committed their
    offences before February 22, 2010, but were charged afterwards.

[50]    In my view, however, the deleterious effects of
    the impugned provision outweigh its salutary effects. The deleterious effects
    are significant: offenders are punished more than they would otherwise be
    punished, in violation of their
Charter
rights. For example, applying
    the new credit rules to the respondent would result in approximately 15 months
    additional incarceration. By contrast, the salutary effects are largely
    administrative in nature. Furthermore, while the government observes that an
    increasingly small group of offenders are in the respondents position, that argument
    cuts both ways. If only a small group of offenders are in the respondents
    position, there would appear to be little harm in allowing them the benefit of
    the old credit regime.

[51]    In my view, the appellants attempted s. 1
    justification should fail.

International jurisprudence is of little value in resolving
    the appeal

[52]    I accept the respondents submission that the
    international jurisprudence on statutory provisions akin to s. 11(i), while of
    academic interest, is of little concrete value here. Not only were those courts
    interpreting different statutory provisions in different criminal justice
    systems, but Canada has its own jurisprudence on s. 11(i) and related
Charter
rights.  I see no need to address the substance of the international
    jurisprudence here.

Disposition

[53]      For these reasons, I would dismiss the
    appeal.

Released: K.F. April 30, 2015

M.L. Benotto J.A.

I agree K. Feldman
    J.A.

I agree Gloria
    Epstein J.A.