COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Li, 2012 ONCA 291

DATE: 20120507

DOCKET: C45980 and C44110

OConnor A.C.J.O, Feldman and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andy Li and Wing Hay Lau

Appellants

Michael W. Lacy, for the appellant Andy Li

Mark C. Halfyard, for the appellant Wing Hay Lau

Kimberley Crosbie and Matthew Asma, for the respondent

Heard: October 13, 2011

On appeal from the conviction entered by a jury, presided
    over by Justice Fred Graham of the Superior Court of Justice, dated January 6,
    2005.

Feldman J.A.:

BACKGROUND OVERVIEW

[1]

The appellants were both convicted in a jury trial of aggravated assault.
    The appellant Lau was also convicted of possession of a weapon (a lead pipe)
    for the purpose of committing an indictable offence. The charges arose out of
    an attack on another young man, Ching Billy Law, which took place in an
    internet café called Virtual Domain on July 25, 2002. The main perpetrator was
    a young offender, S.E., who came into the café where the victim was sitting and
    attacked him with a machete, almost severing his hand. S.E. was convicted of
    aggravated assault in an earlier trial.

[2]

The evidence against the appellants was very weak. The attack involved a
    large number of young men and was alleged to have occurred as part of a
    settling of accounts between Philip Siu and Mike Wong. The victim was alleged
    to be aligned with Siu and the appellants with Wong. The victim had arranged to
    meet with Siu at Virtual Domain that night and was waiting there with a handgun
    when he received a call from Siu advising him that a number of people were
    outside the café in the parking lot. The victim looked out the window and saw
    them as well as Wongs car. When he went back and sat down, a group of 5 to 10
    people quickly came in and attacked him. Law recognized S.E., who attacked him
    with the machete. When Law raised his arm defensively, he suffered a blow from
    the machete to his wrist that almost severed his hand from his arm. Other
    people also struck the victim over a 20 to 30 second time period.

[3]

After the attackers rushed outside, Law followed and saw them get into
    two cars, one of which was Wongs, and drive away. He got rid of his gun, then
    waited for the police and ambulance to arrive.

[4]

The victim knew both appellants and testified that neither of them was
    one of the attackers. Nine independent eye witnesses testified. None identified
    the appellants as attackers. The appellants were put at the scene by two
    discredited witnesses, Heng Lam Ken Chu and Richard Yoon, and by a third
    accomplice, Ritchie Yii. Mr. Yii was the only person who said that the
    appellants attacked the victim and the only one who said the appellant Lau
    attacked the victim with a lead pipe. Mr. Yii also said that earlier that night
    the appellant Li had phoned him to say that they were going to find Mr. Law and
    beat him up. When Mr. Yii, Mr. Li, Mr. Lau, and others met up at President
    Snookers before the attack, the appellant Li repeated these assertions.

[5]

The trial began following a motion to stay the charges based on
    unreasonable delay, which motion was dismissed.  Mr. Yii was out of the country
    at the time of the trial. The trial judge allowed his preliminary hearing
    evidence to be read in pursuant to s. 715(1) of the
Criminal Code
,
    R.S.C. 1985, c. C-46.

[6]

The trial lasted six weeks in addition to an extended break over
    Christmas and New Years. One juror was discharged before the break, and when
    the trial recommenced on January 4, 2005 for closing addresses and the charge
    to the jury, a second juror who was ill that day was also discharged.
    Ultimately, the appellants were convicted.

ISSUES

[7]

There are four common grounds of appeal, and two further grounds raised
    by the appellant Lau:

(1) Did
    the trial judge err by dismissing the motion for a stay based on unreasonable
    delay after 19.5 months, and, in particular, by failing to give effect to the
    evidence of prejudice suffered by the appellants?

(2) Did
    the trial judge err by permitting the Crown to read into evidence the
    preliminary hearing testimony of the witness Ritichie Yii under s. 715(1) of
    the
Code
because he was out of the country at the time of the trial?

(3) Was
    the caution the trial judge gave the jury regarding the evidence of Ritchie Yii
    that was read in, insufficient and misleading? (raised by the appellant Lau)

(4) Did
    the trial judge err by discharging a juror who had heard all of the evidence
    and who was sick for only one day when the trial resumed after the holiday
    break?

(5) Was
    the charge on the routes of liability unnecessarily complicated and confusing
    for the jury? (raised by the appellant Lau)

(6) Was
    the fairness of the trial compromised by giving the jury only parts    of the
    charge in writing after they had begun their deliberations?

ANALYSIS

Issue 1: Should the charges have
    been stayed for unreasonable delay under s. 11(b) of the
Charter
?

[8]

Nineteen and one half months passed between the date the appellants were
    charged and the commencement of their trial. The defence did not waive any
    period of delay, nor did it cause any of the delay. The trial judge broke down
    the periods leading up to the trial as follows: (1) initial inherent intake
    period from March 25, 2003  June 13, 2003: 2.66 months; (2) Crown delay
    with disclosure from June 13, 2003  October 2, 2003: 3.5 months; (3) systemic
    requirements from judicial pre-trial, October 2, 2003, until committal for
    trial following the preliminary hearing, May 11, 2004: 7.25 months; (4) inherent
    intake in the Superior Court from May 11, 2004  June 17, 2004: 1.25 months;
    (5) systemic time to schedule Superior Court trial from June 17, 2004
    November 8, 2004: 4.75 months. Subtracting the inherent intake periods, the
    total time attributable to Crown and institutional delay was 15.5 months.

[9]

On this appeal, the appellants do not challenge these time attributions
    by the trial judge. They submit that the delay was unreasonable because of the
    actual prejudice they suffered while on restrictive bail, and that the trial
    judge made a palpable and overriding error by failing to find that they
    suffered actual prejudice as set out in their affidavits filed on the s. 11(b)
    motion. Despite the fact that those affidavits went unchallenged by the Crown,
    the trial judge found that the appellants assertions of actual prejudice
    caused by the conditions of their house arrest were contrived and he rejected
    them.

[10]

The
    appellants bail conditions amounted to very strict house arrest which did not
    make an exception for work or education. As a result, the appellants were not
    allowed to work, to earn any money, or to socialize at all. Mr. Laus affidavit
    (sworn on information and belief by a student in his counsels office), stated
    that he was obliged to give up a computer business from which he earned some
    money and that he had no money for a bail review application. Family events
    were also cancelled or re-arranged because he could not leave Ontario. He could
    not go to school, and had no social life over the entire period. Mr. Li had to
    give up doing odd jobs for cash, and as a result also had no money for a bail
    review application. He had gained weight because he was housebound and had not
    been able to travel to the United States when his grandfather was dying. His
    family relationships were also strained because of the confinement.

[11]

The
    trial judge rejected the appellants claims regarding work and education, based
    on the fact that they were not substantiated by any details, such as an
    educational plan. He noted that Mr. Lau had breached his bail which did not
    bolster his prejudice claim. The trial judge concluded that the young mens
    biggest problem was being confined with their parents for the period.

[12]

The
    appellants assert that it was not open to the trial judge to reject the
    uncontradicted evidence of the appellants. I do not agree.

[13]

The
    trier of fact is not obliged to accept any evidence tendered before it. Juries
    are routinely told that it is up to them to decide what evidence they accept,
    and that they may accept all, part or none of a witnesss evidence: see e.g.
R.
    v. Mathisen,
2008 ONCA
747, at para. 88. The trial judge gave his reasons for disbelieving the
    affidavit evidence tendered by the appellants on the issue of whether they
    suffered actual prejudice by being prevented from working and going to school
    by the terms of their restrictive bail conditions. He relied on the fact that
    no details were provided regarding the work that the appellants were unable to
    do or an educational plan that was thwarted. The trial judge was entitled to
    require some proof of what was being asserted, particularly on a motion for a
    stay of proceedings where the issue of actual prejudice is an important
    component of the analysis.

[14]

In
    any event, after rejecting the specific prejudice asserted by the appellants,
    the trial judge nevertheless attributed a moderate degree of inferred prejudice
    due to the restrictive bail terms, and factored that into his analysis of
    whether the delay in this case amounted to unreasonable delay that required the
    charges to be stayed. He concluded that the delay was within the guidelines of
R.
    v. Morin
, [1992] 1 S.C.R. 771, and was not unreasonable.

[15]

In
    my view, the trial judge made no reversible error in his assessment of the
    evidence or in applying the necessary factors and in arriving at his conclusion.

[16]

A
    second issue raised by the appellant Lau and also going to the prejudice factor
    is that the delay contributed to the appellants inability to make full answer
    and defence because it was as a result of the delayed trial date that the
    witness Yii had left the country before the trial. The police did not attempt
    to subpoena him until two weeks before the November trial date, at which point
    he had already left the country for Singapore. Mr. Yii was a critical witness
    against the appellants: he was the only witness who said Mr. Lau attacked the
    victim and that he had a lead pipe. His preliminary inquiry evidence was read
    into the record before the jury and no live cross-examination took place before
    the jury.

[17]

In
R. v. Godin
, 2009 SCC 26, [2009] 2 S.C.R. 3, Cromwell J., at para. 30,
    reiterated the role of prejudice in the s. 11(b) analysis:

Prejudice in this context is concerned with the three interests
    of the accused that s. 11
(b)
protects: liberty, as regards to pre-trial
    custody or bail conditions; security of the person, in the sense of being free
    from the stress and cloud of suspicion that accompanies a criminal charge; and
    the right to make full answer and defence, insofar as delay can prejudice the
    ability of the defendant to lead evidence, cross-examine witnesses, or
    otherwise to raise a defence. See
Morin
, at pp. 801-3.

[18]

I
    agree with the appellants that the absence of Mr. Yii from the jurisdiction
    leading to the successful s. 715(1) application to read in his evidence from
    the preliminary hearing prejudiced the appellants ability to cross-examine Mr.
    Yii at the trial. Because the appellants did not know about this problem on October
    4, 2004 when the s. 11(b) motion was heard, it could not have been raised as a
    ground of prejudice at that time. However, once they learned about it, they did
    not seek to re-open and re-argue the motion at the opening of trial, based on a
    material change in circumstances: see
R. v. La
,

[1997] 2 S.C.R. 680, at para.
    28.

[19]

Although
    the trial judge did not analyze the extent of this prejudice in the context of
    the delay motion under s. 11(b), because, through no fault of the defence, it
    was not raised with him, he did address the issue when he decided to allow Mr.
    Yiis preliminary inquiry evidence to be read in. I agree with the respondent
    that given what occurred at trial and given that on this appeal the issue of
    the propriety of allowing the s. 715 motion is squarely raised as a ground of
    appeal, it is in that context that the issue should be addressed, rather than
    as part of the s. 11(b) analysis that was not considered by the trial judge on
    the motion.

[20]

I
    conclude that the trial judge did not err in finding that there was no
    unreasonable delay in this case requiring a stay of the charges.

Issue 2: Did
    the trial judge err in allowing the Crown to read into evidence the preliminary
    inquiry testimony of the witness Ritchie Yii?

(1)

Background

[21]

Ritchie Yii was a Crown witness who testified at the preliminary
    hearing. He was first approached by police detectives in March 2003 about his
    involvement in or knowledge of the attack on Mr. Law the previous July. He
    first denied any involvement but eventually told the police that he had witnessed
    the assault. He then gave a videotaped statement to the police.

[22]

Mr.
    Yii was subpoenaed to testify at the trial of two other young people charged in
    connection with the attack on Mr. Law for a trial in January 2004. However, he
    left Canada for Malaysia before that trial began, and did not return until
    after the date that the preliminary hearing in this case was expected to end.
    It transpired that the latter hearing went on longer than expected and Mr. Yii
    did return to Canada before it was over. Upon his return, Mr. Yii contacted the
    police and picked up a subpoena for the preliminary hearing. He then testified
    at the preliminary hearing. He gave evidence there that he did not obey the
    first subpoena because he did not understand that it was mandatory to do so.

[23]

On
    July 5, 2004, the trial judge set November 8, 2004 for the trial of these
    charges. However, the detectives in charge did not attempt to subpoena Mr. Yii
    to testify at the trial until mid-late October, and it was not until November 4
    that they learned from his mother that he had left for Singapore in September
    to attend school there. When they phoned him in Singapore, he said he was
    willing to return to testify but he could not afford the airfare and did not
    plan to be back until next year. The officer asked the Crown if it would fund
    the witnesss return but there was no evidence about a response. The officer had
    been unable to subsequently reach Mr. Yii by phone.

(2)

The First Ruling

[24]

At
    trial, the Crown sought to read in Mr. Yiis preliminary hearing testimony
    under s. 715(1)(d) of the
Code.
Section
    715(1)
provides:

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,
    or if facts are proved on oath from which it can be inferred reasonably that
    the person

(
a
)     is dead,

(
b
)     has since become and is insane,

(
c
)     is so ill that he is unable to travel or
    testify, or

(
d
)     is absent from Canada,

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.

[25]

At
    first, the defence consented to the proposal. However, consent was withdrawn
    when counsel learned that there had not been full disclosure prior to the
    preliminary inquiry of one of the officers notes regarding the circumstances
    surrounding the taking of the original statement. Consequently, counsel had no opportunity
    to cross-examine that officer on the content of the undisclosed notes. The
    Crowns motion was fully argued following a
voir dire
where the
    officers testified. The trial judges first ruling was that the Crown could not
    read in the evidence under s. 715(1)(d).

[26]

In
    his reasons, the trial judge expressed surprise that there was no explanation from
    the Crown for six occurrences: (1) subpoenas were not served in July or August;
    (2) the investigating officer did not know the trial date prior to October 4
    (the trial judge found this bizarre); (3) the investigating officer did not
    assign anyone to personally serve Mr. Yii, in spite of the importance of his
    testimony; (4) the investigating officer did not follow up on the status of
    serving Mr. Yii prior to November 4; (5) the Crown rejected the suggestion that
    it should pay to bring the witness back; (6) there was no follow-up with the
    witnesss mother in order to solicit her help in reaching him in Singapore.

[27]

The
    trial judge then reviewed in detail the effect of the non-disclosure of the
    officers notes before the preliminary hearing. He concluded that there was
    nevertheless a full opportunity to cross-examine Mr. Yii on all issues at the
    preliminary hearing within the meaning of s. 715(1).

[28]

The
    trial judge then turned to the issue of the lack of due diligence by the police
    and its effect on his residual discretion under s. 715(1) to refuse to allow
    the preliminary hearing transcript to be read in, based on trial fairness. He
    reviewed the case law including the seminal Supreme Court of Canada decision of
R. v. Potvin
, [1989] 1 S.C.R. 525
.

[29]

That
    case held that even where the requirements of the section are met, the word
    may used in the section means that the court has a residual discretion to
    refuse to allow the reading in of the preliminary hearing transcript of the unavailable
    witness to prevent any unfairness that could otherwise result from a purely
    mechanical application of the section:
Potvin
, at p. 550. The court
    recognized two main types of mischief that could lead to unfairness. The
    first was unfairness in the manner in which the evidence was obtained, for
    example, where the witness is temporarily absent from Canada and the Crown
    could have obtained the witnesss attendance at trial with a minimal degree of
    effort:
Potvin
, at p. 551
.
The second was where the manner of
    obtaining the evidence was not unfair but its admission against the accused
    would be.

[30]

The
    trial judge quoted at length from the reasons of Wilson J., including the
    following important conclusion regarding the residual discretion of the trial
    judge, at p. 553:

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 should be the focus of the trial judges concern.
    [Citation omitted.]

[31]

The
    trial judge noted that besides the due diligence/minimal degree of effort problem
    created by the failure of the police to subpoena Mr. Yii before he left the
    country in September, the appellants took the position that Mr. Yii was one of
    the attackers and had a motive to lie. According to the testimony he provided
    under cross-examination at the preliminary hearing, Mr. Yii was told by the
    detectives when he gave his original statement that he would not be charged if
    he was not one of the attackers; he therefore had a motive to exculpate himself
    in his testimony.

[32]

The
    trial judge then discussed other relevant case law before coming to what he
    characterized as the key point in the case, which was that on November 4,
    2004, Mr. Yii said he was willing to return to testify and no effort was made
    to use the witnesss mother to help contact him further to follow up on that
    offer. This showed a lack of due diligence by the Crown in attempting to obtain
    the evidence of Mr. Yii. Given the appellants position on Mr. Yiis role in
    the attack and his motive to lie, the trial judge stated: I am compelled to
    exercise my discretion not to admit the preliminary evidence of Richard Yii as
    it would render the trial unfair.

(3)

Steps Taken After the
    First Ruling

[33]

Following
    this ruling, the police contacted the witnesss mother and through her, Mr.
    Yii, who by then was in Malaysia. After a number of discussions with the police,
    which included an offer to pay for his ticket to return, and at least one
    conversation with his mother, Mr. Yii advised that he would not return to
    Canada to testify. The Crown then sought to reopen the s. 715(1) motion on the
    basis that there had now been a material change in circumstances, in that it
    was now established that the witness was out of Canada
and
would not be
    returning to testify.

[34]

The
    appellants objected to reopening the motion on the basis that the Crown in
    effect used the first motion to find out the gaps in its evidentiary record,
    then filled those gaps and sought to redo the motion. The appellants objected
    that even if there was a material change in circumstances, the Crowns
    procedure compromised the fairness of the process. The trial judge rejected
    this submission and ruled that the motion could be resubmitted.

[35]

The
    trial judge proceeded to hear further evidence from the officers, evidence from
    the witnesss mother, and submissions from the Crown and defence.  The trial
    judge ultimately ruled that the Crown had now exercised due diligence, and that
    the evidence could be read in.

[36]

In
    her submissions, trial counsel for Mr. Lau argued that, in light of
R. v.
    Starr,
2000 SCC 40, [2000] 2 S.C.R. 144,

s. 715(1) should be
    regarded as incorporating the principled exception to the hearsay rule so that
    before a decision is made to read in preliminary inquiry testimony, the court
    should conduct the same necessity/reliability analysis as would be required if
    the same evidence were sought to be admitted under that rule. Counsel then referred
    to the decisions of
R. v. Orpin
(2002),
    165 C.C.C. (3d) 56 (Ont. C.A.),
and
R v. OConnor
(2002)
, 62 O.R. (3d) 263 (C.A.), where
    this court held, following
R. v. Finta
(1992)
, 73 C.C.C. (3d) 65 (Ont. C.A.), affd on other
    grounds, [1994] 1 S.C.R. 701, that necessity could be established only where
    admitting the hearsay would be the only way the evidence could be heard. In
    both cases, the court instructed that trial judges must consider other methods
    of obtaining the evidence where a witness is out of the country, such as by commissioned
    evidence or by teleconference.

(4)

The Second Ruling

[37]

The
    trial judge again gave full and extensive reasons for his second ruling where
    he reversed his earlier decision and ordered that the preliminary inquiry
    evidence of Mr. Yii could be read in. In respect of the proper interpretation
    of s. 715(1) in the context of the principled approach to the hearsay rule, he
    concluded:

It
    appears, therefore, that section 715 was drafted by [P]arliament to address
    necessity and reliability in a balanced manner, including, per
Potvin
,
    its application in the case of a witness who is absent from Canada, as long as
    the prosecution has exercised due diligence and/or at least a minimum degree of
    effort, as discussed in my ruling of December 2, 2004.

It
    follows, therefore, that in my view neither statutory interpretation nor the
    exercise of residual discretion under section 715 should serve to import into
    section 715 different standards of necessity or reliability which may be
    relevant to the principled approach in other contexts.

[38]

In
    considering the applicability of the
Orpin
and
OConnor
cases
    on the issue of necessity, the trial judge held that they did not apply because
    there would be no advantage to reading in commission evidence over reading in
    the preliminary inquiry evidence. However, in so holding, the trial judge did
    not address the possibility of taking the evidence by teleconference, referred
    to in
OConnor
, at para. 57.

(5)

Law and Analysis

[39]

The
    first question raised on the appeal of this issue is whether the trial judge
    erred in deciding that he could reopen and reconsider his earlier ruling under
    s. 715(1).

[40]

I
    see no error in the trial judges decision to reconsider his earlier ruling
    based on a material change in circumstances: see
La,
at para. 28.
    Procedural and evidentiary rulings are the bread and butter of a trial judges
    work in the conduct of a trial, and such rulings are one of the areas where a
    trial judge exercises significant judicial discretion, based on the principles
    of order and fairness. In this instance, the trial judge was fully cognizant of
    the fact that the only circumstance that had changed was that it was now known
    that the witness was unwilling to travel back to Canada in a timely way, even
    if the Crown paid his fare. That was sufficient to meet the criterion in
La
.

[41]

The
    next question is whether the decision of the trial judge to change his ruling
    and to allow the preliminary hearing evidence of Mr. Yii to be read in was an
    unreasonable one or was made based on an error of law.

[42]

In
    1989, before the Supreme Court held in
Starr
that the principled
    approach to hearsay applies to all common law exceptions to the hearsay rule,
    the court delivered its seminal decision in
Potvin
on the
    constitutionality of s. 715(1) of the
Code
, and whether, properly
    interpreted, the section allows the trial judge a residual discretion not to
    allow the previous testimony to be entered at the trial even if it meets the
    criteria of the section.

[43]

The
    court held that s. 715(1) does not breach the accuseds fair trial rights
    provided for by ss. 7 and 11(d) of the
Charter
. Essentially, as long
    as the accused had the opportunity to cross-examine the witness at the previous
    hearing, that satisfies the extent of an accuseds right to test the evidence.
    The court further held that the word may in the section gives the court a
    residual discretion to refuse to allow the previous testimony of an unavailable
    witness to be read in where its admission would operate unfairly to the
    accused:
Potvin
, at p. 548.

[44]

Wilson
    J. identified two types of unfairness that the court could consider: the first
    was unfairness in the way the evidence was obtained. It is clear that here
    Wilson J. was including the way the authorities attempted but failed to obtain
    the evidence for trial. The first example she offered is where a witness is
    temporarily out of the country and the Crown could have obtained the witnesss
    attendance with a minimal degree of effort:
Potvin
, at p. 551. A second
    example is where the Crown knew when the witness first testified that he or she
    would not be available at the trial, but failed to inform the accused so that
    counsel could have conducted the cross-examination with that in mind.

[45]

The
    second type of unfairness arises from the effect that the admission of the
    previously taken evidence may have on the fairness of the trial itself. This is
    the traditional discretion granted to trial judges to exclude evidence where
    the prejudicial effect of the evidence exceeds its probative value:
Potvin
,
    at p. 552.

[46]

Functionally,
    the trial judge first determines whether the section applies, then if it
prima
    facie
applies, there is discretion to nevertheless exclude the evidence,
    based on the two kinds of unfairness to the accused, unfairness in obtaining
    the evidence and unfairness in admitting the evidence. But that discretion
    should be exercised only after weighing the two concerns of fair treatment of
    the accused and societys interest in getting at the truth at a trial:
Potvin,
at p. 553
.
The court rejected the suggestion that another kind of
    unfairness to the accused exists where the evidence sought to be admitted is
    crucial to the Crowns case, which it was in
Potvin
.
[1]

[47]

Finally
    the court also discussed the warning to the jury that must be given if the
    evidence is admitted. I will discuss that issue later in these reasons.

[48]

Being
    pre-
Starr
, the question of whether the pre-conditions for admission under
    s. 715(1) ought to accord with the necessity/reliability requirement of the
    principled approach for the admission of hearsay evidence was not an issue
    addressed by the court in
Potvin
.

[49]

The
    trial judge in this case appeared to be of the view that the necessity and
    reliability factors contained in s. 715(1) as well as the trial judges residual
    discretion under that section to exclude are not to be informed by the principled
    approach to hearsay articulated by the Supreme Court in
Starr
, and later
    modified in
R. v.
Khelowan
,
    2006 SCC 57, [2006] 2 S.C.R. 787
. As a result, in exercising his
    discretion, the trial judge failed to consider whether the minimal efforts
    required of the Crown to obtain the evidence of the missing witness included
    taking his evidence by teleconference or by videoconference.

[50]

The
    fact that s. 715(1) is a statutory exception to the hearsay exclusionary rule
    does not mean that the principled approach can have no role in interpreting and
    applying it.

[51]

In
R. v. Wilcox
,
2001
    NSCA 45, 192 N.S.R. (2d) 159, a related question arose regarding the
    interpretation and application of s. 30 of the
Canada Evidence Act
,

R.S.C. 1985, c. C-5
, which allows for the admission of
    hearsay evidence that is created in the ordinary course of business. Rather
    than deciding to admit the evidence pursuant to the statutory provision,
    Cromwell J.A. applied the principled approach. He chose to do so for two
    reasons. First, he found, at para. 58, that the words of the statute were open
    to more than one reasonable application to the facts, and so it would be
    preferable to determine admissibility in light of the principles underlying the
    hearsay rule. Second, and of greater significance to this case, he stated the
    following, at para. 58:

It would take very clear words in the statute to authorize the
    admission of hearsay evidence that is not necessary and reliable.

[52]

In
OConnor
, although the appellant conceded necessity because the witness
    was in the United States, applying the principled approach, the court imposed
    the strict test for necessity that was
articulated in 1992
    in
Finta
and excluded the evidence
.
    OConnor A.C.J.O. stated at para. 57:

Despite the appellants concession, I have serious reservations
    whether Grodems statement meets the necessity requirement for the admission of
    hearsay statements. It is not sufficient for the Crown to simply show that a
    witness is not compellable because he or she is out of the jurisdiction to
    satisfy the necessity requirement. Efforts should be made to pursue other
    options (teleconferencing or taking commission evidence are two) before one
    reaches the conclusion that admitting evidence by way of hearsay statement is
    necessary. Necessity cannot be equated with the unavailability of a witness. Rather,
    it must be shown that hearsay is the only available means of putting the
    evidence before the court:
R. v. Finta
(1992), 73 C.C.C. (3d) 65, 92
    D.L.R. (4
th
) 1 (Ont. C.A.) at p. 199 C.C.C.;
R. v. Orpin
(2002), 165 C.C.C. (3d) 56 (Ont. C.A.) at pp. 68-73.

[53]

It
    is not necessary to decide in this case whether the
Finta
standard for
    necessity ought to be read into s. 715(1)(d). However, consistent with the view
    expressed in
Wilcox
, the considerations that inform the application of
    the principled approach in cases like
OConnor
and specifically, the
    attention given to technological means of taking evidence in that case

may
    also inform the exercise of the discretion under s. 715(1).

[54]

In
    this case, related and contiguous provisions of the
Code
may also guide
    our understanding of Parliaments intention in respect of the proper
    interpretation of s. 715(1)(d). The use of audio technology for witnesses who
    are outside Canada, referred to in
OConnor
, is specifically authorized
    by s. 714.4 of the
Code
, while the use of video conference technology
    for such witnesses is provided in s. 714.2.

[55]

These
    sections were added to the
Code
in 1999 and provide:

714.2 (1)  A court shall receive evidence given by a witness
    outside Canada by means of technology that permits the witness to testify in
    the virtual presence of the parties and the court unless one of the parties
    satisfies the court that the reception of such testimony would be contrary to
    the principles of fundamental justice.

(2) A party who wishes to call a witness to give evidence under
    subsection (1) shall give notice to the court before which the evidence is to
    be given and the other parties of their intention to do so not less than ten
    days before the witness is scheduled to testify.

714.4   The court may receive evidence given by a witness
    outside Canada by means of technology that permits the parties and the court in
    Canada to hear and examine the witness, if the court is of the opinion that it
    would be appropriate, considering all the circumstances including

(
a
)     the
    nature of the witness anticipated evidence; and

(
b)
any
    potential prejudice to either of the parties caused by the fact that the
    witness would not be seen by them.

[56]

It
    seems to me that when s. 715(1)(d) is read together with ss. 714.2 and 714.4, it
    is incumbent on a trial judge to include, as a consideration before making the
    order, the possibility of taking the evidence in a live manner via audio or
    video technology.

[57]

It
    appears that when he distinguished the
Orpin
and
OConnor
cases, the trial judge considered only the possibility of taking commission
    evidence and obtaining a transcript which would also have to be read into
    evidence. He rejected that option because the available hearsay was a
    transcript of previous testimony under oath where there had been
    cross-examination. However, the trial judge ignored the possibility of taking
    Mr. Yiis evidence live before the jury by way of telephone or video link from
    Singapore or Malaysia.

[58]

This
    was all the more important because the evidence, which was referred to in
    detail by the trial judge, suggested that Mr. Yii may well have co-operated in
    giving his evidence electronically. Mr. Yii asked the officer on the phone if
    there was some other way that his evidence could be heard.  I quote the
    following relevant portion from the ruling:

Detective Thompson testified that on December 7th he received
    Mr. Yiis telephone number from Detective Charlebois and he called Mr. Yii the
    same day. He stated that he recognized Mr. Yiis voice and he told Mr. Yii
    that his testimony was needed at the trial and that the Crown would fly him
    back to Canada on December 10, 11, January 2 or January 3. The officer stated
    that Mr. Yii replied that he was busy on December 10 and 11 but January 2 or 3
    would be okay.

Mr. Yii then asked what would happen if he didnt return, and
    the officer told him three things might happen: 1) The court would continue
    hearing evidence without Mr. Yii; 2) The trial would be adjourned pending
    Mr. Yiis return to testify; 3) A material witness warrant could be issued for
    Mr. Yii.

The officer stated that Mr. Yii then asked if there was some
    other way his evidence could be heard, and the officer replied that the best
    evidence was from Mr. Yiis own mouth and in person. At that point the officer
    indicated that Mr. Yii said he would like to telephone his mother before
    deciding. The officer acceded to that request. The officer called Mr. Yii back
    later that day and asked for his decision. Mr. Yii stated, I am not coming. I
    dont want to come. The officer said he would pass Mr. Yiis answers on to the
    Crown attorney and ended the call.

[59]

In
    this case, the Crown failed to take minimal efforts to get the witnesss
    evidence before the court through teleconference or videoconference, a factor
    that the trial judge did not weigh when exercising his residual discretion
    under s. 715(1).

[60]

It
    appears that on the facts of this case, the trial judges discretionary
    consideration of the minimal efforts that must be taken by the Crown under s.
    715(1) overlapped with the necessity analysis of the principled approach. If
    the Crown does not use sufficient effort to try to get the witness to testify
    before the jury where the witness may have done so, the court is more likely to
    find that although he was not in Canada, it was not necessary to read in his
    preliminary inquiry evidence.

[61]

In
    his original ruling, the trial judge rejected the Crowns request based on the
    Crowns failure to take the minimal effort required to subpoena Mr. Yii, but
    also because it had not been finally determined that he would not in fact
    return to Canada to testify. Essentially, the Crown had not made the minimal
    effort, nor met the statutory requirement that the witness was necessarily going
    to be outside of Canada at the time when he was required to testify. The only
    thing that changed from the trial judges original ruling was the declared
    unwillingness of the witness to return to Canada. That was only a relevant
    change if it meant that the statutory and minimal efforts requirements were now
    both met. However, because of the failure to pursue the electronic options of
    teleconference or videoconference, those criteria, as informed by the
    principled approach, were still not met. As a result, there was no basis for
    the trial judge to change his original ruling.

(6)

Conclusion on the s. 715(1)
    issue

[62]

As
    the Yii evidence was crucial evidence for the Crown at this trial, this is not
    a case to apply the proviso under s. 686(1)(b)(iii) of the
Code
. On
    the basis of this error alone, I would set aside the convictions and order a
    new trial.

Issue 3:
    Was the caution to the jury regarding Mr. Yiis evidence misleading and
    insufficient?

[63]

Once the trial judge ruled that the
    Crown could read into evidence the transcript of Mr. Yiis preliminary inquiry
    testimony, extensive submissions were made regarding the content of the caution
    to be given to the jury. Counsel for Mr. Lau wanted the trial judge to explain
    to the jury that cross-examination at a preliminary hearing is different than
    at the trial and, in particular, that there is no attack on the credibility of
    the witness as that is not an issue in that forum. The trial judge declined to
    so charge the jury. He composed a caution which he gave mid-trial, both before
    and after the testimony was read, and as part of his charge. When he gave the
    caution in the charge, he added that the evidence could only be read in where
    there had been a full opportunity at the preliminary hearing for the appellants
    to cross-examine Mr. Yii, and that there was such a full opportunity.

[64]

On this appeal the
    appellant Lau submits that the original caution was not sufficient and that the
    addition in the charge amounted to an error of law. I will deal with this issue
    and the remaining two only briefly, as I have already determined that a new
    trial should be ordered and that the transcript of Mr. Yiis evidence should
    not have been read to the jury.

[65]

In
Potvin
, at
    pp. 541-46, Wilson J. discussed the differences between the purpose of
    cross-examination at a preliminary hearing and at a trial, as well as the
    legitimate tactical decisions made by defence counsel not to disclose their
    cross-examination strategy to a witness early in the proceedings. She referred
    to Martin J.A.s reasons in
R. v. Davidson
(1988), 42 C.C.C. (3d) 289 (Ont.
    C.A.), leave to appeal to S.C.C. refused, [1989] S.C.C.A. No. 127, on the
    subject. This discussion was in the context of considering the
    constitutionality of s. 715(1) of the
Code
, and whether the failure of
    defence counsel to legitimately refrain from a full cross-examination at the
    preliminary inquiry means reading in that evidence when the witness becomes
    unavailable deprives the accused of a fair trial. The court concluded,
    referring to
Davidson
, at pp. 298-99, that as long as the accused had a
    full opportunity to cross-examine, his or her fair trial rights were not
    impaired, even though the limited cross-examination could operate to the
    detriment of the accused:
Potvin
, at p. 545-46.

[66]

On the issue of the
    caution to the jury, Wilson J. stated, at p. 555, that in such cases the jury
    should be reminded that they have not had the benefit of observing the witness
    testify, but that failure to give that warning would not constitute reversible
    error in every case. She did not address whether an explanation of the
    differences in the purposes of cross-examination at the two hearings should
    form part of the caution in every case.

[67]

A trial judge has
    discretion as to the extent of the caution that is given in any particular
    case.
This
    point arises most commonly with
Vetrovec
cautions (see for example
Potvin
,
    at p. 557), but also applies to other types of cautions: see for example
R.
    v. Kerr,
[1996] O.J. No. 3771 (C.A.), at para. 14 ("[a] trial judge
    has a discretion whether to give a warning or caution [with respect to the
    alleged frailties of a witness's evidence] and this court has repeatedly
    expressed its reluctance to interfere with the trial judge's assessment of the
    necessity to give such a caution"); and
R. v. B. (A.)
(1997), 33
    O.R. (3d) 321 (C.A.), leave to appeal to S.C.C. refused, [1997] S.C.C.A. No.
    461, at p. 328 ("the law is clear that the decision to caution the jury
    [with respect to the age of the charges against the accused in a sexual
    offences case] is discretionary on the part of the trial judge").

[68]

Here the trial
    judge told the jury that the issues at a preliminary hearing are different than
    at trial, including the issue of credibility, and that credibility is only
    determined by the jury at the trial. It would have been very helpful for him to
    go on to explain to the jury that there are tactical reasons why defence
    counsel may not attack the credibility of a witness at a preliminary hearing,
    and therefore that the cross-examination that was conducted may not have been
    as extensive as it would have been had the witness testified at the trial. As
    this is a discretionary matter, the failure to do so did not constitute
    reversible error.

[69]

However, the trial
    judge did err when he went on to tell the jury in the charge that it was a
    condition precedent to the admission of the evidence that there had to have
    been a full opportunity to cross-examine Ritchie Yii at the preliminary hearing
    and that counsel for the appellants had had such a full opportunity. As
    counsel submits, although this statement is technically true, without a further
    explanation, the jury would not understand that a full opportunity does not
    mean that there was in fact a full cross-examination, and that there are
    tactical reasons why defence counsel might not conduct a full cross-examination
    at that stage of the proceedings.

[70]

Although a full
    opportunity to cross-examine is a condition precedent to admission of previous
    testimony under s. 715(1), and therefore a legal requirement that is ruled on
    by the trial judge, such rulings are not normally communicated to the jury. The
    jury has a separate job to do and could get confused by the fact that the trial
    judge has made a ruling on admissibility.

[71]

In this case,
    where the trial judge failed to explain the difference between having a full opportunity
    to cross-examine and conducting a full cross-examination, including on issues
    of credibility, the jury may well have believed that the latter in fact
    occurred and that may have influenced their decision regarding accepting Mr.
    Yiis critical evidence.

Issue 4: Did the trial judge err by
    discharging the eleventh juror?

[72]

The
    trial commenced on November 8, 2004 and continued into December, when it became
    apparent that they would have to break for Christmas holidays and resume in
    early January 2005. In December, one of the jurors learned that he was admitted
    to a law school program commencing in January 2005, and the trial judge decided
    to excuse him. They were therefore down to 11 jurors.

[73]

When
    the trial resumed on Tuesday, January 4, 2005, one of the jurors was not able
    to come in as he had the flu. However, he indicated that he thought he would be
    better by the next day. Another juror had a funeral to attend the next day, and
    consequently the trial would not be proceeding until the afternoon on the
    Wednesday. Finally, another juror had earlier advised the court that he was an
    Orthodox Jew and would not be able to deliberate past 3 p.m. on a Friday or all
    day on a Saturday.

[74]

The
    trial judge was concerned that they proceed with the closing addresses on Tuesday,
    January 4 so that he could give his charge Wednesday afternoon, leaving the
    jury with enough time to deliberate and hopefully reach their verdict before 3
    p.m. on Friday. As a result, he did not want to waste Tuesday, January 4 by
    waiting for the ill juror. He decided, over the objection of counsel for Mr.
    Li, to discharge the ill juror.

[75]

Section
    644(1) of the
Code
allows the discharge of a juror who is ill. The
    section provides:

644.
    (1) Where in the course of a trial the judge is satisfied that a juror should
    not, by reason of illness or other reasonable cause, continue to act, the judge
    may discharge the juror.

[76]

Subsection
    (2) provides that as long as ten jurors remain, the trial may continue to
    verdict.

[77]

The
    decision whether to discharge a juror who is ill once the trial has commenced,
    as long as ten jurors remain, or to adjourn the trial and wait for the juror to
    get better is a matter for the discretion of the trial judge. The Supreme Court
    of Canada has stated as a general principle that an accused person should not
    be lightly deprived of the right to be tried by a jury of 12, and that the
    accuseds counsel should have an opportunity to make submissions on the
    question of discharge: see
R. v. Chambers
, [1990] 2 S.C.R. 1293, at pp.
    1304-06, following
R. v. Basarabas
, [1982] 2 S.C.R. 730. Nevertheless,
    the
Code
clearly allows the trial judge to excuse an ill juror in order
    to allow the trial to proceed.

[78]

In
    this case, the trial judge considered the position of Mr. Laus counsel, who
    did not object, as well as Mr. Lis counsel who did object to the discharge of
    the eleventh juror. He made his decision based on the exigencies of timing that
    arose following the Christmas break, and his view that optimally the case would
    conclude by Friday afternoon with a verdict. Although the judge could have
    waited until the next day to see if the ill juror returned, especially because
    he was the eleventh juror and his discharge would leave no more room for
    contingencies, he was not obliged to do so. I would not give effect to this
    ground of appeal.

Issues # 5 and # 6: Did the trial judge err by giving the jury three
    selected portions of the charge in writing several hours into the deliberations,
    including the six routes by which each of the appellants could be a party to
    the offence?

[79]

As
    part of the charge, the trial judge explained three routes by which both
    accused could be found to be a party to the offence charged, two further routes
    by which only Mr. Li could be a party, and one route by which only Mr. Lau
    could be a party. He also charged on the common purpose doctrine and, in that
    context, on how statements allegedly made by Mr. Li and by some non-parties could
    be used against Mr. Lau.

[80]

Following
    the charge, the trial judge decided to provide written versions of these
    portions of the charge to the jury. In respect of the six routes to party
    liability, he stated that that portion was quite complicated and that he did
    not know how they could possibly have kept that in their head. There was
    objection by counsel to the trial judges proposal and to the content of what
    was provided. Eventually counsel worked with the trial judge to make some
    modifications to the oral charge, which were included in what was given to the
    jury. These discussions delayed the delivery of the three written portions to
    the jury for several hours into the deliberations. At no point did the jury ask
    for any clarification.

[81]

On
    the appeal, the appellant Lau objects to the charge on the six routes to party
    liability. Those six routes were: 1) actual participation (s. 21(1)(a)); 2)
    aiding (s. 21(1)(b)); 3) abetting (s. 21(1)(c)); 4) common intention (s.
    21(2)); 5) counselling (s. 22(1)); 6) counselling additional offences that were
    known or ought to have been known (s. 22(2)). He submits that although
    technically each route was legally potentially available, the charge was overly
    complicated, and that the trial judge should have taken a more functional
    approach as is the case when charging on self-defence: see
R. v. Pintar
(1996), 30 O.R. (3d) 483 (C.A.), at p. 493.

[82]

The
    complication was particularly distracting when the real issue in the case and
    the theory of the Crown from his closing address was whether the two accused
    actually participated in the assault on Mr. Law and whether the appellant Lau
    used a lead pipe. Counsel objected to this portion of the charge, in particular
    because it might have left the jury with the impression that mere presence at
    the attack was sufficient for party liability. Counsel also objected to giving
    that portion of the charge to the jury in writing.

[83]

On
    the appeal, the appellant Li objects to the trial judge giving all three of the
    written instructions to the jury several hours into their deliberations. He
    also objects to the fact that this was done without including the instruction
    on the presumption of innocence and reasonable doubt. He submits that this
    compromised the fairness of the trial.

[84]

In
R. v. Poitras
(2002), 57 O.R. (3d) 538, Doherty J.A. approved the
    possibility of providing some portions of the instructions to the jury in writing
    in order to assist them with complicated legal instructions. However, when only
    part or parts of the oral charge are given to the jury in writing, it is
    essential that those parts be complete, that they be accurate, and that they be
    fair and balanced. The trial judge should also include the charges on the
    presumption of innocence and on reasonable doubt which are fundamental legal
    principles applicable in every case.

[85]

In
    my view, the trial judge erred in this case by giving the jury the three
    portions of the charge in writing, both in the manner and timing of their
    delivery to the jury and in their content in the circumstances of this case.
    From the record it appears that one copy of the written portions of the
    instructions, labelled A, B and C, was sent into the jury room several
    hours into the deliberations.
[2]
There had been no question from the jury or request for clarification. Nor was
    the delivery accompanied by any explanation, although the trial judge had
    mentioned in his charge that he would likely be giving the jury parts of the
    charge in writing.

[86]

Once
    the jury was well into their deliberations, one cannot know what issues they
    had already covered or decisions they had already reached. By sending in only
    some written instructions at that point, it is likely that the effect would be
    to put emphasis on them. Here the content of the instructions was the routes to
    party liability as well as methods by which the jury could use the statements
    of the co-accused or others as part of the evidence to substantiate that
    liability. Importantly, these instructions were not balanced by the instruction
    on the presumption of innocence. And, although there are a number of references
    to proof beyond a reasonable doubt contained within them, those references do
    not emphasize the need for the Crown to prove guilt beyond a reasonable doubt
    as an overarching principle. Including written instructions on both these
    points would have acted as a necessary balance to the portions that were in
    fact provided which, when read in isolation, can be viewed as highlighting the
    Crown perspective.

[87]

Finally,
    Crown counsel on the appeal has properly pointed out that there is a legally
    important omission in written portion B of what was delivered to the jury.
    That portion, which is headed: Admissibility of Statements Made by Non-Accused
    Persons, discusses the two-step procedure for when a statement can be used against
    an accused where there is a common unlawful purpose. Under the second step of
    the procedure, where the jury determines if the accused was probably a member
    of the common purpose group, the instruction omits the fact that only evidence
    directly admissible against the particular accused can be considered at that
    stage.

[88]

Crown
    counsel submits that the error was not significant and that the proviso can
    apply. Counsel points out that the same error was not made in the oral
    instruction and that because of when the various statements were made, it is
    unlikely the jury used the evidence improperly. Also, written instruction B
    refers back to written instruction A, which dealt with the use of the
    statements of co-accused, and where the second step was accurately stated.

[89]

I
    thank Crown counsel for pointing out this error. In my view, it is not one that
    can be cured by the proviso. The inaccuracy in the written instructions could
    not help but add to the complication of these particularly legally difficult
    portions of the charge and could very likely have caused confusion. There can
    be no comfort taken from the fact that instructions A and B differed. If
    the jury did notice the difference, they would not know which was correct.

[90]

When
    the foregoing is taken together with the failure to provide in writing the
    fundamental instructions on the presumption of innocence and reasonable doubt,
    the timing of providing these materials to the jury, and the overall
    complication of what was provided, in my view the result of this procedure was
    to cause an unfairness in the trial.

CONCLUSION

[91]

Based
    on the error in admitting the evidence of Mr. Yii under s. 715(1)(d) of the
Code
,
    the error in the caution to the jury regarding that evidence, as well as the
    error in providing the partial written instructions to the jury, I would allow
    the appeal, set aside the convictions, and order a new trial.

Signed:        K. Feldman J.A.

I agree D.OConnor
    A.C.J.O.

I agree Robert J. Sharpe
    J.A.

RELEASED:  D.OC. May 7, 2012

APPENDIX A

When

Statements

Made

by

Accused

Person

are

Admissible

Against

a Co-Accused

Generally,

anything

a

charged

person

says

to

a

witness

i
s

only

evidence

against

the person

who

allegedly

said

it.

On
e

excep
t
ion

to

this

rule

is

if

the

statement

was

made

in

the

presence

of

another

accused person

who

appar
e
ntly

acted

upon

i
t.

A

second

exception

to

th
i
s

rule

is
when

two

or

more

persons

are

acting

together

with

a common

unlawful

purpose

and

the

words

alleged

were

spoken

to

further the

unlawful common

purpose.

To

determine

whether

or

not

the

exception

applies,

the

law

has

established

a

separate

two step

procedure

within

the

trial.

Bef
ore

commencing

the

two

step

procedure,

however,

it

should

be

noted

that

all

of

the alleged

statements

by

Mr.

Li

were

reported

only

by

Mr.

Yi
i
.
and,

accordingly,

an assessment

of Mr.

Yii's

credibility

and

rel
i
ab
i
lity,

generally

and

in

relation

to

each

of these
s
tatemen
t
s

specific
a
lly,

within

the

context

of

all

of

the

evi
d
ence, would

be a

logical
·
initial

step

because

there

i
s

no

point

in

going

through

the

2 step

procedure

with

respect

to
eviden
c
e

that

you

might

later
    find not to be credible and reliable.

If you proceed

to

the

two

step

procedure,

the

firs
t

step

is

to

determine

whether

or

not, based

on

all

of

the

evidence

you

find

to

be credible and

reliable,

including

th
e alleged

statements

by

Mr. Li,
if

you

find

as

a
fact

that

some

or
    all

of

those

alleged

statements were

m
ade,

the

Crown

has

proven,

beyond

a

reasonable

doubt

that

Mr.

Li

and

and

at

l
e
ast
one

other

pe
r
so
n
·

had

a

common

unlawful

purpose

at

the

time

t
h
e

statements

were

made. Examples

of

a

possible

common

unlawful

purpose in

this

case

would

b
e

to

assault

or threaten

bodily

harm

to

Mr.

Law.

In order

to

determine

this

first

qu
e
s
t
io
n
,

i.
e
.

whether

or

not

a

common

unlawful

purpose existed,

you

should

consider

all

of

t
h
e

evidence

you

consider

to

be

credible,

including

the alleged

statements made

by

Mr.

Li,

if

you

find

as

a fact

that

some

or

all

of

those
statements

were

made.

If based

on

all

of

the

evidence,

you

have

a

reasonable

doubt
whether

or

not
    at

least

one

other

person,

including

any

of

the

various

parties

who

have been

mentioned

in

the

evidence

such

as Mr
.
Lau,

Mr
.
Chu,

Mr.

Y
oon,

Mr.

Yii,

Chi

Lam Chu,

Derek

Law,

S.
E.,

and

others,

had

a

common

unlawful

purpose

with

Mr. Li,

then

you

must

not

consider

Mr.

Li's

statements

as

evidence

against Mr.

Lau.

On

the other

hand,

if

you

conclude,

beyond

a

reasonable

doubt,

that

Mr. Li

did

h
a
ve

an

unlawful
    common

purpose

with

at

least

one

other

p
erson,

then

you

should

proceed

to

the

second
    step of the

procedure.

The

second

step,

w
h
i
ch

can

only

be

reached

by

passing

through

the

first

step,

i
s

to
determin
e

whether or

not

the

Crown

has

proven,

based

only

on

the

evidence

you

find credible

and

reliable

describing

Mr.

Lau's

conduct,

including

his

conduct

subsequent

to any

statements

made

in

his

presence,

and

the

alleged

statement

by

Mr.

Lau

to

Mr.

Law,
.
that

Mr.

Lau

was

probably

part

of

the

group

that

had

the

common

unlawful

purpose.

If you

conclude

that

M
r
.

Lau

was

probably

a

member

of

the

group

with

the

unlawful
    common

purpose

then

you

may

consider

any

statements

alleged

to

be

made

by

Mr.

Li,
    that you

find

credible

and

reliable,

while

Mr.

Lau

was

probably

part

of

the

group,

as evidence

against

M
r
.

La
u
.

On

the

other

hand,

if

you

do

not

conclude,

based

on

Mr.

Lau's
    alleged

conduct

and

alleged

statement,

that

Mr.

Lau

was

probably

part

of

the

group

with the

unlawful

common

purpose

then

you

may

not

consider

M
r
.

Li's

statements,

other

than
    those

made

in

Mr.

Lau's

presence,

as

evidence

against

Mr.

Lau.

In this case,

there

is

no

evidence

indicating

that

Mr.

Lau

had

any

involvement

in

this
    matter

prior

to

him

allegedly

being

at

President

Snookers.

Accordingly,

even

if

the Crown

could

prove

that

M
r
.

Li

was

part

of

a

common

unlawful

purpose

with

someone else

prior to

going

to

President

Snooker,

the

alleged

statement

by

Mr.

Li

to

Mr.

Yii,
    which

Mr.

Yii

alleges

was

made

over

the

telephone

prior

to

going

to President

Snookers, could

not

be

admissible

against

Mr.

Lau

because

there

is

no

evidence,

in

relation

to

th
e
second

step

of

the

procedure,

indicating

that

Mr.

Lau

was

probably

a

part

of

such

an unlawful

common

purpose

prior

to
    Mr.

Li being

at

President

Snookers.

Accordingly,

the

first

alleged

statement

made

by

M
r
.

Li to Mr. Yii,

that

"we

were

going
to

look

for

Billy''

o
r h
e

wanted

to

go

hunting
Bi
lly i
s

only

admissible

against Mr.

L
i
.

O
n
the

other hand, the other statements alleged
    to have been made by Mr.

L
i
.
.
outsid
e
.

the presence

of Mr.

Lau

are

potentially

admissible

against Mr. Lau,

subject

to

the

two

step

procedure,

and

subject

to

you

finding

as

you

might or might not, that the statements were

·
·
made

i
n
furtherance of an unlawful
    purpose.

Minor

changes

have

been

made

to
    these

instructions at

the

request

of

some

counsel.

APPENDIX
    B

Admi
s
s
ibility

of

Statements

Made

by

Non-Accused

P
e
rso
n
s

There

has

been

ev
i
d
en
c
e

of

a

statement

made

by

Guppy

at

President

Snookers

and

of

a statement

made

by

Ken

Chu

outside

Virtual

Domain

to

Richard

Y
oo
n
.

The

same

rules

in

relation

to

statements

made

by

a

co-accused

person,

apply

with

respect
    to

statements

made

by

no
n
-
accused

persons.

Such

statements

are

not

admissible

agai
n
s
t

an

accused

person

unless

the

statement

w
a
s
made

in

the

presence

of

the

accused

who

acted

upon
    it

or

if

the

speaker

was

a

member

of a

group

of

two

or

more

persons

with

a

common

unlawful

purpose,

to

which

the

accused
also

belonged,

and

the

statement

was

made

in

furtherance

of

the

common

unlawful
purpose.

A two step

procedure,

similar

to

the

procedure

in

relation

to

statements

made

by

a

coaccused,

is

used

to

d
etermine

whether

or

not

the

second

kind

of

statement

by

a

non
accused

person

is

admissi
b
l
e

against

an

accused.

First
the

Crown

must prove,

beyond

a

reasonable

doubt,

based

on

all

of

the

evidence

that you

find

to

be

credible

and

reliable,

including

the

statement,

if

you

find

it

credible

and

reliable,

that

a

common

unlawful

common

purpose to
which

the

speaker

belonged,

with
at

least one

other

person,

existed.

Second,

if

the

first

step

is

satisfied

beyond

a

reasonable doubt,

the

Crown

must also

prove

that

the

accused

was

probably

part

of the

group

with the

common unlawful purpose

at

the

time

the

statement was made. If b
oth

steps

are
proved,

then,

if

you

find

that

the

statement

was

made in furtherance

of

t
h
e

unlawful
common

purpose, the

statement

allegedly

made

by

the

non-accused

person

is

admissi
b
l
e against

the

accused.
-

This

analysis

must

be

carried

out

separately

in

relation

to

each

accused

perso
n
.

Once

again,

the

initi
a
l
issue

to

be

considered

should

be

whether

or

not

Mr.

Yii's

evidence
in this
regard

is

credible

and

reliable.

Similarly,

Mr.

Yoon
    alleges

that

outside

Virtual

Domain

Mr.

Chu

said

to him

words
    to the

effect

that:

"some

people

are

going

t
o
drag

Billy
outside

to be

beaten".

Given

that Mr. Yoon

indicated that

this

was

said

to

him

privately

by

Mr.

Chu,

however,

only

the

two
stage

process

exception

need

be

considered,

because

there

is

no

evidence

that

Mr.

Lau

or
    Mr. Li

heard

this

alleged

statement.

·

Once

again,

the

procedure

is

only

useful

if

you

first

find

that

Mr.

Yoon's

evidence

in this regard

is

considered

cre
d
i
b
le

and

reliable.

This,

of

course,

is

en
t
i
r
ely

up

to

yo
u
.

M
i
nor

changes

have

b
e
en

made

to

this

instruction
at

the

request

of

some

counsel.

APPENDIX C

Mea
n
s
of

Being

a

Party

to

an

Offence

The law

provi
d
es

a

num
b
er

of

legal

mea
n
s

by

which

one

may

find

that

more

th
an

one
person

is

guilty

of

the

same

offence.

Each

of

them

is

an

altern
a
t
ive

means.

That

is

to
say,

if

all

jurors

on

a

jury

are

satisfied

that

any

one

(or

more)

of

the

means

has

been
    proven

beyond

a

reasonable

doubt

in

relation

to

a

particular

accused

person,

then

the
essential

element

of

being

a

party

to

the

offence

has

been

prove
n
.

In

this

ca
s
e

there

are 6

such

means

of being

a

party

to

the

offence

to

conside
r
.

1.
First,

everyone is

a

party to

a

criminal offence
    who

actually

commits it. As discussed,

S.E.

was

a party to

an aggravated

assault upon

Mr.

Law because he
assaulted

Mr. Law

in

circumstances
th
a
t

he

knew

or
a

reasonable person

would

i
n
e
v
itably

know

that

there

was a
r
e
asona
ble

risk

of

b
o
dily

harm
resulting

to

Mr.

Law.

If you find,

beyond

a

reasonable

doubt,

that

Mr.

Lau

and
I
or

Mr.

Li

assaulted

Mr. Law

in
    circumstances

knowing

or

where

a

reasonable

p
e
rson

would

inevitably have

known

that

there

was

a

reasonable

risk

of
    bodily

harm

to

Mr.

La
w
-

then

yo
u
·.
should

find

whoever

in

relation

to

whom

you

make

that

finding,

guilty

of

count #

one.

If
    you have a reasonable

doubt

as

t
o
.
·
whether

or

not

either

man

assaulted

Mr.

Law himself; then

you

must
    g
o
·
on

to

consider

the

next

mean
s
to

be

a

part
y
.

If,

on

the other

hand

yo
u

do

not have a
    reasonable doubt that either man assaulte
d
·
M
r
.

Law himsel
f, then you must go on to consider whether,
    before or during the assault, as opposed

to

afterward,

based

on

all

the

evidence

admissible

against

that

man,

that man

knew
    or

a

reasonable

person

would

inevitably

have

realized
    in

the circumstances,

that

there

was

a

reasonable

risk

of

bodily

harm

t
o

Mr.

La
w
.

In this regard,

you

should

consider

all

of

the

evidence

against

each

accused

man.

Once

you

determine

what

evidence

you

accept

and

what

evidence

is

admissible
against

each

accuse
d
,

you

should

consider

each

accused

separately

under

this
means

of

being

a

party

to

determine

if

his

involvement

was

of

this

natur
e
.

2
.

Second,

the

law

provides

that

everyone

is

a

party

to

a

criminal

offence

who

does anything

for

the

purpose

of

aiding

(
i
.
e
.

intentionally

assisting)
any

person

to commit

i
t.

Merely

bei
n
g

present

duri
n
g

an

offence,

however,

without in
t
e
ntionally

assisting

someone

commit

it

is

not

aiding.

In this
context,

you

may

wish

to

consider

whether

or

not

the

Crown

has

proved
b
ey
o
nd

a

reasonable

doubt

that

Mr.

Lau

aided

S.E.

to

commit

an
aggravated assault.

3.

Third,

everyone

i
s

a

p
arty

to

a

criminal

offence

who

abets

(i.
e
.

intentionally

encourages

by

words

and/or

conduct)

any

person

in

committing

it.
Merely

being
present

during

an

offence,

however,

without

actually

encouraging,

by
words and/or

conduct,

any

person

in

committing

a

criminal

offence,

is

not

abetting.

In
the

context

of

this

case

you

may

wish

to

consider

whether

or

not

the

Crown

has proved

beyond

a

reasonable

doubt

that Mr. Lau
and
I
or

Mr. Li

intentionally
encouraged

S.E.

to

commit

an

aggravated

assault.

4.
Fourth,

where

two

or

more

persons

form

an

intention

in

common

to

carry

out

an
'assault'

(as

defined

earlier)

or

a

threat

of
    bodily

harm'

(as

defined

earlier),

and to

assist

each

other

therein,

and

any

one

of

them,

in

carrying

out

that

common
    purpose,

commits

an

'aggravated

assault'
(
as

defined

earlier),

each

of them who knew

or

ought

to

have

known that

the

commission

of

an

'aggravated

assault'

(as defined

earlier)

would

be

a

probable

consequence

of

carrying

out

the

common purpose
of

'assault'

or

'threat

of

bodily

harm'

is

a

party

to

the

aggravated

assault.

The analysis
    in relation to this means of being a party is similar to the two stage process
    described earlier  but it is different. It is a four stage process with the
    same onus throughout.

First, the
    Crown must satisfy you
beyond a reasonable doubt
, based on all of the
    evidence, that two or more persons had the common intention to carry out an
    assault or a threatening of bodily harm upon Billy Law in Virtual Domain.

Second the
    Crown must satisfy you, beyond a reasonable doubt, based on all of the evidence
    admissible against the accused you are considering, that the accused you are
    considering was a member of the group, which can be as small as a group of two
    people, including the accused, had such an intention.

Third, the
    Crown must satisfy you, beyond a reasonable doubt, that a member of the group
    committed an aggravated assault upon Billy Law.

Finally, the
    Crown must satisfy you, beyond a reasonable doubt,that the accused you are
    considering either knew or ought to have known that the commission of an aggravated
    assault upon Billy Law would be the probable consequence of carrying out the
    common intention of assault or threat of bodily harm.

This fourth
    requirement can be re-stated to include the definition of aggravated assault in
    the following way:

You must
    consider all of the evidence in relation to both Mr. Lau and Mr. Li if you are
    considering this means of being a party.

5.   Fifth, where a person counsels (i.e. intentionally incites or
    intentionally solicits) another person to be a party to a criminal offence and
    that other party is afterwards a party to that criminal offence, the person who
    counseled is party to
that criminal

offence,

even

if

the

criminal

offence

was

committed

in

a

way different

from

that

which

was

counselled.

This

means

of

being

a

party

has

no

possible

application

to
Mr.

Lau

as

there

is

no evidence

of

him

counselling

anyone.

On

the

other

hand,

you

may

find

that

the
Crown

has

proved

beyond

a

reasonable

doubt

that

Mr.

Li

counselled

S.E.
to

commit

an

aggravated

assault.

6.  Sixth,

everyone

who

counsels

(as

defined

earlier)

another

person

to

be

a

party

to
an

'assault'

(as

defined

ea
r
l
ier)

or

a

'threat

of
    bodily

harm'

(as

defined

earlier)

is

a
party

to

any

'aggravated

assault'

(as

defined

earlier)

that

the

other

commits in

consequence

of

the

counselling,

that

the

person

knew

or

ought

to

have

known

was likely

to

be

committed

in

consequence

of

the

counselling.

Once

again,

this

means

of

being

a

party

could

only

apply

to

Mr.

Li
if

you

find

that
the

Crown

has

proved,

beyond

a

reasonable

doubt,

that

he

counselled

S.E.
to

commit

an

assault

or

a

threat

of

bodily

harm

upon

Billy

Law

and

S.E.
    actually

committed an aggravated

assault

upon Mr. Law that

Mr.

Li knew

o
r
-
ought

to

have known
was

likely

to

be

committed
in
consequence of the counselling.

I remind you that each of these six means
    of being a party is an alternative means. The Crown must satisfy you, beyond a
    reasonable doubt, that at least one of these six means has been proved in
    relation to an accused in order for that accused to be found guilty of count #
    1. The Crown need not satisfy all of you that it has proved, beyond a
    reasonable doubt, the same means in relation to an accused. As long as the
    Crown has satisfied each of you, beyond a reasonable doubt, that it has proved
    one of these means against an accused, you must find that accused guilty of
    count # 1 if you have also been satisfied, beyond a reasonable doubt, that all
    of the other essential elements of count # 1 have been proved by the Crown.

On

the

other

hand,

if

the

Crown

has

failed

to

prove

at

least

one

of

the

six

means

beyond

a reasonable

doubt

in

relation

to

an

accused,

then

that

accused

must

be

found

not

guilty

of
count #

1.

Finally,

if

the

Crown

has

failed

to

prove

any

of the

essential

elements

of

count #

1
beyond

reasonable

doubt

in

r
e
l
ation

to

an

accused,

you

must

find

that

accused

not

guilty.

Minor

changes

have

been

made

to

these

instructions

at

the

request

of

counsel.

[1]

In
Potvin
, three people had
    planned to rob the victim. They attended her home and she ended up dead. At the
    appellants trial, the Crown sought to read in the preliminary inquiry
    testimony of one of the other assailants, who had refused to testify at the
    trial. His evidence was critical as he was an eye witness. It was the
    appellants position that the witness was in fact the murderer.

[2]
Instructions A, B and C are attached as an appendix to these reasons.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. McFarlane, 2012
    ONCA 355

DATE: 20120530

DOCKET: C49922

Doherty, Simmons and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Delroy L. McFarlane

Appellant

P. Andras Schreck and Candice Suter, for the appellant

Randolv Schwartz, for the respondent

Heard:  May 11, 2012

On appeal from the conviction entered on October 24, 2008
    by a jury presided over by Justice Robert A. Clark of the Superior Court of
    Justice.

ENDORSEMENT

[1]

The appellant was convicted of first degree murder.  Counsel, in his
    helpful submissions, advanced two related submissions.  He abandoned a third
    arising out of the instruction on first degree murder.  First, he argued that
    the trial judge should have excluded evidence that the police seized two loaded
    handguns from the appellant, neither of which was connected to the murder.
    Second, counsel submits that if the evidence was admissible, the jury should
    have been told that it could not confirm the evidence of the
Vetrovec
witness.

[2]

The Crown alleged that the appellant and a partner executed the deceased
    in retaliation for his theft of their drugs.  The Crown had a strong
    circumstantial evidence case against the appellant.  They also had the evidence
    of a man named Cleveland Blackwood.  Blackwood claimed that the appellant had
    confessed to him when the two met in jail shortly after the appellants bail
    hearing.  Blackwood reported the confession to the authorities a few days
    later.  Blackwood was a jailhouse informant with an established history of
    dishonesty and a clear motive to lie.  Parts of his evidence were clearly
    inaccurate.  Blackwood properly attracted a lengthy and forceful
Vetrovec
caution from the trial judge.

[3]

According to Blackwood, during his conversation with the appellant, the
    appellant admitted he had killed the victim.  He told Blackwood that the police
    could not prove the crime because they would never find the guns that did the
    job.  The appellant told Blackwood that two guns had been used to kill the
    victim.  He also indicated that the two guns seized from him were clean as a
    whistle.  Blackwood testified that the appellant told him that the gun the authorities
    had seized in the United States from his partner was also not involved in the murder.
    In fact, neither of the weapons seized from the appellant, nor the particular weapon
    seized from the partner was involved in the murder.

[4]

The defence argued that the appellant had not confessed to Blackwood, a
    virtual stranger, and that most of the information that Blackwood alleged he was
    told by the appellant came from the evidence given at the appellants bail
    hearing.  Indeed, much of what Blackwood said the appellant told him was part
    of the evidence at the bail hearing.  However, at the time of the bail hearing,
    the police had not determined that the weapons seized from the appellant were
    not connected to the murder, although the officer who gave evidence at the bail
    hearing testified that he doubted any connection.  Forensic tests were not
    completed until after the bail hearing.  The results of those tests indicated
    that the guns were not involved in the murder, but were as Blackwood said the
    appellant told him, clean as a whistle.

[5]

The Crown argued that the appellants comments about the two guns seized
    from him, placed in the context of the entire conversation with Blackwood, constituted
    evidence of the appellants participation in the murder.  The Crown argued that
    the appellants comments indicated that he knew which guns had been used in the
    murder and which had not been used.  On the Crowns argument, he obtained that
    knowledge through his involvement in the murder.  If the jury accepted that
    argument, the appellants knowledge as to what guns had been used in the murder
    became powerful evidence of his guilt.

[6]

The Crown further argued that the evidence that two guns were seized
    from the appellant and were not connected to the murder provided some
    confirmation of Blackwoods testimony that the appellant told him that the guns
    were not connected to the murder.  The confirmatory value of this evidence was
    enhanced because, unlike much of Blackwoods testimony, it could not be argued
    that he became aware that the guns were not connected to the murder through his
    knowledge of the testimony at the bail hearing.

I

was the evidence
    of the appellants possession of the two guns that were unconnected to the
    murder admissible?

[7]

We agree with the Crowns argument.  The appellants statement
    concerning the two weapons seized from him cannot be viewed in isolation.  It
    was one of several statements allegedly made by him to Blackwood about his
    knowledge of the weapons that were used in the murder.  Those statements,
    viewed as a whole, were capable of supporting the inference that the appellant
    knew which weapons had not been used in the murder because he was involved in
    the murder.  The evidence was properly admitted unless its prejudicial effect
    outweighed its probative value.

[8]

If the jury believed that the appellant made the statements about his
    knowledge of the murder weapons to Blackwood, that evidence had significant
    potential probative value.  There is also no denying that the evidence carried
    with it a real danger that a jury would misuse the evidence and treat it as
    evidence demonstrating the appellants disposition for violence, particularly
    violence involving firearms.

[9]

The trial judge was alive to the potential prejudice.  He eventually
    chose to admit the evidence and give a strong limiting instruction.  In our
    view, the trial judge acted within his discretion in such matters in
    determining that the potential prejudice could be adequately addressed by an
    appropriate limiting instruction.  The trial judge did not err in admitting the
    evidence.

II

did the trial
    judge misdirect the jury on the potential confirmatory value of that evidence?

[10]

The
    trial judge told the jury that evidence that the guns seized from the appellant
    were not used in the robbery was capable of confirming Blackwoods testimony that
    the appellant told him that those guns were as clean as a whistle and could
    not be connected to the robbery.  Counsel for the appellant argues that assuming
    the appellant made the statement to Blackwood, it is equally consistent with
    his innocence as with his guilt.  Counsel argues that a statement by the
    appellant that his guns were not used in the robbery could indicate knowledge
    of the murder weapon, but equally could indicate that the appellant had nothing
    to do with the murder and, hence, knew that his guns had not been used in the
    murder.

[11]

In
    his factum, counsel submitted that because the evidence was equally consistent
    with guilt or innocence, the trial should not have left it with the jury as
    potentially confirmatory evidence.  In oral argument, counsel made a slightly
    different alternative submission.  He argued that the jury should have been
    told that if in their assessment, the statement was equally consistent with guilt
    or innocence, it could not confirm Blackwoods testimony.

[12]

We
    cannot accept either submission.  As Crown counsel correctly observes, the
    question in the context of a
Vetrovec
instruction is not whether the
    potentially confirmatory evidence is consistent with guilt or innocence, but
    whether it confirms or supports relevant parts of the
Vetrovec
witnesss testimony.  Thus, evidence that does not implicate an accused can be confirmatory
    of the credibility of a
Vetrovec
witness on a relevant matter as can
    evidence which goes to an element of the offence that the defence has chosen
    not to dispute at trial.

[13]

Evidence
    that was independent of Blackwoods testimony could be confirmatory for the
    purposes of the
Vetrovec
warning if that evidence increased the jurys
    confidence that Blackwood was telling the truth in that part of his evidence relating
    to the appellants knowledge of and/or involvement in the events culminating in
    the murder.  Statements by the appellant potentially relating to his knowledge
    of the murder weapon fall within that category.  The forensic evidence showing
    that the two guns seized from the appellant were not involved in the murder was
    clearly independent of Blackwoods testimony.  It was capable of confirming a
    relevant part of Blackwoods testimony and, therefore, increasing the jurys
    confidence in the reliability of Blackwoods testimony.  The trial judge did
    not err in including the evidence within the category of potentially
    confirmatory evidence.

[14]

The
    variation in the argument made during oral submissions requires a further brief
    comment.  If a jury decides that evidence left with it as potentially
    confirmatory of a
Vetrovec
witness is equally consistent with the
    truth or the falsity of the
Vetrovec
evidence, then that evidence, as
    a matter of logic, cannot confirm the credibility of the
Vetrovec
witness.  A trial judge may choose to give this instruction to a jury.  We
    would not, however, make it mandatory.  It is difficult to see how a jury could
    use evidence that it had found to be equally consistent with truth as with falsity
    to confirm the credibility of the witness.  How could that evidence increase
    the jurys confidence that the
Vetrovec
witness was telling the
    truth?  Articulation of the self-evident will usually do no harm and can, on
    occasion, help.  We would not, however, go so far as to say that the failure to
    articulate the self-evident constitutes reversible error.

[15]

The
    appeal is dismissed.

Doherty J.A.

Janet Simmons J.A.

H.S.
    LaForme J.A.