WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section, no person
    shall publish the name of a young person, or any other information related to a
    young person, if it would identify the young person as a young person dealt
    with under this Act.

111(1)          Subject to this section, no person
    shall publish the name of a child or young person, or any other information
    related to a child or a young person, if it would identify the child or young
    person as having been a victim of, or as having appeared as a witness in
    connection with, an offence committed or alleged to have been committed by a
    young person.

138(1)          Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the
Young Offenders
    Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable
    to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary
    conviction.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.D., 2014 ONCA 302

DATE: 20140422

DOCKET: C54086

Cronk, Rouleau and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

R.D.

Respondent

Lucy Cecchetto, for the appellant

Raymond Boggs, for the respondent

Heard: October 16, 2013

On appeal from the acquittals entered on July 5, 2011 by
    Justice Gordon D. Lemon of the Superior Court of Justice, sitting with a jury.

Tulloch J.A.:

A.

OVERVIEW

[1]

This is a Crown appeal. Following a four-week jury trial, the respondent,
    a young person, was acquitted of second degree murder and attempted murder. The
    Crown appeals the acquittals on three grounds:

1.      The
    trial judge erred by ruling, on a pre-trial motion, that the Crown could not
    present alibi evidence in reply to refute the defences alternate suspect
    theory;

2.      The
    trial judge erred by finding that there was no inconsistency, for the purposes
    of s. 9(2) of the
Canada Evidence Act
, between the testimony at trial
    of the witness Jalen Taylor and his prior statements made to the police; and

3.      The
    trial judge erred by excluding the Crowns expert evidence on the types of
    instruments capable of inflicting the deceaseds wound.

[2]

I begin below with a brief factual background. Next, I address each of
    the above issues separately by way of a short introduction to the issue and
    arguments on appeal, a recitation of the principles that govern the analysis,
    and the application of those principles to the facts of this case. For the
    reasons that follow, I would allow the appeal on the first and third grounds
    and order a new trial.

B.

FACTUAL BACKGROUND

[3]

The charges against the respondent arose from events that took place in
    the early morning hours of October 12, 2008. On the evening of October 11, a
    group of five friends  Trisha Dookran, her sister Tisha, Nikith Keethianda, and
    two others  attended a birthday party in Mississauga. Around midnight, the
    group left the party and headed on foot towards the home of Keethianda, who
    lived nearby. At some point during their walk, three young males began to
    follow them and jeer at Keethianda for wearing red in a blue area. At the
    time, Keethianda was wearing a red shirt and had a red bandana in his pocket. Although
    he was not a gang member, Keethianda understood that he was being taunted because
    of the association of red and blue with street gangs.

[4]

Keethianda and his friends did not engage with the group of three males
    and carried on walking, but the group continued to pursue them and demanded
    that Keethianda turn over his bandana. Keethianda was then separated from his
    friends and surrounded by a larger group of people next to a fence near his
    home. He handed over his bandana, but was nevertheless struck by someone in the
    group.

[5]

Concerned for her safety and that of her friends, Tisha Dookran contacted
    her friend Shaan Ayub by phone and asked him to give the group a ride. Ayub,
    who was in his car with several passengers, told Tisha that he was coming to
    pick her up. Brandon Paltooram, who was driving a car beside Ayubs,  followed
    him.

[6]

After arriving at the scene, Ayub, Michael Singh, and Paltooram exited
    the cars. The fight quickly escalated into a brawl. Noticing that a crowd of
    people had gathered around his friends, Ayub sought to retrieve Trisha and
    Tisha and bring them back to the car. Shortly thereafter, one of the young men
    produced a knife, and Paltooram and Singh became engulfed in the brawl. Moments
    later, Singh was stabbed six times and Paltooram was stabbed once in the heart.
    Singh survived, but Paltooram died.

[7]

The respondent, R.D., was charged with second-degree murder and
    attempted murder. The central issue for trial was identity. The respondents
    appearance is distinctive: he is 411 and had a Mohawk hairstyle with a design
    on the side at the time of the events. No photographic line-up was held, but
    several witnesses provided descriptions of the person with the knife, some of which
    were consistent with the respondents appearance. There was also contradictory
    and vague evidence of what happened in the brawl.

[8]

Following a four-week trial, a jury acquitted the respondent on both
    charges.

C.

ISSUES ON APPEAL

[9]

I now turn to the Crowns arguments on appeal. First, the Crown submits
    that the trial judge erred in ruling, on a pre-trial motion, that the Crown was
    barred from presenting alibi evidence in reply to refute the defences
    alternate suspect theory. Second, the Crown contends that the trial judge erred
    in finding no inconsistency between the trial testimony and prior statements of
    witness Jalen Taylor. Third, the Crown argues that the trial judge erred by
    excluding the Crowns expert evidence on the instrument used to wound the
    deceased.

D.

ANALYSIS

(1)

The Crowns Burden on Appeal

[10]

Under
    s. 676(1)(a) of the
Criminal Code
, R.S.C. 1985, c. C-46, the Crowns
    right of appeal from an acquittal is restricted to any ground of appeal that
    involves a question of law alone: see
R. v. Curry
, 2014 ONCA 174, at
    para. 37. Acquittals are not lightly set aside, and the Crowns burden on
    appeal is a heavy one.

[11]

However,
    contrary to the respondents submissions, to succeed on an appeal from an
    acquittal the Crown is not required to persuade the court that the verdict
    would have necessarily been different. To secure a new trial, the Crown must satisfy
    the appellate court that the error (or errors) of the trial judge might
    reasonably be thought, in the concrete reality of the case at hand, to have had
    a material bearing on the acquittal:
R. v. Graveline
, 2006 SCC 16,
    [2006] 1 S.C.R. 609, at para. 14. As I explain below, I would find that the
    Crown has discharged that burden in this case.

(2)

The Crowns Alibi Evidence

(a)

The Evidence and Arguments on Appeal

[12]

At
    the preliminary inquiry, the defence called two friends of the respondent  Jalen
    Taylor and Trai Wilson  to testify that a third party, Tyrell Mitchell or
    Rich Boy, was the assailant. The Crown conceded the defence application to
    introduce alternate suspect evidence on the understanding that the evidence of
    Taylor and Wilson would form the basis of the defence position on this issue.

[13]

The
    Crown investigated the third party suspect argument and determined that Rich
    Boy had an alibi. The Crown intended to call Rich Boy, his grandmother and his
    uncle to testify that Rich Boy was not present when the offences were committed.
    On a defence pre-trial motion, the trial judge ruled that this alibi evidence
    had to be called by the Crown in-chief. The trial judge held, in reasons dated
    June 27, 2011, that the Crown would not be allowed to present this evidence in
    reply because there would be absolutely no surprise to the Crown as to the
    contents of the defence evidence and because the Crown was prepared to respond
    to the relevant and anticipated defence evidence.

[14]

On
    appeal, the Crown submits that, while it cannot split its case, it has no
    obligation to lead evidence rebutting a defence, even if anticipated. A defence
    is live only once it has been introduced in the defence case, and the specific
    evidence that will be led by the defence is unknown until it is introduced. Matters
    that are peripherally or marginally relevant need not be called in the Crowns case-in-chief.
    Here, the trial judge misunderstood the principle of relevance and the law
    regarding reply evidence. The Crown must prove beyond a reasonable doubt that the
    accused committed the offence. The Crown does not need to tender evidence in-chief
    that someone other than the accused
did not
commit the offence. In
    requiring the Crown to call its alibi evidence in-chief because, in the trial
    judges view, the element of surprise [was] removed, the trial judge
    misinterpreted the law regarding reply evidence, including this courts
    decision in
R. v. W. (A.)
(1991), 3 O.R. (3d) 171 (C.A.).

According
    to the Crown, the trial judges error created unfairness because the Crown had
    to call Taylor in-chief to provide the necessary context for its alibi evidence.
    The Crown therefore lost the right to cross-examine this witness and was
    required to both anticipate the contours of the defence evidence and reply to
    it before it had been led.

[15]

The
    respondent argues that the Crown can only call reply evidence where a matter
    has been raised that the Crown could not reasonably have anticipated and dealt
    with, or where a matter that emerged in the Crowns case has taken on added
    significance as a result of the defence case. According to the respondent, the
    Crown anticipated the alternate suspect defence and had the opportunity to address
    this defence by calling its alibi evidence. Further, it does not matter that
    evidence which emerged during the Crowns case could have taken on added
    significance as a result of the defence case because the defence led no
    evidence. The respondent adds that there is a heavy onus on the Crown on appeal
    from an acquittal, and the result would not have been different if the Crown
    were permitted to call its alibi evidence in reply.

(b)

Governing Principles

[16]

The general rule with respect to the order of proof in a criminal case
    is that the Crown must introduce, in its case-in-chief, all the evidence in its
    possession upon which the Crown relies to prove the guilt of the accused:
R.
    v. K.T.
, 2013 ONCA 257, 295 C.C.C. (3d) 283, at para. 41;
R. v. Krause
,
    [1986] 2 S.C.R. 466, at pp. 473-74. The underlying objective of the rule is to
    prevent the unfair surprise, prejudice and confusion that could result if the
    Crown were allowed to split its case:
K.T.
, at para. 42. The accused
    is entitled at the close of the Crown's case to have its full case so that the
    accused knows from the outset what must be met in response:
Krause
, at
    pp. 473-74.

[17]

However,
    it is well-established that the general rule regarding order of proof is not an
    absolute bar to the introduction of reply evidence by the Crown. Crown rebuttal
    is permitted when necessary to ensure that each party has had an equal
    opportunity to hear and respond to the full submissions of the other:
Krause
,
    at p. 474. Accordingly, the Crown is permitted to call reply evidence not only
    when the defence has raised some new matter or defence which the Crown could
    not have reasonably anticipated and with which it had no opportunity to deal,
    but also when an aspect of the Crowns case has taken on added significance as
    a result of the defence case:
K.T.
, at para. 43. Rosenberg J.A. stated
    the principle succinctly in
R. v. Quance
(2000), 146 C.C.C. (3d) 153,
    at para. 21:

[I]t has always been understood that the trial judge has a
    discretion to admit evidence in reply concerning an issue that was of only
    marginal importance during the prosecutions case in chief, but that took on
    added significance as a result of the defence evidence.

[18]

Similarly,
    because the rule regarding order of proof is designed to prevent the Crown from
    splitting its case, it does not prevent the Crown from introducing evidence in
    reply to the defence case that is not in and of itself probative of guilt.
    Reply evidence can be adduced to refute a specific defence advanced by the
    accused: see e.g.
W. (A.), supra
, at p. 181;
R. v. Campbell
(1977), 17 O.R. (2d) 673 (C.A.), at p. 693;
R. v. Stevenson
(1990), 58
    C.C.C. (3d) 464 (Ont. C.A.), at p. 490. As Doherty J.A. recognized in
W.
    (A.)
, at p. 181, the Crown is entitled to introduce this kind of reply
    evidence regardless of whether it could have anticipated the position of the
    defence:

I also reject the suggestion that because the Crown had some
    indication that the appellant would advance physical incapacity as a defence
    that the Crown was required to lead any evidence it had to counter that
    position as part of its case. That proposition is contrary to this courts
    decisions in
R. v. Campbell, supra
, and
R. v. Stevenson, supra
,
    and would, in my view, if accepted, prolong and potentially confuse trials by
    requiring that the Crown lead evidence on matters which, in the end, may have
    virtually no significance in a particular case.

[19]

This
    courts traditional approach, as applied in
Quance
,
W. (A.)
,
Campbell
and
Stevenson
, is consistent with the objective of the order of proof.
    There is no question that the defence is entitled to have the Crowns full case
    in order to mount its response. Case-splitting is impermissible. Yet evidence
    that is not probative of the accuseds guilt is not part of the case that the
    Crown must establish. Put somewhat differently, an accused is not surprised by
    reply evidence that is directed solely at an issue put in play by the defence
    case. Reply evidence that is not in and of itself probative of guilt does not
    engage the fairness concerns addressed by the rules against case-splitting.

[20]

Inherent
    in all the various formulations of the test for reply evidence is the
    significance of the case actually called by the defence.
Whether or not the Crown is entitled to call reply
    evidence depends in large measure on the evidence adduced and arguments raised
    by the defence
. The Crowns entitlement to lead reply evidence
    turns in part on whether the defence has raised a new matter or defence, or
    tendered evidence that caused the Crowns case to be viewed in a new or
    different light. In other words,
only with the benefit of the defence evidence can the admissibility of
    reply evidence be assessed
.

(c)

Analysis

[21]

In
    my respectful view, the trial judge erred in ruling that the Crown was
    precluded from leading the alibi evidence in reply. Had the trial judge
    approached the issue of reply evidence in accordance with the applicable legal
    principles, he would have concluded that the alibi evidence was properly in
    reply to the proposed defence position. Reply evidence is not limited to a
    response to matters or defences that the Crown could not reasonably have
    anticipated:
K.T.
I agree with Doherty J.A.s analysis in
W. (A.)
and
    Rosenberg J.A.s analysis in
Quance
; evidence is the proper subject of
    reply if, on its own, it is not probative of guilt, and becomes relevant only
    as a result of the defence case.

[22]

The
    case at bar is a prime example. The Crowns alibi evidence was not probative of
    the respondents guilt until the alternate suspect theory came to light at
    trial. Until that time, Rich Boys whereabouts on the night of the offence were
    irrelevant to the respondents guilt, as would be true of the whereabouts of
    any other individual selected at random. Even the language used by the trial
    judge  the Crown is completely prepared to
respond to
[the third party suspect evidence]  acknowledges that the alibi evidence was
    intended to respond to the defence case. But for the trial judges erroneous
    ruling, the Crown would have had no reason to lead evidence on the issue in its
    case-in-chief. Nor would the defence have been surprised by reply evidence
    addressing an alternate suspect theory that it had introduced.

[23]

The
    trial judge distinguished
W. (A.)
on the basis that, unlike the facts
    in that case, the Crown in this case [knew] for certain what the nature of the
    defence [would] be. Subsequent events at trial established the fallacy of this
    statement. Although the defence repeatedly stated its intention to call third
    party suspect evidence, it ultimately did not do so. It was not obligated to do
    so. Therefore, the Crown did not know  and could not have known  for certain
    that third party suspect evidence would be called. The trial judge also
    misinterpreted
W. (A.)
by fixating on whether the third-party suspect
    defence would be of surprise to the Crown. The proper question is whether
the
    defence
would be caught by surprise by the evidence that the Crown intends
    to lead in reply:
W. (A.)
, at para. 33. Had the defence in fact led
    evidence on its alternate suspect theory, the Crowns reply evidence on that
    point would have occasioned no surprise to the defence.

[24]

The
    prejudice to the Crowns case stemming from the trial judges error was both
    substantial and obvious. As a result of the trial judges ruling, the Crown was
    forced to call its alibi evidence in-chief. Because the alibi evidence was not
    yet responsive to anything raised by the defence, the Crown called Taylor to
    testify that the offence was committed by Rich Boy, not the appellant. The
    respondent argues that if there was any undertaking made by the defence, it was
    discharged by the Crowns tactical decision to call Taylor. I do not agree.

[25]

In
    my view, the Crowns decision to call Taylor was a reasonable decision, which
    flowed directly from the trial judges ruling. Calling Taylor introduced the
    third party suspect defence to the jury and provided the necessary context for
    the Crowns alibi evidence; the Crowns alibi evidence would be meaningless
    without an understanding of the third-party suspect defence. Thus, the trial
    judges ruling put the Crown in the position of responding to evidence that had
    not yet been led and a defence theory that had not yet been put forward.
    Moreover, the Crown lost its opportunity to cross-examine Taylor.

[26]

In
    considering the Crowns decision to call Taylor, it must be noted that defence
    counsel repeatedly affirmed that he would be calling evidence on the alternate
    suspect theory. Ultimately, the defence did
not
call any alternate
    suspect evidence, perhaps not surprisingly given that its evidence on the issue
    had largely been introduced by the Crown in-chief as a result of the trial
    judges error. The Crown therefore had no opportunity to cross-examine a crucial
    witness on the alternate suspect theory.

[27]

In
    the result, the Crown was required to raise the possibility of an alternate
    suspect in its case-in-chief, thereby undermining its position that the
    respondent committed the offences and losing any opportunity to cross-examine
    on the alternate suspect theory. Defence counsel did not miss the opportunity
    to draw this to the attention of the jury, stating as follows in his closing
    submissions:

Now, Jalen Taylor, he was called by the Crown. And the Crown
    told you when he was giving his opening that I would call him, but for his own
    reasons, he decided to call Jalen Taylor as a witness so I didnt have to.
    Jalen said emphatically and repeatedly that [the respondent] did not stab
    anybody. He said that Rich Boy stabbed both Brandon and Michael.

[28]

After
    it became clear that the defence might not call its third-party suspect
    evidence, the trial judge himself recognized the prejudicial effect of the
    ruling on the Crown and surmised that the likely result would be a mistrial:

[W]eve got a problem now because I made a ruling about reply.
    And that reply ruling was based on your concession that alternate suspect was
    made out by [the Crowns] concession that based on what you were going to lead
    he knew about [sic]. If you say, No, maybe I do, maybe I dont, maybe it is,
    maybe it isnt, then
the whole thing unravels
.

If you dont call [the alternate suspect witnesses] and the
    Crown has led reply evidence to non-existent defence evidence, I think the big
    M word comes up because you in your tactics have generated some evidence
    forced upon the Crown by my ruling that you can say, Well, see, you know, why
    did the Crown call these people?

[I]f you dont call Wilson and Taylor and rely on something
    else, that ruling prejudices the Crowns case. [Emphasis added.]

I agree with the trial judges own assessment of the
    impact of the error.

[29]

In
    my view, the Crown has demonstrated on appeal that the trial judges error in
    his ruling on the Crowns alibi evidence might reasonably be thought, in the
    concrete reality of the case, to have had a material bearing on the acquittal:
Graveline
,
supra
,

at para. 14;
R. v. McRae
, 2013 SCC 68, at para.
    30. The effect of the error left the trier of fact with an incomplete or
    distorted picture on the central issue of the identity of the killer:
R. v.
    Spackman
, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 256.

[30]

The
    trial judges error seriously undermined the Crowns case. In my view, this
    error was not cured by the trial judges mid-trial alternate suspect charge or
    by the leave given to the Crown to refer to the issue in its opening statement.
    Both the charge and the Crowns opening statement  which sought to convey to
    the jury the purpose of the Crowns evidence  were made under the assumption
    that the defence would in fact call evidence on the alternate suspect theory.
    This did not occur. Instead, the Crown was placed in the position of leading
    evidence that, in the end, was not part of its case and that had the effect of
    denying the Crown the opportunity to cross-examine the anticipated defence
    witnesses. This prejudice could not be  and was not  mitigated by the opening
    statement or mid-trial charge.

[31]

Although
    I would allow the appeal on this ground alone, I believe it is appropriate to
    consider the other arguments raised by the Crown on appeal.

(3)

The Section 9(2) Application

(a)

The Evidence and Arguments on Appeal

[32]

The
    Crowns second argument on appeal arises from the trial judges finding that
    prior statements of the witness Taylor were not prior inconsistent statements
    for the purposes of s. 9(2) of the
Canada Evidence Act
, R.S.C. 1985,
    c. C-5

(
CEA
). As previously mentioned, the Crown called
    Taylor at trial in order to introduce the alternate suspect defence it planned
    to rebut with alibi evidence. Taylor testified that Rich Boy was present when
    the offences were committed and was involved in the fight that broke out. The
    Crown made an application under s. 9(2) of the
CEA
to cross-examine
    Taylor on the basis that he had not identified Rich Boy in two prior statements
    to the police.

[33]

Taylor
    made his first statement to police on October 14, 2008, and his second statement
    on October 24, 2008. In the first statement, Taylor did not mention the name
    Rich Boy, but did describe a short individual with hair like his own who had
    been wearing a black Pirates baseball hat with a red and yellow P. According
    to Taylors first statement, he saw the individual in the Pirates hat reach
    into his waistband and pull something out, but he did not see what it was. In
    the second statement, Taylor stated that both the respondent and another person
    wearing a black hat with a yellow P were involved in the fighting in which
    the victims were stabbed. The individual with the yellow P hat was about 55
    or 56 tall and had a short afro hairstyle. According to Taylors second
    statement, this individual took out a long knife with a thick handle and
    stabbed the deceased.

[34]

Taylor
    testified on the
voir dire
that he had identified Rich Boy outside of
    the interview room on October 24, 2008, and the Crown conceded that the
    investigating officers notes supported this testimony. Also on the
voir
    dire
, Taylor testified that he did not initially provide to police the
    name of the individual in the black Pirates hat. Further, Taylor testified
    that references to the individual wearing a black Pirates hat were references
    to Rich Boy. The trial judge concluded that the Crown had not demonstrated any
    significant inconsistency and dismissed the s. 9(2) application.

[35]

The
    Crown submits on appeal that the trial judge erred by finding no inconsistency
    between Taylors testimony at trial and his prior statements to police. The
    Crowns position on appeal is that the trial judge should have recognized the
    inconsistencies, namely Taylors failure to identify Rich Boy in his first
    statement to police and the discrepancies in Taylors accounts of the individual
    who committed the stabbing.

[36]

The
    respondent says there was no inconsistency in Taylors evidence. Taylor always
    maintained that the respondent was not the assailant and that the actual
    assailant was short and wore a Pirates cap. Taylor named Rich Boy as the
    assailant in one of his interviews with police, at the preliminary inquiry and
    at trial. Taylor also explained that he did not specifically name Rich Boy in
    the initial interview because he was afraid.

(b)

Governing Principles

[37]

Section
    9(2) of the
CEA
provides as follows:

Where the party producing a witness alleges
    that the witness made at other times a statement in writing, reduced to
    writing, or recorded on audio tape or video tape or otherwise, inconsistent
    with the witness present testimony, the court may, without proof that the
    witness is adverse, grant leave to that party to cross-examine the witness as
    to the statement and the court may consider the cross-examination in
    determining whether in the opinion of the court the witness is adverse.

[38]

This
    provision gives the trial judge a discretion to permit, without proof that the
    witness is adverse, cross-examination on a prior inconsistent written statement
    or statement recorded or reduced to writing:
R. v. Curry
(2005), 77
    O.R. (3d) 587, at para. 28;
R. v. McInroy
, [1979] 1 S.C.R. 588, at p.
    604. To succeed in arguing, on appeal, that the trial judge erred in finding no
    inconsistency, the appellant must show that the trial judge exercised this
    discretion unreasonably:
Curry
, at para. 28.

(c)

Analysis

[39]

In
    my opinion, in the circumstances, the trial judge did not exercise his
    discretion unreasonably in concluding that the Crown had not pointed to an
    inconsistency between Taylors testimony at trial and his statement to police.
    Given the Crowns application as argued and the evidence presented on the
voir
    dire
, it was open to the trial judge to find that Taylors failure to
    mention the name Rich Boy in his first statement to police was not an
    inconsistency for the purposes of s. 9(2) of the
CEA
.

[40]

The
    Crowns s. 9(2) application focused on Taylors failure to mention the name
    Rich Boy in his statements to police made on October 14, 2008, and October 24,
    2008. In embarking on the application, the Crown characterized the alleged
    inconsistency in the following terms:

What I would  will ultimately suggest to Your Honour is that
    there is material inconsistency based on the presentation of the name Rich
    Boy as one of the parties who was present.  Its my suggestion that Mr.
    Taylor, in the course of being interviewed on two occasions with the police,
    never mentioned the presence of the person named Rich Boy, and  [t]hat, in
    my respectful submission, is a material inconsistency.

[41]

The
    Crown eventually conceded that Taylor did identify Rich Boy on October 24,
    2008, but maintained that Taylor did not mention his name in the first
    statement of October 14, 2008: Its not so much an inconsistent description
    [that forms the basis of the application], he never mentions him on the 14th;
    hes never mentioned  Rich Boy is not mentioned on the 14th.

[42]

Taylor
    testified, on the
voir dire
, that Rich Boy was the individual
    described in his first statement. He also testified that he identified Rich Boy
    ten days later, on October 24, 2008. Therefore, there was evidence on which to
    conclude that the subsequent statements and evidence at trial, which included
    the name Rich Boy, were simply a more complete version of events than the
    initial statement, and that the Crown had not identified an inconsistency based
    on the absence of the name Rich Boy in the statement of October 14, 2008.

[43]

A
    review of Taylors statements to police and testimony does reveal certain
    discrepancies that might have formed the basis of a different s. 9(2)
    application. For example, in his first statement, Taylor stated that he didnt
    see when anyone got stabbed [and] didnt even notice when any of them got
    stabbed. He stated that he did not see the knife used to commit the offence.
    In his second statement, Taylor initially stated that he didnt see when they
    got stabbed, but later described aspects of the stabbing and the knife that
    was used. At trial, Taylor testified that he saw Rich Boy stab one of the
    victims in the heart and that the murder instrument was an ice pick. These are
    significant inconsistencies. However, the trial judges exercise of discretion
    must be evaluated in the context of the s. 9(2) application actually argued,
    not the s. 9(2) applications that were available to the Crown. In light of the
    application as framed, which focused on the absence of the name Rich Boy in
    Taylors first statement, I conclude that the trial judge did not exercise his
    discretion in an unreasonable manner.

[44]

Accordingly,
    I would not give effect to this ground of appeal.

(4)

The Expert Evidence on the Murder Instrument

(a)

The Evidence and Arguments on Appeal

[45]

Taylor
    testified that the murder was committed by Rich Boy and described the object
    wielded by Rich Boy as an ice pick. According to Taylor, the murder instrument
    resembled a screwdriver. The Crown sought to have Dr. Toby Rose, a forensic
    pathologist, give evidence on the cause of the victims death, the nature of
    the injury and the types of instruments capable of creating that injury.
    Defence counsel agreed that Dr. Rose could opine on the first two points, but
    objected to her proposed evidence regarding the instruments capable of
    inflicting the injury. Accordingly, a
voir dire
was conducted.

[46]

On
    the
voir dire
, Dr. Rose testified that photographs showing the
    deceaseds wound on the skin were inconsistent with infliction using an ice
    pick or screwdriver. In her opinion, the wound was most likely caused by a
    knife since the wound did not exhibit the lacerations commonly caused by
    blunter instruments. The wound was consistent with a sharply pointed and bladed
    instrument. Dr. Roses opinion is essentially captured in the following passage
    from her testimony:

I think [an ice pick is] a fairly thin round metal object with
    a pointed tip, but no sharp edge. I would expect that the wound in the skin, and
    its the wound in the skin that is the most important, would look  would not
    look like this. It would  it would look round in the skin. How  and then it
    would probably look round all the way through. This one, I admit, on some of
    the photographs, has round features, which I think I can explain because of the
    gaping due to the muscle fibres, but it had no round appearance on the skin.

[47]

The
    trial judge ruled that Dr. Rose could not offer her opinion as to the
    instruments capable of inflicting the deceaseds injury. Dr. Rose was qualified
    to provide an opinion on this issue, having spoken on the forensic
    interpretation of wounds and the pathology of wounds and served as a member of
    the project team of the Office of the Chief Coroner of Ontario for the Commission
    of Inquiry into Ontarios Pediatric Forensic Pathology System, led by
    Commissioner Stephen T. Goudge of this court: see
The Report of the Inquiry
    into Pediatric Forensic Pathology in Ontario
(Toronto: Queens Printer for Ontario, 2008)
. There was also no question
    that Dr. Roses proposed evidence would be logically relevant.

[48]

However,
    in the trial judges view, the evidence would not be of assistance to the jury
    in helping them determine the issue of who caused the death of the deceased.
    Allowing the proposed evidence would trigger a defence request for a response
    and would result in delay. The trial judge appears to have excluded the
    evidence because its benefits did not outweigh the associated delay.

[49]

On
    appeal, the Crown argues that the trial judge erred in his application of the
    test for admission of expert opinion evidence. According to the Crown, Dr.
    Roses evidence was reliable expert opinion on a material issue for which the
    jury needed assistance. The trial judge erred in evaluating the necessity of
    the evidence by analyzing whether the evidence was determinative of identity,
    rather than whether the evidence was necessary to assist in resolving a
    material issue. The trial judge also erred in concluding that the expert
    evidence was not relevant to the question of who committed the offence. In the
    context of the evidence, including Taylors evidence that Rich Boy committed
    the offence with an ice pick, the issue of the murder weapon was critical to
    the identity of the offender. It was also relevant to Taylors credibility.
    Further, the trial judge erred in his cost-benefit analysis by excluding the
    evidence due to a speculative cost  the possibility that the defence would
    dispute Dr. Roses evidence with an expert of its own.

[50]

The
    respondent submits that the trial judge properly weighed the costs and benefits
    of the proposed evidence. According to the respondent, the Crown fails to
    distinguish between logical relevance and legal relevance, the latter involving
    an analysis of the probative value and prejudicial effect of the evidence.
    Here, the delay that concerned the trial judge included the time it would have
    taken for the defence to find an expert, have the experts funding approved by
    Legal Aid, and have the expert analyze the evidence. Also according to the
    respondent, the expert evidence was not necessary to assist the jury because it
    was a matter of common sense.

(b)

Governing Principles

[51]

Expert
    opinion evidence is presumptively inadmissible. In order to decide the
    admissibility of particular expert evidence, the trial judge must first
    determine the nature and scope of the proposed evidence:
R. v. Abbey
,
    2009 ONCA 624, 97 O.R. (3d) 330, at para. 62. The admissibility inquiry then
    proceeds in two stages, which together incorporate the criteria articulated by
    Sopinka J. in
R. v. Mohan
, [1994] 2 S.C.R. 9. First, the party seeking
    to rely on expert evidence must demonstrate that it relates to a subject matter
    properly the subject of expert opinion; that the proposed expert is qualified
    to provide the opinion; that the opinion is not contrary to any other
    exclusionary rule; and that the proposed opinion is logically relevant to a
    material issue:
Abbey
, at para. 80. Second, the trial judge must
    exercise his or her gatekeeper function, weighing the costs and benefits of the
    proposed expert evidence to determine whether it is sufficiently beneficial to
    be admitted even if it meets the pre-conditions of the first stage of the
    admissibility inquiry:
Abbey
, at para. 76. For the purposes of this
    second stage, benefits include the probative value of the evidence and the
    significance of the issue to which it is directed, whereas costs include
    consumption of time, prejudice and confusion:
Abbey
, at paras. 87,
    90-91. The product of this cost-benefit analysis is entitled to deference on
    appeal:
Abbey
, at para. 97;
R. v. D.D.
, 2000 SCC 43, [2000] 2
    S.C.R. 275, at para. 13.

[52]

The
    application or interpretation of a legal standard constitutes a question of
    law:
R. v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 18;
R.
    v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, as does an issue pertaining
    to the admissibility of evidence:
Spackman
,
supra
, at
    para. 98
;
R. v. B. (G.)
, [1990] 2 S.C.R. 57. This court
    has also treated errors in excluding expert evidence as questions of law: see
    e.g.
Abbey
, at para. 174.

(c)

Analysis

[53]

The
    trial judge appears to have excluded the proposed evidence on the basis of the residual
    cost-benefit analysis that occurs at the second stage of the
Abbey
inquiry. The trial judge found that Dr. Rose was qualified to provide the
    proposed evidence and that the evidence was logically relevant to the issues
    before the jury. The trial judge did not identify any exclusionary rule that would
    foreclose the evidence the Crown sought to introduce through Dr. Rose. Nevertheless,
    the trial judge doubted the necessity of the proposed evidence, and ultimately excluded
    it in the exercise of his gatekeeper function.

[54]

I
    would allow the appeal on this ground. The trial judge committed two related
    errors in his application of the
Abbey
test. At the outset, I note
    that, in his ruling, the trial judge failed to clearly delineate the nature and
    scope of Dr. Roses proposed evidence. The admissibility inquiry requires the
    trial judge to identify with exactitude the scope of the proposed opinion:
Abbey
,
    at para. 63. The trial judges failure to set out the nature and scope of Dr.
    Roses proposed evidence before deciding its admissibility makes it difficult
    to weigh the benefits and costs of the particular evidence. The trial judges
    failure to define the proposed evidence at the outset may well have contributed
    to the commission of the errors to which I will now turn.

[55]

First,
    the trial judge erred in concluding that the proposed evidence would not be of
    assistance to the jury in deciding who was responsible for the deceaseds
    death. With respect, the opposite is true. The trial judge held that [t]he
    question in this trial is not what caused the death of the deceased but who.
    He noted that there is a host of evidence dealing with who, not what weapon
    [was used]. However, the two questions were intertwined in light of Taylors
    evidence. Taylor testified that the murder was committed by a third party, Rich
    Boy, using an ice pick. His evidence constituted third party suspect evidence
    on which the defence intended to rely to exculpate the respondent. Expert
    evidence tending to show that the murder could not have been committed with an
    ice pick would have assisted the jury in evaluating Taylors account that the
    murder was committed by Rich Boy rather than the respondent. The murder
    instrument was central to resolving the question of whether the respondent committed
    the murder.

[56]

Contrary
    to the respondents assertion, a determination of the murder instrument based
    on an analysis of the deceaseds skin wound is not a matter of common sense.
    Ordinary persons are not trained in forensic interpretation of wounds.
    Accordingly, members of the jury were unlikely to form a correct judgment on
    this issue in the absence of expert opinion:
D.D.
,
supra
, at para. 21.

[57]

Second,
    and as a direct result of the first error, the trial judge conducted a flawed
    cost-benefit analysis in excluding Dr. Roses evidence. Having failed to
    appreciate the value of the proposed evidence, the trial judge measured its discounted
    benefits against the only cost identified  the possibility of a delay in the
    event that the defence sought an opportunity to respond to the proposed
    evidence. I agree with the Crown that this cost was speculative; although no
    defence request had been made, the trial judge considered that the defence
    would have the opportunity to say, we want our opportunity, which would
    generate a delay almost certainly. Had the trial judge properly assessed the
    probative value of Dr. Roses evidence and the significance of the issue to
    which it was directed, he would have concluded that the benefits of the
    proposed evidence outweighed the
possibility
of a defence request that
    would generate a minor delay.

E.

DISPOSITION

[58]

I
    would allow the appeal on the first and third grounds identified by the Crown.
    The trial judges errors in dealing with the Crowns alibi evidence and the
    expert evidence on the murder instrument were serious and prejudicial to the Crown.
    The circumstances warrant a new trial, and I would so order.

Released: EAC April 22, 2014

M. Tulloch J.A.

I agree. E.A. Cronk
    J.A.

I agree. Paul
    Rouleau J.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. Racco, 2014 ONCA 292

DATE: 20140415

DOCKET: C56897

Laskin, Watt and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Peter Racco

Appellant

Alan D. Gold and Melanie Webb, for the appellant

Joanne Stuart, for the respondent

Heard: April 14, 2014

On appeal from the decision of the Summary Convictions
    Appeal Court dated March 15, 2013 by Justice Bruce Durno of the Superior Court
    of Justice, dismissing the appeal from the conviction entered on October 31,
    2011 by Justice
Roselyn
Zisman of the Ontario Court of
    Justice.

APPEAL BOOK ENDORSEMENT

[1]

The proposed appeal does not meet either of the branches for leave to
    appeal under
R. v. R.(R.)
.  Accordingly leave to appeal is refused.

[2]

The publication ban on the complainants name and her identity
    continues.