COURT OF APPEAL FOR ONTARIO

CITATION: Piscopo (Re), 2014 ONCA 19

DATE: 20140110

DOCKET: C56921

Doherty, Feldman and MacPherson JJ.A.

IN THE MATTER OF: Luigi Piscopo

AN APPEAL UNDER PART XX.1 OF THE
CODE

Joseph Di Luca,
Amicus Curiae

James Thomson, for the respondent, the Centre for
    Addiction and Mental Health

Dena Bonnet, for the respondent, the Attorney General of
    Ontario

Heard and released orally: December 13, 2013

On appeal from the disposition of the Ontario Review
    Board dated April 30, 2013.

ENDORSEMENT

[1]

The appellant was found not guilty by reason of insanity of second
    degree murder of his wife in 1986.

[2]

At his latest Ontario Review Board (ORB) hearing, for reasons
    dated April 30, 2013
, the appellants detention was
    continued in the General Forensic Unit of the Centre for Addiction and Mental
    Health (CAMH) in Toronto. The disposition stipulated that the hospital may
    permit him to live in the community, continuing a condition of the previous
    disposition.

[3]

The appellant currently lives in the
    community where he has been cared for by the same Assertive Community Treatment
    (ACT) team for the last ten years. He visits the team to receive his medication
    on weekdays and they come to his residence on weekends to ensure that he does
    take the medication. He requires the medication to prevent lapsing into a
    psychotic state where he could become delusional and homicidal.

[4]

The only witness at the hearing was his
    treating psychiatrist, Dr. Duff.  She testified that the appellant remains a
    significant threat to the safety of the public. She also gave the opinion that
    a conditional discharge was not an appropriate disposition: unlike a custody
    order, it would not allow for the appellant to be apprehended quickly and
    returned to hospital in the event that he were to go off his medication. Under
    a conditional discharge, there would likely be a delay or police intervention
    as the appellant could only be returned to hospital under the
Criminal
    Code
, R.S.C. 1985, c. C. 46 (for breach of
    condition) or under the
Mental Health Act
, R.S.O. 1990, c. M. 7 (if he became a danger to himself or
    others).

[5]

The Board accepted Dr. Duffs evidence
    and concluded:

Having heard the evidence and
    considered the exhibit and the submissions of the parties, the panel
    unanimously concludes that the accused remains a significant threat to the
    safety of the public.  He suffers from a major mental illness, remains
    delusional even when medicated, and has no insight into his illness, the
    continued need for anti-psychotic medication, the seriousness of the index
    offence, and other risks he poses to public safety if not medication
    compliant.  He reluctantly complies with the requirement that he take his
    medication, decompensates rapidly when unmedicated, and is quick to become
    angry if frustrated.  The panel adopts the rationale for the conclusion of
    significant threat to public safety cited above in the hospital report and the
    evidence of Dr. Duff.

The panel does not find the
    suggestion of a discharge on conditions to be realistic at the present time.
    Mr. Piscopo is incapable to consent to treatment and has stated that he would
    discontinue medication if not compelled to take it.  Further, the panel is persuaded
    that the hospital continues to need the ability to admit Mr. Piscopo into the
    hospital quickly as a result of his rapid rate of decompensation when
    unmedicated or partially medicated, to control his housing, and to ensure that
    the administration of his anti-psychotic medication is supervised by medical
    professionals.  The evidence establishes that a discharge on conditions would
    be insufficient to maintain the level of supervision required, to ensure his
    quick re-admission to hospital, and to determine appropriate accommodation.
    Accordingly, having considered the factors set out in s. 672.54 of the
Criminal
    Code
, the panel unanimously concludes that
    continuation of the present detention order in all respects remains appropriate
    as the least onerous and least restrictive disposition in the present
    circumstances.

[6]

Mr. DiLuca, acting as
Amicus
before this court,

argues that the appropriate disposition here was a
    conditional discharge. He submits that the Board erred in its conclusion that
    the detention order is the least onerous and least restrictive order and
    necessary to maintain sufficient control of the appellant. His overall
    submission is that the Board could have crafted conditions in a conditional
    order that effectively mirrored the conditions of the detention order.

[7]

We do not agree. Dr. Duff made it clear that if the appellant were to
    stop taking his medication and decompensate, the methods for apprehending him
    under the
Criminal Code
or under the
Mental Health Act
are
    not sufficient to get him back to the hospital quickly enough to address his
    condition.

[8]

In our view, the Board made no error in its conclusion that a detention
    order was the least onerous and least restrictive order that could be made for
    the appellant at this time.

[9]

The appeal is therefore dismissed.

Doherty J.A.

K. Feldman J.A.

J.C. MacPherson 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. Barua, 2014 ONCA 34

DATE: 20140117

DOCKET: C55805

Doherty, Strathy and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kamal Barua

Appellant

Erika Chozik, for the appellant

Michael Medeiros, for the respondent

Heard: January 8, 2014

On appeal from the convictions entered by a jury presided
    over by Justice Michael G. Quigley of the Superior Court of Justice on March
    23, 2012 and on appeal from the sentence imposed on July 23, 2012.

By the Court:

[1]

The appellant was convicted by a jury
    of sexual assault and sexual interference.  The trial judge stayed the sexual
    assault charge and imposed a 10-month sentence on the sexual interference charge.
    The appellant appeals conviction and sentence.  We are satisfied that the
    appeals should be dismissed.

[2]

The complainant, a young boy of 10
    years of age (eight at the time of the alleged offence), testified that the
    appellant, the husband of the woman who babysat the complainant, sexually
    assaulted him while the two were sleeping on a mattress in the bedroom.  The
    complainant alleged that the appellant pulled down his pants, kissed him,
    touched and licked his penis, and humped him.  According to the complainant,
    the assault occurred while the appellants wife and young son were asleep
    nearby on a bed.  The complainant testified that he struggled during the
    assault and that the noise awoke the appellants wife who spoke to him.  She
    did not testify at trial.  The complainant told his mother about the assault
    when she came to pick him up the next day.

[3]

The appellant testified and denied that
    he assaulted the complainant.  The defence claimed that the allegation had been
    fabricated by the complainants mother for reasons which need not be detailed
    here.  It was the position of the defence that the appellants testimony, the
    evidence that the complainants mother had a motive to fabricate the
    allegation, and the very real problems with the reliability of the
    complainants evidence, taken in combination, should leave the jury with at
    least a reasonable doubt.

the conviction appeal

[4]

Counsel for the appellant advanced five grounds on the conviction
    appeal.  We called on the Crown on two of those grounds.  These reasons will
    address those two grounds and the appellants submission that the verdicts were
    unreasonable.

(a)

The Reasonableness of the Verdicts

[5]

Counsel for the appellant contends that the convictions were based
    almost exclusively on the complainants evidence.  She submits that, on any
    reasonable view, the complainants evidence was rife with inconsistencies and
    self-contradictions, incomprehensible in many respects, and nonsensical in
    others.  To make her point, counsel referred the court to one answer given by
    the complainant which suggests that he had difficulty distinguishing dreams
    from reality.

[6]

This courts power to review the reasonableness of a verdict extends to
    jury verdicts even where they are based on credibility assessments.  This court
    must, however, conduct its reasonableness assessment bearing in mind the
    significant advantage enjoyed by the jury when it comes to assessing the
    credibility of witnesses.

[7]

The complainants statement to the police was admitted pursuant to s.
    715.1 of the
Criminal Code, R.S.C. 1985
, c. C-46
.  A relatively brief examination in-chief and a
    lengthy cross-examination followed.  The complainant testified for two days.
    No doubt, the complainant said different things at different times.  Also, as
    noted by the trial judge, some of the complainants answers were difficult to
    understand.

[8]

A review of the entirety of the evidence, however, shows that the core
    of the complainants allegation against the appellant remained largely intact.
    We cannot say that no reasonable jury, properly instructed, could have
    convicted the appellant based on the evidence of the complainant.

[9]

In rejecting the claim that the verdicts are unreasonable, we make two
    observations about the evidence.  First, it was common ground that the appellant
    lay down on the mattress where the complainant, a young boy of eight years of
    age, was already asleep.  Apart from the fact that the appellant was married to
    the person babysitting the complainant, there was no connection between the
    two.  There was also apparently an empty couch nearby.  According to the
    complainant, he eventually took refuge on that couch.  Second, the complainant
    made an allegation of sexual misconduct the very next day when his mother
    arrived to pick him up at the appellants home.  Those two facts provide part
    of the context in which the jury had to assess the complainants evidence.  The
    verdicts survive the reasonableness analysis.

(b)

The Instruction on the Evidentiary Use of the Complainants Alleged
    Statement to his Mother

[10]

The
    complainants mother testified on cross-examination that, about a year after
    the alleged assault and just before the preliminary inquiry, the complainant
    told her about additional sexual assaults perpetrated against him by the
    appellant.  These assaults were significantly more serious than those alleged
    in the initial disclosure.  According to the mother, the complainant also told
    her that the appellant had showed him pornographic movies.  The evidence is not
    clear as to when these incidents were alleged to have occurred.

[11]

The
    complainant was not cross-examined about this alleged further disclosure made
    to his mother.  He was cross-examined in more general terms about any
    additional disclosures he made after his initial disclosure.  As we understand
    his evidence, he did not acknowledge making any additional disclosures.

[12]

The
    defence also called a friend of the complainants mother to testify about the
    alleged further disclosure.  According to the mother, this friend had been
    present during that disclosure.  The friend testified that the complainant told
    her about a sexual assault.  According to the friend, however, this
    conversation did not take place in the presence of the complainants mother.
    Nor, according to the friend, did the complainant provide the details referred
    to in the evidence of the complainants mother.

[13]

The
    defence argued at trial that the complainant had not made the further
    disclosure statement to his mother and that this part of the mothers evidence
    was fabricated.  The defence argued that this fabrication supported the defence
    position that the initial allegation was fabricated by the complainants
    mother.

[14]

It
    is common ground that the alleged statement by the complainant to his mother
    was not admissible for the truth of its contents.  The trial judge made this
    clear to the jury both by way of a mid-trial instruction and in his final
    instructions.

[15]

Counsel
    for the appellant submits, however, that the alleged further disclosure
    statement was admissible, depending on the view the jury took of that statement,
    either to impugn the credibility of the complainant or to support the defence
    position that the mother had fabricated the allegation.  Counsel submits that,
    if the jury believed the mothers testimony that the complainant provided the
    further disclosure, that statement by the complainant was inconsistent with his
    trial testimony and, therefore, could be used to impeach his credibility.
    Counsel also submits that, if the jury was not satisfied that the further
    disclosure statement was made, that finding would significantly undermine the
    mothers credibility and buttress the defence position that the mother had
    fabricated the initial allegation.  Counsel submits that the trial judge
    erroneously told the jury that the alleged further disclosure statement could
    not assist in assessing the evidence of either the complainant or his mother.

[16]

The
    trial judge told the jury that the mothers evidence of the additional
    disclosure made by the complainant could not be used to assess the
    complainants evidence.  Tested against the abstract rules of evidence, that
    instruction is at least incomplete and arguably wrong.  It could be said that
    the evidence of the complainants further disclosure was inconsistent with his
    testimonial version of the assault.  We stress, however, that the nature,
    extent, and effect of the inconsistency are very difficult to discern on this
    record, especially in the absence of any cross-examination of the complainant
    on the alleged statement.

[17]

Whether
    the instruction caused any prejudice to the appellant is not, however, tested
    solely by reference to the rules of evidence without regard to the
    circumstances of the particular case.  The propriety of the instruction must be
    tested bearing in mind the positions advanced by the parties at the trial and
    the evidence adduced by the parties.

[18]

It
    was not part of the defence position that the complainant had made the alleged
    additional disclosure to his mother.  This is evident from the absence of any
    cross-examination of the complainant on that alleged statement.  Further, any
    suggestion by the defence that the complainant had actually made the further
    disclosure would significantly undercut the defences central position that the
    mother had fabricated the initial allegation, as evinced by her later fabrication
    of a much more serious version of the allegation.

[19]

The
    instruction now urged would not have assisted the defence as advanced at
    trial.  If the jury had been instructed that it could use the statement to
    assess the complainants credibility, the defence ran the risk that the jury
    would find that the further disclosure statement was made, thereby undermining
    the defences allegations against the mother. Also, given the absence of any
    cross-examination of the complainant, it is doubtful that the jury would have
    found the statement of much help in assessing the complainants credibility.

[20]

At
    trial, the defence took the position that the jury should be told that the
    alleged statement to the complainants mother could not be considered by the
    jury in assessing the complainants credibility.  This position, accepted by
    the trial judge, reflects, in our view, an appreciation of the risks to the
    defence position, should the jury find that the statement was made.  The
    defence agreed to an instruction which would eliminate that risk.  In those
    circumstances, the trial judges instruction was appropriate and certainly did
    not prejudice the defence.

[21]

The
    trial judges instructions as to how the jury could use the prior disclosure
    statements when assessing the credibility of the mothers evidence are somewhat
    unclear.  At one point in the instructions, the trial judge told the jury that
    the evidence could not be used to contradict or impeach the credibility of the
    complainants mother.  This instruction was, however, given in the context of
    an instruction that the evidence of the complainants alleged additional
    disclosure to his mother was not admissible for the truth of its contents.  As
    we understand the instruction, the trial judge was telling the jury that it could
    not, in assessing the credibility of the complainants mother, do so on the
    basis that the allegations made in the alleged further disclosure were true.
    This instruction is correct, although, perhaps, not particularly helpful.  In
    fairness, however, it should be pointed out that the trial judge specifically
    vetted this part of his instruction with counsel.  Both the Crown and the
    defence were content with the instruction.

[22]

Apart
    from the trial judges references to the alleged additional disclosure made by
    the complainant as part of his instructions on out-of-court statements, the
    trial judge also dealt with that evidence in the context of the defence
    theory.  He reminded the jury of the evidence of the complainants mother and
    the conflicting evidence of her friend.  The trial judge also related that part
    of the evidence directly to the defence position, telling the jury:

She [defence counsel] indicated to the court that those
    allegations were disclosed by N. [the complainant] in front of [the mothers
    friend] which [the mothers friend] denies, she says  N.s mother clearly had
    a motive, according to the defence, to at the very least embroider [
sic
]
    what N. had indicated to her, if not engage in outright fabrication.

[23]

We
    are satisfied that the jury understood the potential relevance of the evidence
    of the complainants alleged further disclosure to the credibility of the
    mothers evidence.  The connection was simple and straightforward and put to
    the jury as part of the defence position.  This positioning made sense, as the
    value of the evidence to the defence did not lie in any inconsistency with
    anything else the mother had said, but rather in the claim, supported by the
    friends evidence, that the mother had fabricated her evidence that her son had
    made a further disclosure to her.

(c)

The Instruction as to the Manner in which the Jury Should Approach the
    Evidence of the Complainant

[24]

The
    appellant submitted that the trial judges instruction, read as a whole,
    conveyed to the jury the message that it should test the credibility and the
    reliability of the complainants evidence against a lower standard than was to
    be applied to the assessment of the credibility and the reliability of adult
    witnesses.  We cannot agree that the instruction had that effect.

[25]

The
    complainant was 10 years old when he testified.  There was also one other child
    witness.  The trial judge was obliged to tell the jury that it must take into
    account the age of the complainant and the other child witness in assessing the
    evidence of those witnesses.  Factors which may have a decisive effect on the
    reliability of the evidence of an adult witnessfor example, material
    inconsistencies in details as to time and placemay play a significantly lesser
    role in assessing the reliability of the evidence of a child witness.  That is
    not to say that the childs evidence is subject to a less rigorous standard of
    assessment before it can be accepted in a criminal trial.  Rather, it is to say
    that the assessment of the credibility and the reliability of any witness is to
    be tailored to the individual characteristics of the witness.  Where the
    witness is a young child, age is one of those individual characteristics:
R.
    v. W. (R.)
, [1992] 2 S.C.R. 122, at pp. 133-34.

[26]

The
    trial judge dealt with the assessment of evidence of child witnesses at some
    length in his initial charge.  He directed the jury that it had to bear in mind
    the age of the witness in assessing the reliability of the evidence.  He told
    the jury that child witnesses may not have the same ability as adults to recall
    details or describe events fully.  Consequently, inconsistencies in respect of
    such matters may not be as important in assessing the evidence of a child
    witness.  The trial judge, however, told the jury that his instruction was not
    intended to lower the standard to be applied in assessing the evidence of a
    child:

This does not mean, however, that we should subject the
    testimony of children to a lower level of scrutiny or reliability than we do
    adults.  It would be inappropriate to inadvertently relax the proper level of
    scrutiny to which the evidence of children should be subjected.

[27]

The
    trial judge concluded this part of his initial instruction with the
    admonition:  Use your good common sense.

[28]

In
    response to an objection by counsel for the appellant, the trial judge
    recharged the jury and reiterated his initial instruction that the same
    standard must be applied to assessing the evidence of child witnesses as
    applied to all other witnesses.  The trial judge specifically told the jury
    that he had not intended to suggest that a different standard applied when he
    referred to the complainants apparent confusion on the witness stand.

[29]

Finally,
    in response to a jurys request to see the complainants s. 715.1 videotaped
    statement, the trial judge reminded the jury of the approach it should take in
    assessing the entirety of the complainants evidence:

You do not apply a different standard when you evaluate the
    evidence of N. [the complainant] relative to the standard that is applied to an
    adult witness.  It is true that you must assess his evidence taking into
    account of the fact that he is a child, but you must not subject his evidence
    to a lower level of scrutiny because he is a child.

[30]

The
    trial judge not only repeatedly and correctly instructed the jury as to how it
    should approach the evidence of the complainant because he was a child, he also
    reviewed the complainants evidence in some detail.  In that review, he focused
    on several features of the evidence relied on by the defence at trial and on
    appeal to demonstrate the unreliability of the complainants evidence.

[31]

The
    jury was properly equipped to consider the evidence of the complainant.  It was
    ultimately for the jury to determine whether his evidence was sufficiently
    reliable.

the sentence appeal

[32]

Counsel
    focused on a single argument in support of the sentence appeal in her oral
    submissions.  She contended that the trial judge failed to give adequate weight
    to the appellants personal circumstances when fixing a sentence of 10 months.
    Counsel stresses the significant adverse effects of the charges and the
    subsequent conviction on the appellants health and his family life.  The
    appellant has been required to live apart from his family as a result of these
    charges.

[33]

The
    trial judge gave detailed reasons for sentence.  He summarized the pertinent
    medical evidence and other circumstances personal to the appellant.  He was
    clearly alive to the various mitigating features presented on behalf of the
    appellant.

[34]

The
    trial judge correctly concluded that a sexual assault on a young victim in the
    circumstances of this case would normally attract a medium to high range
    reformatory sentence even for a first offender.  The trial judge proceeded to
    impose a 10-month sentence.

[35]

The
    length of the sentence imposed reflects the trial judges consideration of the
    appellants personal circumstances and a mitigation of what would otherwise be
    an appropriate sentence to reflect those personal circumstances.  We see no
    error in principle in the sentence imposed.  There is no suggestion that it is
    manifestly excessive.  We cannot interfere with the sentence imposed by the
    trial judge.

[36]

The
    appeal is dismissed.

RELEASED: DD  JAN 17 2014

Doherty J.A.

G.R. Strathy J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Beckford, 2014 ONCA 66

DATE: 20140124

DOCKET: C54940

Feldman, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dwight Lloyd Beckford

Appellant

Joseph Di Luca, for the appellant

Amy Alyea, for the respondent

Heard and released orally: January 16, 2014

On appeal from the ruling of Justice Nancy M. Mossip
    dated July 20, 2010 and from the conviction entered on February 25, 2011 by
    Justice Bruce Durno of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The motion judge accepted the affiant police officers evidence.  While
    we may have decided that issue differently, she was alive to the difficulties with
    the officers evidence and in spite of them accepted it.

[2]

In our view, this informant was not an anonymous tipster. He or she was
    known to the police. The affiant officer had met with him or her. His or her
    information was firsthand. He or she knew the appellant and knew that he kept
    guns in the home he shared with his father and grandmother. He or she had seen
    the guns on a number of occasions and knew that the appellant had outstanding
    drug charges, a fact confirmed by the affiant before swearing the ITO.
    Certainly the ITO could and should have been drafted more carefully. There
    should have been no mention of a criminal record. The appellant did not have
    one.

[3]

The other information from CPIC was properly included although the
    manner of its inclusion was somewhat problematic. That information was
    imprecise and this affiant could not speak to how the Toronto Police Service
    put information up on CPIC.  However, in all the circumstances, this error
    would not tip the balance.

[4]

As to the request for a judicial summary, the appellant does not
    challenge the motion judges decision to refuse cross-examination on the issue
    of compensation. Accordingly we see no error in the motion judges refusal to
    provide a judicial summary in circumstances where very few people would have
    had the information this confidential informant had and his or her identity
    could be readily discerned.

[5]

In all the circumstances, it was open to the motion judge to make the
    finding she did. There is no error of law; there is no misapprehension of
    evidence; and she did not fail to consider material evidence. In this court
    deference is owed to her decision and we would not interfere with it.

[6]

The appeal is dismissed.

K. Feldman J.A.

J. MacFarland J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Carroll, 2014 ONCA 2

DATE: 20140102

DOCKET: C52102

Laskin, Goudge and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Reginald Carroll

Appellant

Jonathan Dawe, for the appellant

Jamie Klukach, for the respondent

Heard:  May 28, 2013

On appeal from convictions entered by Justice John S.
    Poupore of the Superior Court of Justice, sitting with a jury, on December 16,
    2009.

Watt J.A.:

[1]

Late
    one night, two blasts from a shotgun ended a lovers relationship in a remote
    camp north of Sudbury.  One victim, Carolyn Carroll, was the estranged wife of
    Reg Carroll (the appellant).  The other victim, Tony Comeau, had recently returned
    to the Sudbury area after an absence of about two decades.

[2]

Nobody
    saw the appellant shoot the victims.  No forensic evidence linked him to the
    killings.  Investigators never found the shotgun.

[3]

The
    case for the Crown relied on circumstantial evidence.  Evidence of motive and
    opportunity.  Evidence of familiarity with, and access to, the killing ground.
    Evidence of things said by the appellant to his girlfriend, shortly before and
    shortly after the killings.  And evidence of the appellants access to, and
    familiarity with, guns.

[4]

The
    Crown contended that the appellant was guilty of first degree murder on either
    of two bases.  Each involved a murder that was planned and deliberate.  The
    first was that the appellant himself shot and killed the deceased in
    circumstances that amounted to planned and deliberate murder under s. 231(2) of
    the
Criminal Code
.  The second was that the appellant hired two others
    to kill the deceased and that they did so.  On this basis, the appellant
    committed first degree murder under s. 231(3) of the
Criminal Code
.

[5]

The
    jury at the appellants trial were convinced beyond a reasonable doubt that he
    was guilty of first degree murder.  But the appellant, who did not testify,
    says that his convictions should be set aside.  He says that the trial judge
    should have cautioned the jury about the danger of relying on the evidence of
    his girlfriend without confirmation of it from some other sources.  He adds
    that the trial judge should not have permitted Crown counsel to introduce some
    hearsay and some bad character evidence.

[6]

These
    reasons explain why I have concluded that a new trial is not warranted in this
    case.

THE BACKGROUND FACTS

[7]

A
    brief canvass of some of the evidence adduced at trial is sufficient to locate
    the claims of error in their setting, leaving to the specific grounds of appeal
    more detailed references.

The Principals and
    their Relationship

[8]

The
    evidence at trial focused on the unravelling marriage of Carolyn and Reg
    Carroll, an event that closely followed, perhaps was precipitated by, the
    return of Tony Comeau to Sudbury.

[9]

Carolyn
    and Reg Carroll married in 1989.  Their only child, Lacey, was born in 1991.
    The family lived in a house the appellant built in Wahnapitae, a small
    community in the western part of Greater Sudbury.  This home replaced an
    earlier residence that had been destroyed, along with all its contents, in a
    fire.  The old and new properties were close together.

[10]

Reg Carroll had
    his own trucking business.  Carolyn Carroll received a disability pension
    because of injuries she had suffered in a car accident several years earlier.
    Lacey was a student at the local community college and had a part-time job.

[11]

Tony Comeau was
    an old friend of Carolyn Carroll.  He returned to Sudbury in the summer of 2007
    and was looking for work in the area.

The Camp at Thor Lake

[12]

Carolyn
    Carrolls family had a camp at Thor Lake, about 60 miles northwest of
    Wahnapitae.  The camp was accessible by train at an unscheduled stop about a 15
    minute walk away from the camp or by car.  To reach the camp by car involved
    driving much of the way on a paved road, followed by passage over an extremely
    rough dirt bush road that required use of a 4-wheel drive vehicle or an ATV.
    The camp was not on an electrical or a telephone grid and had no cell phone
    service.

[13]

The travel time
    between the Carroll home and the camp varied between two and three hours during
    daylight hours.  Some familiar with the route said the drive could be completed
    in less time.

The Carrolls
    Separation

[14]

During the last
    few years of their marriage, the relationship between Carolyn and Reg Carroll
    deteriorated, in part because of disputes about the appellants drinking.  By
    the fall of 2007, the appellant suspected that his wife was having an affair
    and planned to leave him.  Carolyn Carroll denied that she was having an
    affair.  The appellant did not believe her.

[15]

The appellant,
    convinced of his wifes infidelity and plans to abandon the marriage,
    transferred over $100,000 from their joint savings account into his own
    account, piled his wifes things into her SUV, and locked her out of the
    house.

[16]

Carolyn and
    Lacey Carroll moved into a hotel.  A few weeks later, Lacey came back to live
    with the appellant.  She did not like her mothers relationship with Tony
    Comeau and told the appellant about it.

[17]

Carolyn and Reg
    Carroll resumed their relationship briefly after the appellants father had
    committed suicide.  The reconciliation did not last.  One evening, Carolyn left
    to pick up a loaf of bread.  She never returned.  Later the same month, the
    appellant began a relationship with Kim Moncion, a friend of Carolyns, who had
    recently separated from her husband.

[18]

In early
    December 2007, Carolyn Carroll moved into Tony Comeaus apartment at the
    Colonial Inn in Coniston, a five minute drive west of Wahnapitae.

The Matrimonial
    Litigation

[19]

Matrimonial litigation
    followed hard on the heels of the Carrolls final separation.  Each retained
    counsel.  In early April 2008, the appellant was served with Carolyns
    materials.  Predictably perhaps, the litigation was acrimonious.  In dispute were
    the custody of Lacey, the division of property and, especially, possession of
    the matrimonial home.  Carolyn sought exclusive possession of the matrimonial
    home as well as an accounting of the funds that were missing from the couples
    joint account.

The Victoria Day
    Weekend, 2008

[20]

Carolyn
    Carrolls family planned to spend the 2008 Victoria Day weekend at the Thor
    Lake camp.  She and Tony planned to take the Thursday evening train.  It was
    their responsibility, as the first to arrive, to turn on the propane appliances
    and the generator.  The couple loaded up some property from the site of the
    Carrolls previous home.  The appellant drove by in his truck when the couple
    were there.  He had no trailer attached to his vehicle.

[21]

Carolyn Carroll
    and Tony Comeau went to the train station.  The appellant saw them there as he
    drove to his mothers home.

The Appellants
    Activities

[22]

The appellant
    picked Lacey up from her after-school job and returned home around 7:30 on
    Thursday evening.  He bought gas and cigarettes at a service station in
    Wahnapitae at 7:38 p.m.  Later, he drove over to the site of their former home
    where he hitched a black utility trailer to the back of his Chevy Avalanche.
    After the appellant returned home, Lacey heard him starting up his ATV behind
    the house but did not see him load the ATV onto the utility trailer.

[23]

The appellant
    stayed at home until Lacey went to bed at 10 or 11 p.m.

The Visit to Kim
    Moncion

[24]

Kim Moncion
    lived in Hanmer near the Sudbury Airport where she worked as an airline sales
    and service agent.  She telephoned the appellant on Thursday evening shortly
    after her estranged husband had come to her home, along with his new
    girlfriend, to drop something off.  Ms. Moncion was upset by the visit.  The
    appellant agreed to come over to Ms. Moncions house.  She accepted his offer.
    He arrived about 40 minutes later.

[25]

When the
    appellant arrived, Ms. Moncion was outside her home.  She thought it odd that
    the appellant was driving his Chevy Avalanche truck towing a trailer with the
    quad (ATV) on it.  She had never seen a quad on the trailer before.  When she
    asked about the quad, the appellant said he was going to camp.

[26]

Over tequila,
    the couple shared their common upsetting experiences of the day with their
    estranged spouses.  The appellant told Ms. Moncion that he had seen Carolyn and
    Tony Comeau packing to spend the long weekend at the lake.  He didnt feel that
    Tony had the right to be at the same camp he and Carolyn had shared during
    their marriage.

[27]

As the couple
    continued to drink tequila, the appellant said he had something else he wanted
    to discuss with Ms. Moncion but he was reluctant to do so.  At her urging, he
    told her that tonight was going to be the night.  Ms. Moncion took this to be
    a reference to some previous conversations in which the appellant had talked
    about go[ing] through the Hells Angels to hire somebody for $10,000 and have
    a two-for-one deal.  The appellant explained that there were two men waiting
    up at Thor Lake.  The appellant had doubts about their capabilities.  The
    appellant said he had a gun under the front seat of his truck.

[28]

The appellant
    asked to see Ms. Moncions gun collection but she couldnt find the key to the
    locked gun cabinet.  He left Ms. Moncions home around 11 p.m.

[29]

Ms. Moncion
    didnt take the appellant seriously.  She thought he would return home after he
    left her house.  She called him twice on his cell phone within about 15 minutes
    of his departure.  The phone rang but the appellant did not answer.

The Next Day

[30]

The appellants
    Chevy Avalanche was in his driveway at 5:30 the following morning.  The utility
    trailer was not attached to it.  At 7 a.m., the appellant woke up Lacey for
    school but did not take her there until 10:30 a.m.  For most of the day, the appellant
    stayed home.  He spoke briefly by telephone with Ms. Moncion that evening.

The Finding of the
    Bodies

[31]

Carolyn
    Carrolls relatives arrived at the camp at around 9:35 p.m. on Friday.  The
    camp was in darkness.  The generator was not running.  The other preparatory
    tasks that Carolyn and Tony Comeau were to have performed had not been
    completed.  Someone started the generator.  The family members found the bodies
    of Carolyn and Tony Comeau in the bedroom.

[32]

Family members
    called the police from another camp and alerted them about the potential for
    harm to Lacey and another member of Carolyns family.  The police went to the
    appellants home and took Lacey, the appellant, and another family member to
    the police station.  The officers told Lacey and the other family member about
    the deaths at the camp.  The appellant remained in the lobby of the police
    station.

The Appellants
    Police Interview

[33]

Shortly before
    7:30 a.m. on Saturday, May 17, 2008, a police officer interviewed the
    appellant.  The interview was videotaped, transcribed, and admitted as evidence
    at trial.  The appellant was not under arrest at the time of the interview.

[34]

During the
    interview, the appellant denied having been at Thor Lake since the previous
    fall.  He denied having threatened or stalked the deceased.  He explained
    several scratches and bruises visible at various places on his body as having
    been caused when he was working on his truck at his home on Thursday of that
    same week.

[35]

The appellant
    drove to Kim Moncions house on Saturday afternoon after he had left the police
    station.  He told Ms. Moncion that the deceased had been found murdered or
    dead.  He was driving the Chevy Avalanche without the trailer or quad attached
    to the rear.

The Physical Evidence

[36]

With the
    possible exception of a licence plate issued for a trailer, no physical
    evidence connected the appellant to the Thor Lake camp or to the bodies of the
    deceased.  Subsequent searches failed to yield the appellants trailer used to
    transport the ATV, a shotgun, shotgun shells, or the clothing and footwear the
    appellant was wearing as shown on the videotape from the gas station at
    Wahnapitae around 7:30 p.m. on Thursday, May 15, 2008.

[37]

In the winter of
    2008, the appellant had purchased a black utility trailer and registered it
    with the Ministry of Transportation.  He was issued licence plate E21 93H for
    the trailer.  The day after the bodies were discovered, some relatives of the
    deceased said they saw and photographed a licence plate, E21 93H, about two
    feet off the road.  They left the plate there undisturbed.

The Post-Offence
    Conduct

[38]

On May 21, 2008,
    Kim Moncion went to the appellants house to see how he was doing.  She told
    him that she had spoken to her mother about his visit to her house the previous
    Thursday night.  The appellant told Ms. Moncion not to tell anyone that he had
    been at her home that (Thursday) evening.

THE GROUNDS OF APPEAL

[39]

The appellant advances
    three grounds of appeal.  One alleges a deficiency in the trial judges charge
    to the jury.  The other two claim errors in the admission of evidence.  I would
    paraphrase the grounds of appeal as these:

i.

failure to give the jury a
Vetrovec
caution in connection with
    the testimony of Kim Moncion;

ii.

admission of hearsay statements of the deceased expressing her fear of
    the appellant and the reasons for that fear; and

iii.

admission of evidence of the appellants controlling and demeaning
    behaviour during his marriage to Carolyn that invited jurors to engage in
    propensity reasoning.

[40]

Each ground
    warrants separate consideration and requires supplementary background
    information to cast it in its proper light.

Ground #1:  The
Vetrovec
Caution

[41]

Counsel for the
    appellant at trial sought, but failed to persuade the trial judge to include in
    his final instructions a
Vetrovec
caution in connection with the
    testimony of Kim Moncion.  The appellant reinvigorates that argument here.  He
    contends that this omission was a legal error sufficiently grave to require a
    new trial.

[42]

To appreciate
    the nature of the argument advanced on the appellants behalf, some further
    background is necessary.

The Statements of Kim
    Moncion

[43]

Investigators
    first interviewed Kim Moncion one week after the Thursday evening on which the
    appellant had come to her house.  She told the investigators that she had
    spoken to the appellant on the telephone on Thursday evening after her
    estranged husband and his girlfriend had left her home.  She admitted that she
    called the appellant twice on his cell phone after he had left her house.  The
    appellant did not answer her phone.  Ms. Moncion went to bed, she said, around
    10 p.m.

[44]

Kim Moncion
    explained that she told the police about the telephone calls during her first
    interview because she assumed the police could check her phone records.  She
    did not tell police that the appellant had been in her home.  Ms. Moncion
    explained that she did not tell police everything because she was afraid that the
    information she had would not be enough to put the appellant in jail.  She was
    concerned that she too would go to jail because she failed to call the police
    to try to prevent what occurred after she looked for a key to her gun cabinet
    at the appellants request.

[45]

On June 16, 2008,
    investigators asked Ms. Moncion to come to the police station for a second
    interview.  She intended to repeat her earlier version but changed course when
    an officer told her that someone had told them that the appellant had been at
    her home on Thursday evening.  Ms. Moncion then admitted that the appellant had
    been at her home that night.  She apologized and explained that she did not
    know whether he did it and was afraid to tell police everything she knew.
    She remained concerned about her own jeopardy but had no intention of ever
    disclosing to them all the information she had received from the appellant.

[46]

About 10 days
    later, during her third police interview, the officers suggested to Ms. Moncion
    that they believed that she was not being completely truthful with them.  They
    suggested that she was protecting the appellant and reminded her that she had
    already lied for him.  The officers told her that by continuing her alignment
    with the appellant she was obstructing them and digging herself in deeper.

[47]

During this
    interview, Ms. Moncion thought she needed to start being truthful with the
    police.  In answer to their question, Ms. Moncion told the investigators about
    the appellants remarks earlier in their relationship that it would not be
    difficult to have someone murdered, comments she associated with a discussion
    they were having about their ex-spouses.  She took the remarks as joking.  She
    never raised the subject with him again either before or after the killing of
    the deceased.

[48]

When the
    interview of Ms. Moncion resumed after a brief respite, the officer asked why
    she had called the appellant twice on his cell phone after he left her home on
    Thursday evening even though she claimed to have been very tired.  She then
    told police about the ATV on the appellants truck trailer, and his disclosure
    to her that he had seen Carolyn and Tony packing for camp earlier that day.  The
    following day she told police about the appellants comment that he had a gun
    in his truck and his request to see her guns.  She didnt tell the police about
    the guns during her earlier interview because she was afraid she would end up
    in jail if she told them she was stupid enough to try to give the appellant
    a gun.

The Trial Judges
    Ruling

[49]

Counsel for the
    appellant asked the trial judge to include in his charge a
Vetrovec
warning
    in connection with Kim Moncions evidence.  Counsel acknowledged that Ms.
    Moncion was not someone who would classically be considered a
Vetrovec
witness.  She had no criminal record.  She was not a person with a bad general
    reputation or a reputation for being untruthful.  But her testimony was
    critical to the case for the Crown.  She had a motive to lie  to avoid
    criminal prosecution  and her ultimate version of events emerged from police
    pressure and suggestion.  She had made several inconsistent statements.

[50]

The trial judge
    declined to include a
Vetrovec
caution in connection with Kim
    Moncions testimony.

The Arguments on
    Appeal

[51]

For the
    appellant, Mr. Dawe acknowledges, as he begins, that whether to include a
Vetrovec
caution resides within the discretion of the trial judge, a discretion informed
    by two controlling factors: the importance of the witness evidence to the
    Crowns case and the credibility of the witness.

[52]

Mr. Dawe says
    that rather than focus on these factors, the trial judge fastened exclusively
    on Ms. Moncions personal history, admittedly not the stuff of most
Vetrovec
witnesses.

[53]

Kim Moncion was
    a crucial witness for the Crown.  She provided the only evidentiary support for
    one basis of liability left to the jury  contracted murder under s. 231(3)
    and a significant foundation for the other  planned and deliberate first
    degree murder under s. 231(2).

[54]

Further, Mr.
    Dawe urges, Kim Moncion was an unreliable witness.  She repeatedly lied to
    police on critical, not peripheral issues.  She adopted, incrementally, details
    suggested to her by police.  Her various statements were internally
    inconsistent and motivated by an overweaning self-interest to avoid jeopardy.

[55]

For the
    respondent, Ms. Klukach underscores the discretionary nature of the decision on
    whether to include a
Vetrovec
caution in connection with a Crown
    witness.  She emphasises that it is only when the controlling factors coalesce across
    a certain threshold that a
Vetrovec
caution becomes mandatory.  To demonstrate
    error here, she says, the appellant must persuade us that a
Vetrovec
warning was mandatory.

[56]

Ms. Klukach
    submits that, although
Vetrovec
eschews a category approach in favour
    of a case-by-case analysis, some witnesses, like accomplices, jailhouse
    informants, and career criminals command a
Vetrovec
warning.  These
    witnesses, an amoral collection, can appear honest and credible to the
    untutored, thus the imperative to warn.  Simply put, Kim Moncion was not of
    this stripe.

[57]

Ms. Klukach
    resists the claim that the testimony of Kim Moncion was essential to the case
    for the Crown.  Lacey Carroll gave evidence about the trailer, ATV, and the
    appellants knowledge of the weekend trip by Carolyn and Tony to the camp.  The
    finding of the licence plate confirmed the trip.  The appellants remarks and
    inquiry about a gun added nothing to the evidence of the appellants motive,
    opportunity, and familiarity with the place where the killing occurred.

[58]

According to Ms.
    Kuklach, the credibility and reliability concerns associated with Ms. Moncions
    evidence did not require a
Vetrovec
caution in connection with her
    evidence.  She had no general reputation for untruthfulness and no prior
    involvement with the police.  The circumstances in which the details of her
    evidence emerged were fully explored and plainly apparent to the jury.
    Significant parts of her testimony were confirmed by other evidence.
    Considered as a whole, the instructions of the trial judge alerted the jury to
    the relevant concerns.  Nothing more was required.

The Governing
    Principles

[59]

To test the
    validity of this claim of error, it is necessary to recall the principles at
    play when a trial judge is asked to include a
Vetrovec
caution in the
    charge to the jury.

[60]

First, at least
    as a general rule, whether the testimony of a Crown witness should be subject
    to a
Vetrovec
caution lies within the discretion of the trial judge.
    After all, the trial judge is an eyewitness to the testimony of the witness and
    the temperature of the trial proceedings:
R. v. Vetrovec
, [1982] 1 S.C.R.
    811, at p. 823;
R. v. Bevan
, [1993] 2 S.C.R. 599, at pp. 610-11 and
    613;
R. v. Brooks
, 2000 SCC 11, [2000] 1 S.C.R. 237, at paras. 1-2;
    and
R. v. Mariani
, 2007 ONCA 329, 220 C.C.C. (3d) 74, at para. 24.

[61]

Second, as the
    parties acknowledge, two factors occupy a position of prominence in a trial
    judges decision about whether to include a
Vetrovec
caution about the
    testimony of a Crown witness in final instructions: the credibility of the
    witness and the importance of the witness evidence to the case for the Crown:
Brooks
,
    at para. 4.

[62]

Where a witness
    evidence occupies a central position in the demonstration of guilt, yet may be
    suspect because of a disreputable and untrustworthy character, a clear and
    sharp warning  a
Vetrovec
caution  may be appropriate to alert the
    jury to the risks of adopting the evidence without more:
Brooks
, at
    para. 3.

[63]

But where the
    evidence is important, but not dispositive of guilt, and where the evidence of
    the witness merely furnishes additional support for the prosecutions case, a
Vetrovec
warning may not be required and its absence confirmed on appellate review:
Brooks
,
    at para. 14.

[64]

Third, in
    assessing the credibility of a Crown witness to determine whether to include a
Vetrovec
warning, a trial judge must not slot the witness into a particularized
    category.  Like jailhouse informants.  Or drug addicts.  Or
particeps

criminis
.
    Such an approach would be at odds with the flexible approach that
Vetrovec
mandates
    and a return to the categorical approach it rejects:
Bevan
, at pp.
    610-11;
Brooks
, at para. 3;
R. v. Khela
, 2009 SCC 4, [2009] 1
    S.C.R. 104, at para. 6; and
R v. Potvin
, [1989] 1 S.C.R. 525, at p. 557.

[65]

Rather, what a
    trial judge should do is direct his or her mind to the circumstances of the
    case and thoroughly examine the myriad factors that might impair the worth of
    the witness testimony:
Vetrovec
, at p. 823;
Brooks
, at
    para. 5.  Where the judge concludes that the witness can be trusted, no
Vetrovec
caution is necessary, regardless of whether the witness is an accomplice
    or a jailhouse informant:
Brooks
, at para. 5.

[66]

In addition,
    consistent with the flexibility that is the badge of
Vetrovec
, the
    fact that a witness seeks to avoid incarceration - and I would add, prosecution
     by testifying is a factor which
may
undermine credibility but, on its
    own, is not enough to require a
Vetrovec
caution:
Brooks
, at
    para. 10.

[67]

Finally, as a
    general rule, a trial judges discretion whether to include a
Vetrovec
caution in final instructions is to be accorded wide latitude and substantial
    deference on appellate review:
Brooks
, at para. 24;
Bevan
,
    at p. 614.

The Principles
    Applied

[68]

For several
    reasons, I would not give effect to this ground of appeal.

[69]

First and
    foremost, whether to include a
Vetrovec
caution in final instructions
    falls four-square within the discretion of the trial judge.  The exercise of
    that discretion, informed by a demonstrated understanding of and adherence to
    the governing principles, is entitled to substantial deference on appellate
    review.  The trial judge gave reasons that reflected an understanding of the relevant
    principles and a measured consideration of them, unadulterated by extraneous
    considerations, improper weighing or misapprehensions of the evidence.

[70]

Second, this is
    not a case, as are some, in which a
Vetrovec
caution was mandatory:
Bevan
,
    at p. 614.  Trial counsel for the appellant frankly acknowledged, as did Mr.
    Dawe on appeal, that Kim Moncion was not a typical
Vetrovec
witness.
    The usual indicia were absent.  She was not an accomplice.  She was not a
    jailhouse informant.  She was not a career criminal.  She was not a drug
    addict.  She did not have a history of psychiatric illness impairing
    reliability.  She did not seek tangible benefits.  She had no motive to
    incriminate the appellant.

[71]

Third, the
    evidence of Kim Moncion was important, but not essential to the case for the
    Crown.  It is true that her evidence that the appellant visited her house on
    the night of the killings enriched the case for the Crown by adding several
    details:

i.

that the appellant left his home after Lacey went to bed;

ii.

that the appellant was driving his Chevy Avalanche with his trailer and
    ATV in tow;

iii.

that the appellant had travelled in a direction away from his home and
    towards Thor Lake;

iv.

that the appellant claimed to have a gun in his truck; and

v.

that the appellant was heading to camp because tonight was going to be
    the night.

[72]

But the case for
    the Crown consisted of several items of circumstantial evidence.  Among those
    items were evidence of motive, opportunity, peculiar knowledge of the
    whereabouts of the deceased, familiarity with and access to the Thor Lake
    property and guns, and conduct afterwards that could be considered as the
    destruction of evidence linking him to the scene.

[73]

Apart altogether
    from the evidence of Kim Moncion, there was evidence adduced at trial:

i.

that the appellant had attached the utility trailer to his Chevy
    Avalanche earlier in the day of the killings and had revved up his ATV at his
    home;

ii.

that the appellant had bought gas for his truck around 7:30 on Thursday
    evening;

iii.

that the licence plate for the appellants trailer was found at the side
    of the road leading to the camp after the killings of the deceased;

iv.

that the appellants trailer was never seen again after Thursday evening
    and was not at his home early the following morning; and

v.

that the appellant had a motive and opportunity to kill the deceased, a
    knowledge of their whereabouts on Thursday evening, and the specialized
    knowledge of how to get to the isolated camp.

[74]

Further, even if
    the evidence of Kim Moncion were elevated to essential status, no authority
    compels inclusion of a
Vetrovec
caution on this basis alone.

[75]

Fourth, the
    factors that could be considered as relevant to impair the worth of Kim Moncion
    as a witness did not support the inclusion of a
Vetrovec
caution.

[76]

Kim Moncion was
    the appellants girlfriend.  She was gainfully employed.  She had no criminal
    record, for that matter, no involvement with the police.  She had neither drug
    nor psychiatric problems.  She was not charged with any criminal offence and
    had no motive to incriminate the appellant, a person with whom she was involved
    in a romantic relationship.

[77]

Reduced to its
    essential features, the circumstances invoked as sufficient to require a
Vetrovec
caution relate to the manner in which the final account of Kim Moncion
    developed through her various police interviews.  These circumstances were
    fully explored during cross-examination at trial and are routine fare for
    jurors to evaluate.

[78]

The rationale
    that underpins a
Vetrovec
caution originates in the concern that, for
    certain types of witnesses, lay members of the jury simply lack the critical
    experience to adequately gauge the credibility of these types of witnesses and
    the reliability of their evidence:
R. v. Sauvé
(2004), 182 C.C.C.
    (3d) 321 (Ont. C.A.), at para. 81;
R. v. Welsh
, 2013 ONCA 190, 115
    O.R. (3d) 81, leave to appeal to S.C.C. refused, (#35533, December 12, 2013), at
    para. 207.  No such concerns emerged in connection with the testimony of Kim
    Moncion.  To conclude in the circumstances of this case that a
Vetrovec
caution
    was mandatory for the evidence of Kim Moncion would be to countenance a
    resurrection of the ossified rule interred over three decades ago by
Vetrovec
.

[79]

What is more,
Vetrovec
cautions do not always enure to the benefit of an accused.  A frequent
    component of a
Vetrovec
instruction is an illustration of the types of
    evidence that are capable of confirming the testimony of the
Vetrovec
witness.  Illustrations in this case could have included Lacey Carrolls
    evidence about the trailer and ATV and the finding of the licence plate from
    the never-to-be-seen-again trailer on a road near the camp.  These
    illustrations would not have assisted the appellant.

[80]

A final point.
    The trial judge devoted several pages of his charge to the evidence of Kim
    Moncion.  He reminded the jury about, and pointed out, the several
    inconsistencies in the substance of her statements.  He pointed out that she
    admitted lying to the police and explained why she did so.  He reiterated the
    jurys obligation to determine the extent to which they would rely on her
    evidence in reaching their verdict.  The instructions adequately equipped the
    jury to perform its task.

Ground #2:  The Statements of the Deceased

[81]

The second
    ground of appeal takes issue with the trial judges decision to admit evidence
    of what the deceased told several witnesses about her fear of the appellant and
    the nature of their relationship as their marriage came undone.

[82]

A few broad
    strokes of background will suffice to set this claim of error in its context
    and permit an assessment of its validity.

The Statements

[83]

In general terms,
    the statements of the deceased admitted in evidence through the testimony of
    their recipients comprise two broad categories.  The first group consists of
    statements in which the deceased recounts her fear of the appellant but does
    not explain the basis for that fear.  The second category includes statements
    that describe the appellants words or conduct that underpin the deceaseds
    fear of him.

[84]

At trial,
    counsel for the Crown invoked both the common law state of mind exception and
    the principled approach to support the case for admissibility.

The Ruling of the
    Trial Judge

[85]

The trial judge
    admitted some of the deceaseds statements as evidence, but excluded others.

[86]

The trial judge
    invoked the common law state of mind exception to the hearsay rule to admit
    evidence of the fear expressed by the deceased of the appellant.  These
    expressions of fear, the trial judge reasoned, afforded evidence of the nature
    of the relationship between the couple, thus of the animus the appellant bore
    the deceased.  And animus, like motive, was a piece of circumstantial evidence
    that was relevant to the identity of the appellant as the killer of the
    deceased, and to the state of mind that may have accompanied the unlawful
    killing.

[87]

The trial judge
    also admitted evidence of the statements of the deceased under the principled
    exception to the hearsay rule.  Necessity was established:  the deceased was
    dead.  The trial judge was satisfied that the circumstances in which the
    statements were made, coupled with other evidence that confirmed the truth of
    the content of those statements, established their threshold reliability.

The Arguments on
    Appeal

[88]

For the appellant,
    Mr. Dawe contends that the trial judge erred in finding that the reliability
    requirement of the principled exception had been met.  The hearsay dangers of
    perception, memory and credibility overlay this evidence.  The statements were
    conclusory, lacked detail, and were not contextualized by the recipients so
    that the jury could evaluate their true probative value, if any.  Some involved
    extrapolations by the declarant from a single event or perception to an
    assertion of invariable conduct.  Other statements were amorphous, bereft of
    any detail.  The nature of the threats was never disclosed.  In one instance,
    that of Ms. Carrier, the recipient reported details or information that the
    declarant never mentioned to her closest friends, counsellors, or even her
    lawyer in the acrimonious matrimonial litigation.

[89]

Mr. Dawe
    advances two arguments in connection with the deceaseds statements admitted
    under the state of mind exception to the hearsay rule.  The first has to do
    with the admissibility decision, the second with the judges instructions to
    the jury about their use of the evidence in reaching a verdict.

[90]

Mr. Dawe says
    that in balancing the probative value of the deceaseds statements against
    their prejudicial effect, the trial judge failed to take into account that the
    appellant did not advance a third party suspect defence, and thus the
    statements of the deceased could not be admitted to rebut such a claim.
    Further, the trial judge failed to properly evaluate the inflammatory potential
    of evidence that included the declarants prediction of her own death.

[91]

Mr. Dawe argues
    that even if the evidence was properly admitted, the trial judges instructions
    about its use were inadequate.  The instructions did not extend to all the
    evidence or explain to the jury the steps in the analysis from the state of the
    deceaseds mind, to the motive of the appellant, to the appellants involvement
    in the deaths of the deceased.

[92]

For the
    respondent, Ms. Klukach says that the appellants complaint about the trial
    judges reliability finding mistakes ultimate reliability for threshold
    reliability.

[93]

A party who
    seeks to admit hearsay evidence need not eliminate all possible hearsay dangers
    to satisfy the reliability requirement.  For this would be to impose a
    requirement of ultimate reliability as a prerequisite to admissibility.  The party
    need only show that the trier of fact has the necessary tools available to it
    to evaluate the worth of the evidence.  This burden can be discharged by demonstrating
    that the circumstances in which the statements were made reduce the hearsay
    dangers to a point at which the trier of fact could test the reliability of the
    statements without the personal appearance of the declarant.  This is threshold
    reliability.

[94]

Ms. Klukach says
    that the trial judge began with a rule of presumptive inadmissibility, then
    articulated, in an unexceptional way, the requirements that must be met to
    engage the principled exception.  He concluded that the deceaseds statements
    were made in circumstances that satisfied the threshold reliability
    requirement.  The declarants statements about being followed were made to her
    close friends spontaneously and contemporaneously with the appellants
    conduct.  The statements included an appropriate degree of detail and, in some
    instances at least, were confirmed by other evidence.  The statements reporting
    threats were equally spontaneous and contemporaneous with the appellants
    conduct and confirmed by other evidence and events.

[95]

Ms. Klukach
    submits that the trial judge was right to admit several of the deceaseds
    statements under the state of mind exception to the hearsay rule.  The
    statements admitted on this basis fairly reflected the deceaseds then
    contemporaneous state of mind and afforded evidence on the basis of which the
    jury could infer an animus or motive on the part of the appellant to kill the
    deceased, or at least the declarant.

[96]

Further, Ms.
    Klukach continues, the trial judge demonstrated a lively understanding of the discretion
    to exclude otherwise admissible evidence.  He concluded, correctly, that the
    probative value of this evidence exceeded its prejudicial effect and he was
    right to admit it.  In addition, he explained the permitted and prohibited uses
    of this evidence in his final instructions and made it plain that the jury must
    not use the evidence for any prohibited purpose.

The Governing
    Principles

[97]

The parties
    occupy common ground on the principles that govern the exceptional admission of
    hearsay evidence.  They part company, however, on the result that the
    application of those principles mandates for the statements of the deceased in
    this case.

[98]

The issues
    raised and to be resolved here do not warrant an extended foray into the
    hearsay thicket.  Some brief reminders are sufficient.

[99]

The rule
    excluding hearsay is a well-established exception to the general rule or
    principle of the law of evidence that all relevant evidence is admissible:
R.
    v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 2 and 34.  When
    the hearsay objection is pertinent, we begin from a presumption of
    inadmissibility.  It falls to the proponent of the evidence to satisfy the
    trial judge that the proposed evidence satisfies the prerequisite of a listed
    exception or meets the twin criteria of necessity and reliability:
Khelawon
,
    at para. 2.

[100]

The trial judge acts as a
    gate-keeper in determining whether hearsay, tendered for admission under a
    listed or the principled exception, qualifies for admission.  Under the
    principled exception, the trial judge assesses the threshold reliability of
    the hearsay statement.  The ultimate reliability, the ultimate determination of
    the worth of the statement as probative material, is for the trier of fact to
    determine:
Khelawon
, at para. 2.  The distinction between threshold
    and ultimate reliability is important and constitutes the difference between
    admissibility and reliance:
Khelawon
, at para. 3.

[101]

The central reason that accounts
    for the presumptive exclusion of hearsay statements is the general inability to
    test their reliability.  And so it is that under the principled exception the
    reliability requirement is aimed at identifying those cases where this
    difficulty is sufficiently overcome to justify reception of the evidence as an
    exception to the general rule of exclusion:
Khelawon
, at para. 61.

[102]

The reliability threshold is
    usually met in two different ways:
Khelawon
, at para. 61.

[103]

One way
[1]
to satisfy the reliability requirement is to demonstrate that there is no real
    concern about the truth of this statement because of the circumstances in which
    the statement came about:
Khelawon
, at para. 62.  But the reliability
    inquiry is not limited to the circumstances surrounding the making of the
    statement. In appropriate cases, it may extend beyond them and involve
    consideration of confirmatory evidence:
Khelawon
, at para. 4;
R.
    v. Singh
, 2010 ONCA 808, 266 C.C.C. (3d) 466, at para. 34.  The
    reliability requirement involves the assessment of all relevant factors, not
    their subdivision into those that have to do only with either threshold or
    ultimate reliability:
Khelawon
, at para. 4.

[104]

A deceaseds mental state may be
    relevant to an accuseds motive to commit an offence:
R. v. Griffin
,
    2009 SCC 28, [2009] 2 S.C.R. 42, at para. 60;
R. v. Moo
, 2009 ONCA
    645, 247 C.C.C. (3d) 34, at para. 98.  In a similar way, the state of the
    relationship between an accused and a deceased in a time leading up to the
    unlawful killing of the deceased may demonstrate animus and motive on the part
    of the accused, and thus be relevant to the identity of the deceaseds killer
    and the state of mind that accompanied the killing:
Griffin
, at para.
    61;
Moo
, at para. 98.  Statements of the deceased may afford evidence
    of the deceaseds state of mind and thus be relevant to prove a motive and
    animus:
Griffin
, at para. 61.

[105]

Proof of necessity and reliability
    or the conditions precedent of a listed exception to the hearsay rule removes
    the hearsay rule as an impediment to admissibility.  But it does not follow
    that the hearsay statements will be admitted.  Trial fairness factors  influence
    the ultimate decision on admissibility.  A trial judge has a discretion to
    exclude otherwise admissible hearsay evidence through the application of a cost-benefit
    analysis:
Khelawon
, at para. 49;
Moo
, at para. 95; and
R.
    v. Mohan
, [1994] 2 S.C.R. 9, at p. 14.

The Principles
    Applied

[106]

As I will explain, I would reject
    this ground of appeal.

[107]

To begin, recall the context in
    which the statements were made.  Carolyn Carroll had abandoned her marriage to
    the appellant.  She left their home.  She continued, more openly, a
    relationship she had begun with Tony Comeau as the Carrolls marriage began to
    unravel.  The appellant was well aware of this new relationship and he did not
    like it.  He was angry and jealous.

[108]

The statements or remarks of
    Carolyn Carroll admitted in evidence through the testimony of those to whom she
    spoke were spontaneous disclosures, contemporaneous with the events reported,
    and, for the most part at least, contained sufficient detail to permit a reasoned
    assessment of their probative worth by the trier of fact.  The circumstances in
    which they were made stamped them with sufficient reliability to warrant their
    admission.

[109]

Second, as noted above, it is well
    established that evidence of a deceaseds state of mind, as disclosed by his or
    her utterances prior to death, may be relevant to an accuseds motive or animus
    towards the deceased:
Griffin
, at para. 60;
Moo
, at para.
    98.  And in turn, evidence of motive or animus is relevant to the identity of
    the deceaseds killer and the state of mind with which the deceased was
    killed:
Griffin
, at paras. 61-63;
R. v. Pasqualino
, 2008
    ONCA 554, 223 C.C.C. (3d) 319, at para. 31;
Moo
, at para. 98.  In this
    case, evidence of the appellants motive or animus was also relevant to rebut
    defence suggestions that someone else, a third party, killed the deceased or
    that Tony Comeau, not Carolyn Carroll, was the killers primary target.

[110]

Third, the statements of the
    deceased admitted here, as reported by the recipients at trial, were at once
    spontaneous and contemporaneous with the events that were their genesis.  While
    not always expansive or brimming with the
minutiae
of a disintegrating
    relationship, the statements provided sufficient detail to permit a properly
    instructed jury to assess their worth.

[111]

Fourth, in large measure, the
    appellants complaints about the inadequate showing of reliability relate to
    ultimate rather than threshold reliability.  As proponent of otherwise
    inadmissible hearsay, Crown counsel need not eliminate all possible sources of
    doubt about the perception, memory or sincerity of the declarant.  All that was
    required in this case was that the circumstances in which the statements were
    made and any relevant extrinsic evidence provided the trier of fact with the
    means to critically evaluate the honesty and accuracy of the declarant:
R.
    v.
Blackman
, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 56;
Khelawon
,
    at para. 50;
R. v. M.(J)
, 2010 ONCA 117, 251 C.C.C. (3d) 325, at para.
    54.

[112]

Finally, the decision said to be
    wrong involved two findings made by the trial judge.  The first was that the
    circumstances in which the statement was made, supported by extrinsic evidence,
    satisfied the reliability requirement under the principled exception to the
    hearsay rule.  The second involved the application of a cost-benefit analysis and
    a determination that the probative value of the admissible hearsay exceeded its
    prejudicial effect.  In the absence of demonstrated error, both decisions are
    entitled to substantial deference at one remove in this court:
R. v.

Couture
,
    2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 81 and 132;
Blackman
, at
    para. 36;
Moo
, at para. 101; and
R. v. Polimac
, 2010 ONCA
    346, 254 C.C.C. (3d) 359, at para. 61.  No error has been demonstrated here.

Ground #3:  Evidence of Bad Character

[113]

The final ground of appeal also
    concerns the admissibility of evidence, but invokes a different exclusionary
    rule in support of the claim of error:  the prohibition against the
    introduction of evidence of other discreditable conduct by the person charged.

[114]

A brief reference to the nature of
    the evidence in issue and the trial judges reasons for permitting its
    introduction provide an adequate backdrop for the discussion that follows.

The Evidence

[115]

Crown
    counsel at trial sought to introduce a wide range of evidence that showed that
    the appellant was controlling in the marital relationship and mistreated his
    spouse especially in the late stages of the marriage.  The principal sources of
    this evidence were two close friends of Carolyn Carroll who were eyewitnesses
    to the conduct.

The Ruling

[116]

The trial judge excluded most of
    the evidence of extrinsic misconduct.  He excluded Marlene Lerouxs evidence
    about the appellants drug use, and about his possession and discharge of guns
    during the marriage.  Ms. Leroux was permitted to give evidence, however, that
    was relevant to establish motive, animus, the state of the marital relationship
    and harassment.

[117]

The trial judge followed a similar
    path of reasoning in connection with the testimony of Gail Boivin-Tremblay, a
    confidant of Carolyn Carroll, who provided her with emotional support prior to
    and during her separation from the appellant.  The trial judge excluded
    evidence that the appellant threatened to kill Carolyn Carroll by drowning her
    but did allow other evidence offered to prove motive, animus, and the nature of
    the marital relationship.

The Arguments on
    Appeal

[118]

For the appellant, Mr. Dawe
    submits that the trial judge should have excluded the evidence that
    demonstrated that the appellant was a controlling spouse who repeatedly
    demeaned Carolyn Carroll during their marriage.  This evidence, Mr. Dawe says,
    was of negligible probative value but laden with significant prejudice.  The
    Crowns case on animus and motive was generated by what occurred after the Carrolls
    separated.  And of this there was, admittedly, substantial evidence.  The
    evidence at issue added nothing on this score and showed the appellant as
    nothing other than a person of bad character.

[119]

For the respondent, Ms. Klukach
    acknowledges the general exclusionary rule and the prohibition against
    propensity reasoning as a pathway to proof of guilt.  She says, however, that
    in prosecutions for domestic homicide, Crown counsel may introduce evidence of
    the relationship between spouses since the nature of that relationship may
    assist in proof of animus or motive on the part of one spouse to kill the
    other.  Evidence of animus or motive is relevant to prove the identity of the
    deceaseds killer and the state of mind of the killer.

[120]

Ms. Kuklach contends that the
    evidence about which complaint is now made was relevant and admissible to
    establish animus and motive and supported the position of the Crown that the
    appellant was the killer and that the killings amounted to planned and
    deliberate murder.  In the end, Ms. Klukach adds, the trial judge strongly
    cautioned the jury against propensity reasoning.  This instruction was far more
    favourable than the direction to which the appellant was entitled and
    eradicated any potential prejudice that might have incidentally ensued from the
    reception of the evidence.

The Governing
    Principles

[121]

Two brief points worthy of notice
    emerge from the relevant authorities.

[122]

First, in cases of domestic
    homicide, evidence may be admitted during the case for the Crown, including
    evidence of extrinsic misconduct, that elucidates the nature of the
    relationship between the spouses.  This evidence may tend to establish animus
    or motive on the part of one spouse, and thus be relevant to prove that the
    killer of the deceased was the spouse with the animus or motive, rather than
    someone else, and that the killing was murder:
Moo
, at para. 98;
R.
    v. Cudjoe
, 2009 ONCA 543, 251 O.A.C. 163, at para. 64; and
R. v. Van
    Osselaer
, 2002 BCCA 464, 5 B.C.L.R.
    (4th) 73,
at para. 23.

[123]

Second, where extrinsic misconduct
    evidence is admitted to demonstrate animus or motive towards the very person
    killed, the usual caution associated with such evidence is not required:
Moo
,
    at para. 100;
Pasqualino
, at para. 65; and
R. v. Merz
(1999),
    46 O.R. (3d) 161 (C.A.), at para. 59.

The Principles
    Applied

[124]

For several reasons, this ground
    of appeal cannot succeed.

[125]

First, the evidence was properly
    admitted on the basis of a substantial and unbroken line of authority in this
    province.  Despite its incidental effect of showing that the appellant engaged
    in prior disreputable conduct, this evidence elucidated the nature of the
    Carrolls marital relationship.  The nature of that relationship was relevant
    to proof of animus or motive.  Evidence of animus or motive was relevant, in
    turn, to proof of the identity of the deceaseds killer and the legal character
    of the unlawful killing.

[126]

Second, the trial judge carefully
    considered where the balance settled between probative value and prejudicial
    effect.  His analysis reveals no legal or other error and is thus entitled to
    substantial deference from this court.

[127]

Third, even if the reception of
    this evidence reflects error, the limiting instructions the trial judge gave,
    which were unduly favourable to the appellant if the evidence were properly
    admitted, enjoined propensity reasoning and attracted no objection from trial
    counsel.

CONCLUSION

[128]

For these reasons, I would dismiss
    the appeal.

Released: January 2, 2014 (JL)

David Watt J.A.

I agree  John Laskin J.A.

I agree  S.T. Goudge J.A.

[1]
The second way, not applicable here, is to demonstrate that no real concern
    arises from the hearsay nature of the statement because, in the circumstances,
    its truth and accuracy can nonetheless be sufficiently tested:
Khelawon
,
    at para. 63.