COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Johnson, 2013
    ONCA 73

DATE: 20130206

DOCKET: C53934

Goudge, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Johnson

Appellant

Michael Dineen, for the appellant

Alison Wheeler, for the respondent

Heard: October 26, 2012

On appeal from the convictions entered on April 1, 2008
    by Justice David J. Stinson of the Superior Court of Justice, sitting with a
    jury.

Rouleau J.A.:

[1]

The appellant was convicted of armed robbery, unauthorized possession of
    a firearm, possession of a prohibited firearm with ammunition, possession of a
    prohibited device, and occupying a motor vehicle with a firearm. On appeal, he
    argues that the trial judge committed several errors in his charge to the jury
    and that, as a result, the convictions should be set aside and a new trial
    ordered.

FACTS

[2]

The appellant was alleged to have taken part in a group robbery of
    Clifford Campbell in the Driftwood Court area of Toronto. Campbell testified
    that, around 3:30 in the afternoon of April 18, 2005, he drove to Driftwood
    Court either to drop off or pick up a compact disc from a friend living there.
    When Campbell saw that his friends car was not there, he began to drive away.
    As he started to pull out of the parking lot, however, the driver of another
    vehicle gestured to him. As Campbell slowed down, his car was soon surrounded
    by six or seven men, three or four of whom were armed with black handguns. The
    assailants ordered him out of the car and he was forced to stand in a nearby
    field for a period of time. One of the assailants pointed a gun at his head and
    he was told not to return to the Driftwood area. After they left, Campbell
    discovered that they had stolen a number of items from his car, including a bag
    containing $10,000 in cash.

[3]

Campbell attended at the police station the next day and told the police
    that he had recognized one of his assailants as someone he knew called Jello.
    Campbell was shown a photo line-up and selected the photo of the appellant as being
    a photo of Jello. The photo line-up and his statement to police were
    video-recorded.

[4]

The following day, the police arrested the appellant while he was
    driving a car registered to his mother. The police searched the car pursuant to
    a search warrant issued later that day. They found a loaded handgun hidden in a
    secret compartment in the drivers side door. The gun was a black coloured
    Bryco nine millimetre semi-automatic pistol. The compartment in which it was
    located was covered by a wood panel and could not be detected by simple
    observations. The panel, however, was loose when touched and could be lifted to
    reveal the handgun.

[5]

Campbell testified at the preliminary inquiry and identified the
    appellant as one of the assailants who was armed with a black Glock handgun. Detective
    DiPassa later testified at trial that the Bryco nine millimetre semi-automatic
    pistol found in the secret compartment of the door is very similar in
    appearance to a Glock.

[6]

Campbell was vague and evasive about the source of the $10,000 in cash that
    was stolen. During examination-in-chief he claimed that he intended to use much
    of it to pay outstanding taxes and the rest to buy some things for his car. He
    repeatedly refused to answer where he had acquired the money, beyond saying
    that he had borrowed half of it from the mother of one of his children.

[7]

At trial, Campbell was again called as a Crown witness. He testified
    that although he had initially believed that he had recognized one of his
    assailants as Jello, he now believed this assertion to be a mistake. He
    explained that he came to realize his mistake because he had seen a lot of
    people who look similar to him and he had spoken to some of his friends who knew
    the appellant and those friends told him that the appellant was not one of the
    assailants. How these friends knew this, given that they were not present at
    the scene of the robbery, was not explained. According to Campbell these
    conversations with friends began before the preliminary inquiry and were
    ongoing.

[8]

Because Campbell recanted his identification of the appellant, the Crown
    was permitted to cross-examine Campbell on his preliminary inquiry evidence
    pursuant to s. 9(2) of the
Canada Evidence Act.
The trial judge also
    ruled that Campbells preliminary inquiry evidence could be adduced by the
    Crown for the truth of its contents pursuant to
R. v. B.(K.G.),
[1993] 1 S.C.R. 740
. As a result, Crown
    counsel read Campbells preliminary inquiry evidence into the record at the
    conclusion of Campbells trial testimony. The preliminary inquiry evidence was
    broadly consistent with Campbells account at trial with the important exceptions
    of familiarity with and identification of the appellant.

[9]

The Crown presented Campbell with the pictures and instructions from the
    photo line-up. Campbell identified them and confirmed the undisputed fact that
    he had picked out the photo of the appellant and identified him as Jello. These
    documents were then marked as exhibits at trial.

[10]

In
    his testimony, Campbell originally referred to Jello as a friend and as someone
    who grew up in the same neighbourhood as he did. Later, in cross-examination,
    Campbell denied that they were friends and stated that he had known him some 18
    years earlier when he was a youth counsellor in the Driftwood Court area.
    Campbell testified that he did not even remember what the appellant looked like
    back then and did not recall ever speaking to him. There was, however, very
    little in Campbells trial testimony that might explain how he came to correctly
    identify Jello from the photo line-up he reviewed the day after the offence.

[11]

During
    cross-examination at trial, the appellants counsel presented Campbell with a
    portion of his video statement to police. In the segment presented to Campbell,
    Campbell stated that he was unable to identify the assailant who entered the
    front passenger seat of his car. This version of events contradicted Campbells
    preliminary inquiry evidence in which he had stated that the person who entered
    the front passenger seat of his car was Jello. The appellants trial counsel
    suggested to Campbell that this inconsistency, and the fact that he would have
    been scared and intimidated as he was robbed by these armed assailants,
    suggested that Campbell mistakenly identified Jello. Campbell agreed and repeated
    that he had been mistaken when he told police that Jello was one of the
    assailants. When pressed further by the appellants trial counsel, Campbell
    stated that he lied at the preliminary inquiry when he identified the appellant
    as one of his assailants.

[12]

The
    trial testimony stood in stark contrast to the preliminary inquiry evidence
    read in at trial. In that evidence Campbell left no doubt that had recognized
    one of the assailants as Jello and that Jello was one and the same as the
    appellant. There was no suggestion in that evidence that his knowledge of the
    appellant arose solely from dated interactions with the appellant when Campbell
    had been a youth counsellor in the Driftwood Court area. The cross-examination
    at the preliminary inquiry did not suggest that this was a case of mistaken
    identity.

[13]

The
    Crown also called Officer Bragg as a witness at trial. He was the police
    officer who conducted the photo line-up with Campbell on the day following the
    robbery. Officer Bragg testified as to how the line-up was conducted and that Campbell
    had easily identified the photo of the appellant as being a photo of the person
    he knew as Jello. The portion of the video depicting the photo line-up was tendered
    as an exhibit at trial although the Crown made clear that it was not being
    tendered for its truth. The appellants trial counsel had objected to that
    portion of the video being entered at trial, but the trial judge ruled it
    admissible pursuant to this courts decision in
R. v. Tat and Long
(1997),
    35 OR (3d) 641.

[14]

With
    respect to the firearm charges, the appellants mother was called as a witness
    by the Crown. She testified that the Mercedes in which the gun was found
    belonged to her. It was the third vehicle owned by her and her husband. They
    paid the insurance on it and both of them sometimes drove it. She had never
    noticed the hidden compartment in the drivers side door. She testified that
    the appellant had located this car for her and had fixed it up in his auto
    shop. Although the appellant was the most frequent driver of the car, the car
    was also used by her younger son, Peter Johnson, and her step-son, Victor
    Kayode, who both lived with her at the time of the appellants arrest.

[15]

In
    final submissions, the Crown relied on Campbells preliminary inquiry evidence,
    arguing that it was the most truthful and coherent version of events. The Crown
    went on to argue that Campbells explanations for recanting were not believable
    nor consistent. He initially stated that he had become unsure of his
    identification and then later claimed that he had lied at the preliminary
    inquiry. The Crown referred to the video of the line-up as clearly showing that
    Campbell quickly and easily identified Jello as the appellant. This made it
    abundantly clear that Campbell knew and could recognize the appellant.

[16]

With
    respect to the firearm charges, the Crown relied on the circumstances of the
    arrest, the fact the panel was loose and that the appellant was the principal
    driver.

[17]

The
    appellants trial counsel took a two-pronged approach in his submissions.
    First, he attacked Campbells credibility. Campbell had admitted to lying, and the
    jury was left with conflicting testimony: the exculpatory trial evidence and
    the inculpatory preliminary inquiry evidence. It would therefore be unsafe to
    convict on conflicting evidence given by an acknowledged liar.

[18]

His
    second prong was to rely on Campbells testimony that, at the time of the
    robbery, he would not have had contact with the appellant for approximately 15
    years and had only had the opportunity to glimpse at his assailants. This passage
    of time, combined with the contradiction between his video recorded statement
    and his preliminary hearing evidence as to whether he could identify the person
    who had entered the right front passenger seat of the car, supported the
    appellants submission that Campbell simply made an error when he identified
    the appellant.

[19]

With
    respect to the gun offences, the appellants trial counsel relied on the fact
    that there were other drivers of the car and that two of these other drivers
    had unenviable records with respect to firearm offences.

ISSUES

[20]

The
    appellant raises three issues on appeal:

1.

Did the trial
    judge err by failing to instruct the jury that they could not use the video of
    the photo line-up for the truth of its contents?

2.

Did the trial
    judge err by failing to instruct the jury on the limited permissible use of the
    prior inconsistent statements put to the appellants mother in
    cross-examination?

3.

Did the trial
    judge err in failing to give the jury a
Vetrovec
warning concerning Campbells
    evidence?

[21]

For
    the reasons that follow, I would dismiss the appeal on all grounds.

(1)

Did the trial judge err by failing to instruct the jury that they could
    not use the video of the photo line-up for the truth of its contents?

(a)

Position of the
    parties

[22]

The
    appellant does not challenge the trial judges ruling that the video of the photo
    line-up was admissible in evidence. He argues, however, that the trial judge
    ought to have instructed the jury on the limits to its use.

[23]

Specifically,
    the appellant argues that the trial judge improperly listed the video as an
    exhibit that constituted evidence. In addition, the trial judge ought to have
    specifically instructed the jury that it could not rely on the video of the
    photo line-up for the truth of its contents.

[24]

In
    the appellants submission, there is a real possibility in the circumstances of
    this case that the jury could have rejected Campbells trial evidence as well
    as his preliminary inquiry evidence and then turned to the video of the photo
    line-up, finding it to be truthful and reliable independent evidence of
    Campbells identification of the appellant as one of the assailants.

[25]

As
    the appellant explains, Campbells preliminary inquiry evidence, in many
    respects, defies belief. For example, his explanation of how he came to be in
    the Driftwood Court area with $10,000 in cash is highly improbable. It is quite
    possible therefore, that the jury would have rejected it and relied on the
    video of the photo line-up to convict. The jury would have found it more
    persuasive as it was made only a day after the robbery and before Campbell
    started to have conversations with various people as to whether the appellant
    had in fact been present at the time of the robbery.

[26]

The
    Crown, however, submits that the jurys determination of what weight to ascribe
    to Campbells identification of the appellant in his preliminary inquiry
    testimony and to his trial evidence to the effect that the appellant was not
    one of the robbers was likely to turn on an assessment of the cogency of his
    explanations for why he had changed his mind, as well as an assessment of
    Campbells demeanour and certainty at the time he made the initial
    identification to the police. That would have been a completely legitimate use
    of the evidence of prior identification  using it to assess the weight of
    subsequent evidence, rather than using it as stand-alone, independent evidence
    of identification.

[27]

In
    the Crowns view, the trial judge was not required to give the jury a
    complicated instruction on the law of evidence and on the differences between
    evidence admissible for the truth of its contents, evidence admissible to
    assess the weight of other evidence, independent evidence and original
    evidence. In the circumstances of this case, the correct instruction on how the
    jury could use the evidence of prior identification, coupled with the
    instruction that both Campbells trial testimony and his preliminary inquiry
    testimony could be used as evidence of what happened, were sufficient to guard
    against misuse of the evidence of prior identification. Trial counsels lack of
    objection tends to support this.

(b)

Analysis

[28]

In
    my view, the trial judges jury instructions were adequate in the circumstances
    of this case and there is little danger that the misuse raised by the appellant
    would occur. As I will explain, this was an unusual case in that the video of
    the photo line-up served dual purposes of credibility and reliability. Importantly,
    however, the video did not introduce new facts or provide the jury with a
    version of events concerning Campbells identification of the appellant that
    was not already properly in evidence at the trial. The trial judges
    instruction advised the jury of the proper use they could make of the evidence
    and, although it may have been preferable for the jury to also have been
    cautioned not to rely on the video of the photo line-up for the truth of the
    contents, such an instruction was unnecessary in this case, for the reasons
    that follow.

(i)   Legal Principles

[29]

This
    courts judgment in
R. v.

Tat

and Long
provides that
    when a witness identifies the accused as the offender in court and testifies
    that he remembers identifying the same person in an out-of-court
    identification, the prior identification is admissible in support of the
    in-court identification made by that witness. (para. 35) In the present case,
    the trial judge admitted Campbells preliminary inquiry evidence for the truth
    of its contents pursuant to
R. v. B.(K.G.)
. The parties agree that the
    admission of Campbells preliminary inquiry identification evidence stood at
    trial as the equivalent of an in-court identification. The photo line-up
    evidence was thus admissible to support Campbells preliminary inquiry evidence
    pursuant to Tat.

[30]

When
    evidence of prior identification is admitted pursuant to the
Tat
principle, it is admitted as original evidence that assists the trier of fact
    in assessing the cogency of the witness in-court identification through a
    consideration of all of the process relating to that identification. In-court
    identification, standing alone, can have little probative value coming as it
    does in the structured setting of the court and often long after the alleged
    incident. Where the same identification had previously been made, soon after
    the alleged offence, that is relevant for the jury to consider in evaluating
    the in-court evidence. For this reason,
Tat
explains that the
    probative force of identification evidence is best measured by a consideration
    of the entire identification process which culminates with an in-court
    identification: para 36. This means that the trier of fact can use the
    evidence of prior identification to make an informed determination of the weight
    to be given to the testimony identifying the accused.

[31]

In
    this case, the parties agree that the video of the photo line-up could not be
    used for the truth of its contents and could only be used to assess the
    strength of Campbells preliminary hearing identification evidence. I will
    proceed on that basis.

(ii)  Application to the facts of
    this case

[32]

The
    video of the photo line-up served two distinct purposes in this case:

(1) It gave probative
    force to Campbells preliminary inquiry identification of the appellant as one
    of his assailants; and

(2) It assisted the
    jury in determining which of Campbells two contradictory statements was
    reliable and truthful: the identification at the preliminary inquiry or the
    recantation at trial.

I will deal with each of these in turn.

(1) It gave
    probative force to Campbells identification evidence of the appellant as being
    one of the assailants

[33]

Campbells
    trial testimony and preliminary hearing testimony was contradictory and left the
    trial record in a confused state. The evidence ranged from suggesting that the appellant
    was a friend that Campbell had immediately recognized at the time of the
    robbery to suggesting that the appellant was someone Campbell had never spoken to
    and had only seen, on occasion, in the neighbourhood Campbell lived in more than
    15 years earlier.

[34]

The
    appellants trial counsel argued in final submissions that, at the time of the
    robbery, Campbell was probably looking down and, out of a survival instinct,
    did not even get a good look at the assailant. This explained why it was
    entirely credible that, as Campbell testified at trial, he was mistaken when he
    testified at the preliminary inquiry that he had recognized Jello. Campbells error
    could be further explained by the fact that the appellant was someone he had
    not known for some 15 years.

[35]

The
    Crown, for its part, relied on Campbells unqualified identification of the
    appellant in the preliminary inquiry evidence and the evidence to the effect
    that the appellant was someone Campbell knew.

[36]

The
    video of the photo line-up was relevant and useful to the jury in assessing the
    cogency of the testimony and strength and accuracy of the identification
    evidence given by Campbell at the preliminary inquiry. The video gave the jury
    the opportunity to observe Campbells demeanour in making the contemporaneous
    identification.

[37]

The
    trial judges instructions to the jury were quite proper in this regard. After
    pointing out that Campbells evidence of identification was critical in this
    case and that Campbell had recanted, the trial judge instructed the jury that they
    may or may not find support for one or other version in the circumstances
    under which Mr. Campbell initially identified Mr. Johnson when he was
    interviewed by the police on April 19. In this regard, you may wish to consider
    Exhibit 1, the police photo line-up documentation, or Exhibit 17, the DVD of
    the line-up process. The charge clearly emphasized that the jury should
    consider it as part of their evaluation of the contradictory versions given by
    Campbell in evidence.

[38]

In
    these circumstances, there was simply no risk that the jury would have misused
    the video evidence when it considered it for this purpose. They would not have
    used it as stand-alone evidence of identification.

(2) It assisted the jury in determining which of
    Campbells two contradictory statements was reliable and truthful: the
    identification at the preliminary inquiry or the recantation at trial.

[39]

The
    jury had to assess credibility and decide which version of Campbells testimony
    was true. On the one hand, his preliminary inquiry testimony was read into the
    record. In that testimony, Campbell identified the appellant as one of the
    assailants and explained that Ive grown up there, so over the years Ive
    known him and I remember his face, I remember the events. On the other hand,
    at trial Campbell testified that he lied at the preliminary inquiry and explained
    that he didnt really know [the appellant] 18 years ago. Given Campbells
    contradictory evidence, the video of the photo line-up was relevant to the trier
    of facts assessment of his credibility. There were only two, mutually
    exclusive, propositions before the trier of fact: either Campbell was being
    truthful when he identified the appellant as his robber, or he was being
    truthful when he recanted at trial. The video of the photo line-up merely added
    probative force to the preliminary inquiry testimony. The video did not
    introduce any new facts. Rather, it was a visual reinforcement of the same
    identification of the appellant made by Campbell at the preliminary inquiry.

[40]

The
    video shows Campbell identifying the photo of the appellant as Jello. The
    relevant contents of the video are as follows: after being told by the
    supervising officer, If you recognize anybody from what happened, you can let
    us know, and the person or persons who committed the offence may or may not
    be in the photographs you are about to view, Campbell flips through the
    line-up photos. After reviewing all of the photos, he points to photo number
    three and states, This is the guy, this is Jello. Although it is implicit
    from the photo line-up procedure that Campbell is identifying the perpetrator
    of the robbery, there is no explicit statement that Jello is the perpetrator,
    nor any description of the alleged crime. Other than showing Campbells
    demeanour, the video is unremarkable.

[41]

The
    appellant argues that there is a danger that the jury relied on the videotape
    for the truth of its contents and used it as independent evidence of identity.
    He submits that an instruction was necessary to explain Campbells statement in
    the video line-up that the appellant was one of the perpetrators of the robbery
    could not be used for the truth of its contents. I disagree. The trial judges
    omission of such a direction did not give rise to the danger alleged by the
    appellant. I arrive at this conclusion for several reasons.

[42]

First,
    there is very little content in the video of the photo line-up. It depicts
    nothing other than Campbell selecting the appellants photo and stating that he
    is Jello, something Campbell also confirmed at trial. Although, as I have
    noted, it is apparent from the context that he was identifying someone involved
    in the robbery, this identification would be of little or no value absent his
    testimony at the preliminary inquiry. Other than Campbells demeanour, which the
    jury could properly take into account, the video contains nothing that was not
    otherwise properly in evidence for the jury to consider.

[43]

Second,
    the jury was instructed to consider and assess all of the evidence given at
    trial in reaching their decision. It would be illogical, therefore, for the
    jury to have considered and rejected Campbells identification of the appellant
    at the preliminary inquiry as supported by the video of the photo line-up only
    to then conclude that the video was sufficient on its own to support the conclusion
    that Campbells identification of the appellant as one of the perpetrator was
    truthful.

[44]

Third,
    the trial judge correctly directed the jury that Campbells trial testimony and
    his preliminary inquiry testimony could both be used as evidence of what
    happened. By contrast, they were not told that the video of the photo  line-up
    was evidence of what happened. Further, the instructions to the jury made it
    very clear that the circumstances of the initial photo line-up identification
    by Campbell could be used to see how much and how little it supports or
    contradicts what Mr. Campbell said when he testified at the preliminary inquiry
    or in his evidence at trial. The jury was left with a clear instruction that
    the circumstances of prior identification were simply a factor to be considered
    in assessing the identification evidence given at trial and at the preliminary
    inquiry. The jury would have understood that their task was to assess these two
    versions but that they could use the photo line-up video in doing so. In
    addition the jury was cautioned that they had to examine Campbells evidence
    very carefully before accepting and relying on it to prove that Mr. Johnson
    was one of the participants in the incident of April 18, 2005.

[45]

Fourth,
    counsels closing submissions and the trial judges instructions focused the
    jury on their central task, assessing which of the two version of Campbells
    evidence concerning his identification of the appellant was true and whether
    the Crown met its evidentiary burden. If, as the appellant alleges, portions of
    the preliminary inquiry evidence, such as Campbells statements about the
    source of the $10,000, were so improbable as to be rejected by the jury, the
    jury could still reasonably and properly reject those improbable portions of
    Campbells preliminary inquiry evidence and nevertheless accept the portion of
    the evidence identifying the appellant. A jury can accept all, none or part of
    any witness testimony.

[46]

Fifth,
    the case of
R. v. Campbell,
2006 BCCA 109 relied on by the appellant,
    is of little assistance to him. In
R. v. Campbell
, the witness had
    given an earlier description of the robber to an attending police officer. That
    description was at odds with the description given by the witness in court. In
    effect, therefore, the out-of-court description offered a distinct version of
    the witness identification which in some ways conflicted with the in-court
    identification. The trial judge relied on the out-of-court description for its
    truth and as independent evidence proving the accuseds identity. In allowing
    the appeal, the Court of Appeal explained that the trial judge could not reject
    the witness in-court description and choose to accept the different earlier
    out-of-court description as constituting substantive evidence of identity. That
    situation is quite different this case where the jury was presented with two
    statements, both of which were introduced in evidence for the truth of their
    contents: the preliminary inquiry identification of the appellant and the
    in-court recantation. The video of the photo line-up is simply a visual
    depiction of the identification Campbell made at the preliminary inquiry. It is
    not a third version of his story as to the identity of the perpetrator.

[47]

Finally,
    there was no objection at trial to the portion of the judges charge dealing
    with the videotape of the photo line-up. Trial counsels failure to object is
    not determinative, but it suggests that counsel were not concerned with the
    risk now raised on appeal.

(2)

Did the trial judge err by failing to instruct the jury on the limited
    permissible use of the prior inconsistent statements put to the appellants
    mother in cross-examination?

[48]

The
    appellants mother was cross-examined on statements she made to the police. In
    the appellants view, these statements were more advantageous to the Crown than
    her trial evidence. Specifically, in the statements put to her, it was
    suggested that the appellant had helped to pay for the car in which the gun was
    found and that she drove the car twice a month. The appellants mother did not
    adopt the statements and at trial testified that she drove the car twice a
    week. Because the statements were not adopted, they could not be used for the
    truth of their contents, but the trial judge did not instruct the jury about
    the limited permissible use of prior inconsistent statements.

[49]

I
    would not give effect to this ground of appeal. The trial judges failure to
    give a specific instruction did not, in my view, prejudice the appellant. The
    jury addresses and the charge to the jury correctly summarized Ms. Johnsons
    actual evidence about her use of the car and made no reference to the unadopted
    prior inconsistent statements. The defence did not object to the charge.

[50]

Ms.
    Johnsons prior statements had little bearing on the firearm charges and had
    nothing to do with the robbery charges. The Crowns case on the firearms
    charges turned on the cumulative effect of circumstantial evidence. Whether the
    appellant helped to pay for the car and whether Ms. Johnson drove the car twice
    a month or twice a week made little difference to the case for the Crown. The trial
    evidence did establish that the appellant was the primary driver of the car.
    The thrust of Ms. Johnsons evidence and the thrust of the submissions of the
    appellants trial counsel did not concern her use of the car but rather the suggestion
    that other people who used the car were more likely to possess illegal weapons.
    This suggestion is what, in the appellants submission at trial, should have given
    rise to a reasonable doubt. From the jurys verdict it is apparent that this
    suggestion was rejected.

(3)

Did the trial judge err in failing to give the jury a
Vetrovec
warning concerning Campbells evidence?

[51]

At
    the pre-charge conference, the appellants trial counsel sought a
Vetrovec
warning concerning Campbells evidence. He argued that such an instruction was
    warranted not only because of Campbells criminal record, but because Campbell
    acknowledged having lied under oath at the preliminary inquiry. The trial judge
    considered this, but determined that a
Vetrovec
warning was not
    necessary. The trial judge preferred to highlight the fact that Campbells
    evidence on the crucial issue of identification had changed and to direct the
    jury to be very cautious before accepting and relying on that evidence to prove
    the appellants participation in the alleged robbery.

[52]

The
    appellant argues that this warning was inadequate because, in
    cross-examination, Campbell clearly acknowledged that he had lied at the
    preliminary inquiry. It was apparent therefore that Campbell did not respect
    his oath and, in effect, was an admitted perjurer with a criminal record. This
    required a very clear warning.

[53]

I
    would not give effect to this submission. The jury was strongly cautioned about
    the dangers of relying of Campbells evidence. The content of cautions about relying
    on a witness testimony is within the trial judges discretionary authority and
    is subject to deference on appellate review. Campbell was not a classic
    unsavoury witness. He was not an accomplice and there was no evidence that he
    had a motive to favour the Crown when he testified at the preliminary inquiry.
    The trial judge properly explained to the jury why Campbells evidence had to
    be approached with caution. The trial judge also pointed out to the jury that
    they did not have the opportunity to see Campbells behaviour when he testified
    at the preliminary inquiry. Further, he cautioned the jury that they should be
    very cautious before relying on eye-witness testimony. Taken together, these
    instructions were sufficient.

[54]

Although
    Campbells recantation of his preliminary inquiry evidence logically leads to
    the conclusion that, at a minimum, he lied either at the preliminary inquiry or
    at the time of trial, this does not, in my view, require that a specific
    instruction on the seriousness of perjury be given. This was a somewhat unusual
    situation wherein Campbell gave evidence which at times incriminated, and at
    other times favoured, the accused. He was, as a result, a mixed witness. Taken
    in the context of the record, therefore, the trial judges warning that the
    jury should examine his evidence very carefully together with the other
    cautions was sufficient in the circumstances of this case.

CONCLUSION

[55]

For
    these reasons, I would dismiss the appeal.

Paul Rouleau J.A.

I agree S.T. Goudge
    J.A.

I agree David Watt
    J.A.

Released: February 6, 2013


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. Marshall, 2013
    ONCA 113

DATE: 20130221

DOCKET: C53702

Cronk, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lyle Andrew Marshall

Appellant

Rosario Romano, for the appellant

Mabel Lai, for the respondent

Heard and released orally: February 15, 2013

On appeal from the convictions entered on December 14,
    2010 by Justice John Kukurin of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was charged with ten offences arising out of conduct
    associated with a domestic dispute with his former wife, K.B.  He pleaded
    guilty to six charges of breach of recognizance and to one charge of theft
    under.  After a judge-alone trial, he was found guilty of the remaining charges
     sexual assault, uttering a death threat and breaking and entering K.B.s
    home. It is the convictions on these three offences that are the subject of
    this appeal.

[2]

Briefly, the facts are as follows.  On April 16, 2010, the appellant, in
    breach of a court order that he stay away from K.B.s home, went there and took
    H.B. for what has been referred to as an access visit.  Later that day, H.B. was
    returned to K.B. by the Childrens Aid Society.  On April 18, the appellant went
    back to K.B.s home.  K.B. testified that he broke in, sexually assaulted her,
    threatened to kill her and stole some of her belongings. The appellants
    evidence was that he was invited to K.B.s home, they engaged in consensual
    sexual intercourse, and later, during an argument, K.B. assaulted him.

[3]

The appellant raises two grounds of appeal.

[4]

First, he argues that the details of a telephone conversation between K.B.
    and the appellants step-mother should have been admitted as part of the evidence
    for the defence.

[5]

The trial judges decision not to admit this evidence was based on his
    finding that defence counsel had not complied with the requirements of s. 11 of
    the
Canada Evidence Act
.

[6]

In our view, the trial judge correctly held that K. B. had not been
    given the required degree of detail of the alleged inconsistent statement
    described by this court in
R. v. P.(G.),
(1996) 112 C.C.C. (3d)
.  The evidence the defence sought to
    elicit concerned a conversation in which it is alleged that K.B., through the
    appellants step-mother, specifically invited the appellant to her home
    ostensibly to return H.B.s diaper bag that had not been brought back with her
    on April 16.  Nowhere in this record was that important detail put to K.B.

[7]

The trial judge recognized that notwithstanding his finding of lack of
    compliance with s. 11 of the
Canada Evidence Act
, he had discretion to
    admit the evidence.  However, he declined to do so for reasons that included
    his view that the proposed evidence was of limited value and that there was no
    compelling explanation for non-compliance.

[8]

The trial judges exercise of discretion is reasonable and entitled to
    deference.

[9]

We would therefore not give effect to this ground of appeal.

[10]

Second,
    the appellant submits that the trial judge erred in his assessment of K.B.s
    credibility and that the verdict was thus unreasonable.

[11]

We
    find no error in the trial judges assessment of K.B.s credibility.  He acknowledged
    that K.B. was not a faultless witness and identified many of the concerns the
    appellant raised in argument.  He gave detailed reasons why, in the end, he
    accepted K.B.s version of events, an account, we note, that was supported by
    physical evidence. The trial judges determination of the significance of
    inconsistencies and related problems in the testimony of any witness, like any
    other matter going to credibility, must be given considerable deference on
    appeal.

[12]

Counsel
    for the appellant quite properly acknowledged that the argument of unreasonable
    verdict depended on our finding that the trial judges acceptance of K.B.s
    version of what happened at her home on April 18, amounted to reversible
    error.  Given our conclusion to the contrary, it is clear that there is no
    argument to be made that the verdict is unreasonable. We would therefore not
    give effect to this ground of appeal.

[13]

For
    these reasons the appeal as to conviction is dismissed.  We
    note that counsel for the appellant advised that the sentence appeal would not
    be pursued.

E.A. Cronk J.A.

Gloria J.
    Epstein J.A.

P. Lauwers J.A.