COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jackson, 2013 ONCA 445

DATE: 20130627

DOCKET: C49606

Rosenberg, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Jackson

Appellant

Timothy E. Breen, for the appellant

Roger A. Pinnock and Scott Latimer, for the respondent

Heard: January 17 and 18, 2013

On appeal from the conviction entered on March 2, 2007 by
    Justice M. R. Dambrot of the Superior Court of Justice, sitting with a jury.

Rosenberg J.A.:

[1]

The appellant appeals his conviction for first-degree murder following a
    trial before Dambrot J. and a jury. The single substantive issue in the case
    was identity. The prosecution alleged that the appellant executed Tyrone Downey
    on the dance floor of the Cheers Tavern in Toronto. The appellant relied upon
    an alibi, first disclosed at trial. He admitted that he went to Cheers just
    before the killing to purchase drugs, but testified that at the time of the
    killing he was in a taxi on the way back to another tavern, the Duke of York,
    where he had been earlier in the evening to attend a birthday party for his
    girlfriends mother.

[2]

While the appellant raises several grounds of appeal, the principal
    grounds concern the admissibility of evidence of the narrative of the police investigation,
    especially evidence adduced in reply, and the cross-examination of the
    appellant on his alibi.

[3]

The appellant submits that the evidence of investigative narrative,
    which included opinions and hearsay from the investigating officers, was highly
    prejudicial. He also submits that the cross-examination on his failure to
    disclose his alibi and statements made by Crown counsel during the closing
    address to the jury infringed on the right to silence. The Crown submits that by
    attacking the integrity of the police investigation, the defence made the
    impugned evidence of investigative narrative admissible. It submits that no
    prejudice was occasioned by the opinions of the police officers. The respondent
    also submits that no prejudice was occasioned by Crown Counsels
    cross-examination or his address to the jury.

[4]

For the following reasons, I would dismiss the appeal.

A.

THE FACTS

[5]

The following review of the evidence and description of how the trial
    unfolded is necessary to the proper disposition of this appeal.  One thing that
    is important to the context of this case is that many of the witnesses, like
    the appellant, either grew up in or were associated with the Regent Park and
    Donmount Court areas of Toronto.

[6]

In addition to the testimony of witnesses, the Crown relied on
    intercepted communications between the appellant and others. The appellant
    chose to testify in order to respond to the wiretap evidence. The Crown then
    sought to adduce reply evidence, partly in response to assertions made by the
    appellant in his testimony with respect to the integrity of the police investigation.

(1)

Evidence about the night of the shooting

[7]

In the early morning of Saturday September 6, 2003, Tyrone Downey was
    shot twice at the Cheers Tavern. The 911 call reporting the shooting came in
    just before 1:59 a.m. By chance, a surveillance team from the Guns and Gangs task
    force of the Toronto Police Service was keeping watch on the Cheers Tavern that
    night. Prior to the shooting, the officers noted a Lincoln Navigator registered
    to the appellants company circling the Tavern. A black male was driving the
    vehicle and a white male was in the passenger seat. The prosecutions theory
    was that the appellant was the passenger and the driver was his friend Paul
    Dookie. Hours after the shooting, Dookie, with the appellants girlfriend
    Lynzee Freeman, would attempt to retrieve the vehicle from where it had been
    parked near Cheers.

[8]

Around the time of the shooting, Detective Constable Jason Heard saw a
    man walking away from Cheers. This officer purported to identify the man as the
    appellant and claimed that he saw him leaving Cheers after the shooting, at
    2:00 a.m. The defence attacked both the accuracy of D.C. Heards identification
    and the time that he saw the appellant walking away from Cheers.

[9]

Several people who had been in Cheers at the time of the shooting
    described the shooter as a short white man with black hair. This general
    description was consistent with the appellants appearance. In addition,
    several people placed the shooter very close to R.T. Davis, an associate of the
    appellants.

[10]

Charity
    MacGillivray, who was one of those at Cheers on the night in question,
    testified at the preliminary inquiry but was unavailable for the trial. Her
    testimony was read in at the trial. Crown counsel read in her
    examination-in-chief and defence counsel read-in her cross-examination. At the
    preliminary inquiry, she testified that she grew up in the Donmount Court area
    and had known both the appellant and Davis since her teens. She began the night
    at the Duke of York with Davis and some others, but then went to Cheers.
    Sometime after arriving at Cheers, she saw the appellant. Later, she heard two
    shots and saw the deceased on the floor. She fled the tavern and went with some
    friends to an apartment. She then called Patrick Malcolm to come and pick her
    up.

[11]

In
    cross-examination, MacGillivray testified that on October 8, 2003, she gave a
    statement to Det. Sgt. Newton. She understood that the police came to see her
    because Malcolm told them that she had identified the appellant as the shooter,
    something that she denied. MacGillivray believed Malcolm had lied to the police
    to get their assistance with some outstanding charges he was facing.

[12]

One
    month after the shooting, Malcolm had in fact been arrested on drug charges. He
    said that he had information about the Cheers shooting and asked Det. Sgt.
    Skubic for assistance with those charges. He was released on a promise to
    appear after giving his statement.  He received a very lenient sentence
    following his conviction for possession of cocaine for the purpose of
    trafficking.

[13]

In
    cross-examination, MacGillivray testified that Det. Sgt. Skubic, the
    investigating officer, visited her and offered her witness protection. He also told
    her that if she did not tell the truth, she would be charged with perjury and
    obstruction of justice. She testified that the police offered me witness
    protection to label somebody. Defence counsel asked: To label Danny Jackson?
    She replied, Yes. She testified to her belief that Skubic believed the
    appellant was the shooter, wanted her to identify him, and believed that she
    was afraid to identify him. MacGillivray denied that she was afraid of the
    appellant. The appellant did not apply to the trial judge to edit out from the
    transcript any of the defence cross-examination of MacGillivray.

[14]

Patrick
    Malcolm testified at the preliminary inquiry but he too was unavailable at the
    trial. He testified that the day after the shooting, the appellant came to his
    home and asked him if he wanted to buy a gun. Malcolm declined.

[15]

Ryan
    Lancelotte grew up in Regent Park. He had a lengthy criminal record and was
    arrested on property offences just days after the shooting. Following his
    arrest, he told police that he had information about the Cheers shooting, passed
    on some rumours and was released on a promise to appear. He testified that a
    few days after he was released, he ran into the appellant. Lancelotte testified
    that, in the course of that conversation, the appellant told me he would get
    em. A few weeks later, Lancelotte was arrested again. At this time, he gave
    the police a statement in which he described the conversation he had with the
    appellant, and was released.

(2)

The appellants evidence

[16]

The appellant testified that he grew up in Regent Park. He knew the
    deceased but denied having a motive to kill him. The appellant gave an account
    of his whereabouts on September 5 and 6, 2003. His testimony was that he spent the
    morning with his common law spouse, Sabita Persaud, and their children. Around
    1:00 p.m. Persaud took the children in the Navigator to her fathers home. He
    denied driving the Navigator that day and in fact testified that he rarely
    drove it.  He usually drove his truck or one of several minivans registered in
    Lynzee Freemans name. Later that evening, Persaud called and said that Paul
    Dookie wanted to use the Navigator. The appellant agreed. He subsequently went
    out for the evening, taking one of the minivans.

[17]

At 11:40 p.m., the appellant arrived at the Duke of York for Freemans
    mothers birthday party. At some point, the appellant went outside and smoked
    his last joint of hash. He wanted more and so called Dookie, asking him to come
    to the Duke of York. Dookie refused because he was on his way to Cheers. The
    appellant left the Duke of York and took a taxi to Cheers, arriving between
    1:30 and 1:45 a.m. He found Dookie and obtained some hash from him. He asked
    Dookie for a ride back to the Duke, but Dookie declined. The appellant left the
    bar, walked to an intersection and found a taxi, which took him back to the Duke.
    He arrived at around 2:00 a.m. He and Freeman left the Duke around 2:30 a.m.
    and eventually ended up at her residence. He left Freemans residence at around
    5:00 a.m. and went home.

[18]

On
    the afternoon of September 6, 2003, Dookie called the appellant and told him
    that the Navigator was parked near Cheers and that there had been an incident,
    perhaps a murder. Dookie and Freeman attempted to retrieve the Navigator, and
    were interviewed by police, who were observing the vehicle. After Dookie told
    the appellant about his encounter with the police, the appellant came to
    believe he was a suspect in the shooting.

(3)

The investigative
    narrative

[19]

Det.
    Sgt. Skubic testified that by September 10, 2003, the appellant was a suspect
    in the Cheers shooting. Skubic attempted to speak to the appellant in the days
    following the shooting but, in a voicemail, was referred to the appellants
    lawyer.

[20]

Det.
    Sgt. Newton testified that she interviewed Charity MacGillivray as a result of
    information received from Patrick Malcolm. She described MacGillivray as very
    upset and anxious during the interview. Newton gave a similar description of
    her interview with another witness, Christopher Parker. Parker had also been at
    Cheers the night of the shooting and testified to seeing the appellant there.
    In cross-examination, Parker testified that Newton and another officer told him
    that they believed he was withholding information from them, and that he felt
    pressured to connect the appellant with the shooting.

[21]

Skubic
    testified that the police believed some 80 patrons were in Cheers at the time
    of the shooting.  In cross-examination, he testified that the police believed
    that witnesses from the Regent Park and Donmount Court areas were withholding
    information. Newton testified that none of the witnesses at Cheers came forward
    to offer information to the police.

[22]

On
    June 28, 2004, the police obtained an authorization to intercept the
    communications of the appellant and several other people. After the wiretapping
    began, the police contacted people associated with the appellant, hoping to
    stimulate conversation. They also interviewed the appellant himself, and told
    him that they were aware that his Navigator was found at the scene. In a
    subsequent conversation, they advised the appellant that they believed he had
    been at the Duke of York prior to the shooting.

(4)

The wiretap
    conversations

[23]

The
    Crown relied upon several intercepted communications between the appellant and
    others. The Crown alleged that several of the conversations could be interpreted
    as admissions by the appellant. In his testimony, the appellant provided an
    innocent explanation for these conversations. The content of some of the
    explanations given by the appellant formed the basis of the Crowns decision to
    call evidence in reply. Some of the intercepted phone calls are reviewed below.

[24]

In
    a phone call dated June 30, 2004, the appellant and his friend October Newton
    discussed threats she was receiving from the deceaseds girlfriend. In the
    course of the call, the appellant questioned why they were coming after her
    since they know that its just me. He then said: You know what happened to
    the last bully?  He met a bull.

[25]

The
    appellant denied that the bull was the deceased. He testified that he was
    referring to a Jameel Johnson, who he believed was responsible for shooting him
    on October 1, 2003, while he was driving out of the garage at his residence. Several
    months later, he noticed Johnson pursuing him and believed that Johnson wanted
    to kill him. The appellant was able to force Johnsons car into a wall. He
    testified that, as a result of the accident, Johnson was arrested and found in
    possession of two handguns and a bullet-proof vest. In cross-examination, it
    was suggested to the appellant that he had fabricated the Johnson story and
    that Johnson was never arrested with firearms.

[26]

In
    the course of this same call, Newton discussed needing a gun for protection.
    She was worried, however, about using a gun that she believed was dirty. The
    appellant promised her that the gun was clean and said: the other ones
    fishin. I aint a fool. The appellant testified that this conversation, too,
    had nothing to do with the Cheers shooting. He said that the gun they were
    discussing had been supplied by someone named Darryl McCann, who had been
    arrested in connection with the discharge of a firearm, and that Newton was
    worried that the gun in her possession had been used by McCann. The appellant
    testified that McCann had told him that he had disposed of the gun involved in
    that incident.

[27]

When
    this aspect of the appellants testimony was explored in cross-examination, the
    appellant testified that McCann had been arrested sometime in 2002 or 2003 for
    firing a gun. Relying on McCanns criminal record, Crown counsel suggested to
    the appellant that McCann pled guilty to careless storage of a firearm on
    November 8, 2004, and that at the time of this phone call, McCann had no record
    for firearms offences.

[28]

Subsequently,
    in the absence of the jury, Crown counsel told the judge and defence counsel
    that he had located the occurrence report for this offence, which showed that it
    related to an incident on August 19, 2003 when McCann allegedly had fired a gun
    from a car. When the jury returned, and with the consent of defence counsel,
    the trial judge instructed the jury that McCanns criminal record, as revealed
    in the questions put by Crown counsel, was not evidence; the Crowns
    suggestions were not accepted by the appellant and so were not proved.  The
    trial judges handling of this evidence forms one of the grounds of appeal.

[29]

Several
    of the intercepted phone calls discussed the events that occurred on the night
    of the shooting. In some, the appellant said that he had been at the Duke of
    York that night. In these conversations, he never mentioned that he briefly
    went to Cheers and was in a taxi returning to the Duke of York at the time of
    the shooting. The appellant testified that he suspected that the police were
    wiretapping his calls by this time; he did not want to disclose where he was
    when the murder took place because he believed the police would put pressure on
    people in order to discredit him.

[30]

In
    another call, it appeared that the appellant was coaching Freeman to say that
    he had been at the Duke of York the whole time. The appellant denied that this
    was a proper interpretation of the conversation. In still others, the appellant
    told Freeman and another person not to say anything about his whereabouts that
    night.

[31]

In
    a call dated October 9, 2004, the appellant and Freeman discussed being at the
    Duke of York on the night of the killing and being the last to leave, at about
    2:15 a.m. In this call, the appellant appears to be seeking Freemans help in
    getting witnesses from the Duke of York to support his alibi. The appellant
    denied this interpretation of the call.

[32]

On
    the first anniversary of the shooting, the police held a press conference and
    advertised a reward for information concerning the shooting. The following day,
    the police intercepted a conversation between Freeman and the appellant that
    could be interpreted as the appellants being concerned that another
    acquaintance, Jodie Rideout, would implicate him for the reward.  The appellant,
    in discussing this phone call, testified that he was concerned that the police
    would be able to purchase testimony implicating him in the murder.

[33]

The
    appellants distrust of the police came through in a number of other
    allegations he made against the police during his examinationin-chief. He
    believed that the police had provided contact information relating to several
    potential Crown witnesses to the deceaseds girlfriend. One of these witnesses
    claimed to have been threatened by the deceaseds girlfriend. In discussing his
    belief that Jodie Rideout had been offered a reward and witness protection if she
    would implicate the appellant, he likened the police to bullies who put words
    in peoples mouths. He had heard that the police were offering witnesses
    protection if they would label him. He testified that he lied on the telephone
    about his relationship with Freeman because he believed the police would
    disclose the relationship to his spouse, Persaud. He believed that, from very
    early on, he was the exclusive focus of the police investigation.

(5)

The Reply Evidence

[34]

During
    his cross-examination of the appellant, Crown counsel alerted defence counsel
    and the trial judge that he wanted to pursue three areas by way of reply
    evidence through Det. Sgts. Skubic and Newton. First, he wanted to lead
    evidence of what the police could have done had the appellants alibi been
    disclosed early enough for the police to investigate it. This would lay a
    foundation for a direction from the trial judge that the alibi was entitled to
    less weight. While the transcript is not entirely clear, it appears that
    defence counsel agreed that the best course would be to hear the evidence and
    then allow the trial judge to rule on whether the Crown was entitled to such a
    direction. Accordingly, Skubic and Newton testified as to investigative steps
    that could have been taken in respect of the alibi, such as checking taxi logs
    and cell phone records.

[35]

Second,
    Crown counsel wanted to cross-examine the appellant on, and possibly lead
    evidence of, the appellants prior contacts with Det. Skubic. The appellant had
    previously been a suspect in an attempted murder investigation and was cleared
    following an investigation by Skubic. The Crown sought to have the jury infer
    from this encounter that the appellant had no reason to distrust the police,
    especially Skubic. Defence counsel objected to this evidence, and the trial
    judge expressed considerable concern about it. In the end, it seems that Crown
    counsel abandoned this issue without a formal ruling from the trial judge.

[36]

Third,
    Crown counsel wanted to have Det. Sgt. Skubic testify as to the assertions of misconduct
    made by the appellant against the police investigation during his examination-in-chief.
    Crown counsel was permitted to call this evidence. Skubic denied providing any
    witness contact information to the deceaseds girlfriend. In fact, the deceaseds
    girlfriend was prosecuted as a result of a complaint by Freeman to the police. Defence
    counsel agreed that this was proper reply evidence.

[37]

Skubic
    also testified that neither Jodie Rideout nor Charity MacGillivray were offered
    a reward for information identifying the appellant. Because both women had
    provided statements before the reward was offered, they were ineligible. Skubic
    testified that MacGillivray was very frightened, and had been offered witness
    protection. He testified that:

We believed that she knew who the shooter was, and, in fact
    did tell Patrick [Malcolm], as he indicated to me in that interview, that the
    accused, Mr. Jackson, was the shooter that night.

[38]

Skubic
    testified that Jodie Rideout and Amanda Viggers were both offered witness
    protection. In Skubics opinion, both had crucial evidence and both expressed
    fear and anxiety about testifying. Both women were also charged with perjury. Skubic
    testified that he believed Viggers had told some of the truth but wouldnt go
    that next step and tell us the whole truth about what she saw that night.
    Skubic testified that he believed Rideout was also withholding evidence; she
    denied knowing the appellant when shown his picture in a photo array. In
    cross-examination, Skubic testified that these perjury charges had been
    withdrawn or stayed because the Crown had failed to meet its disclosure
    obligations.

[39]

Skubic
    testified that Sabita Persaud was charged with three counts of perjury, in
    charges unrelated to the Cheers shooting.

[40]

In
    cross-examination, Skubic testified that on February 24, 2004, Jameel Johnson
    was arrested for several firearms offences. The charges arose out of a routine
    traffic stop.

B.

THE GROUNDS OF APPEAL

[41]

The
    appellant raises the following grounds of appeal, which he submits led to a
    miscarriage of justice.

1.    The
    trial judge erred in permitting the prosecution to adduce evidence of the
    investigative narrative, particularly in reply, and that the appellant was
    prejudiced thereby.

2.    Crown
    counsel improperly attempted to use disbelief of the appellants alibi
    testimony as positive evidence of guilt.

3.    The
    appellant was improperly cross-examined on his alibi and his failure to
    preserve evidence corroborating his alibi, undermining his right to silence.

4.    The
    trial judge erred in failing to correct Crown counsels erroneous suggestion
    that McCann did not face gun charges at the time of the wiretap conversations.

5.    The
    trial judge erred in failing to direct the jury that a statement by an
    unidentified patron was admissible for its truth.

6.     Crown
    counsel improperly cross-examined the appellant on his lifestyle.

C.

ANALYSIS

(1)

The Investigative
    Narrative Evidence

a.

Evidence
    in the Crowns case in chief

[42]

The
    appellant submits that the effect of the investigative narrative evidence led
    in chief was to place before the jury the opinion that investigating officers
    believed the appellant was the shooter; that any number of people in Regent
    Park and Donmount Court knew that the appellant was the shooter, but were
    afraid to disclose the information; and that if witnesses had told the police
    what happened, the appellant would be effectively prosecuted.

[43]

To
    properly resolve this ground of appeal it is necessary to consider the
    narrative of the trial and review some of the Crowns evidence. In his very
    helpful submissions, Mr. Breen referred to various parts of the record which he
    says show that, from the outset of the trial, Crown counsel pursued a theory
    that people present at Cheers were reluctant to identify the appellant as the
    shooter. Two types of evidence are pointed to in this regard. First, the
    evidence of some of the witnesses who testified; second, evidence of the
    investigative steps by which witnesses were contacted and details about the
    wiretap authorizations.

(i)

Witness
    evidence

[44]

Troy
    Atkinson spoke with the deceased shortly before the shooting. The Crown led
    evidence that Atkinson had a criminal record, was from the Donmount
    Court/Regent Park area and had told the police on the night of the shooting
    that he did not see anything. He later came forward in response to a newspaper
    article that identified him as a person of interest in the case. His evidence
    at trial was that he saw the deceased fall straight back onto the floor, and a
    male standing over Downey who said how you like that. He did not see the
    shooter. In cross-examination, the defence elicited evidence that Atkinson knew
    the appellant from the neighbourhood and had not seen him that night at Cheers.
    In re-examination, the Crown counsel explored the nature of his relationship
    with the appellant; Atkinsons evidence was that the appellant was not a friend
    but [j]ust somebody I see around the bar. Defence counsel (not Mr. Breen) did
    not object to the examination or re-examination.

[45]

I
    can see nothing prejudicial with the line of questioning by Crown counsel, nor
    any attempt to create a sinister atmosphere. Given that the defence made Mr.
    Atkinsons non-identification of the appellant a live issue, the Crown was, within
    limits, entitled to explore Atkinsons knowledge of the appellant in
    re-examination. For the most part, the examination-in-chief merely laid out the
    narrative as to how he came forward.

[46]

The
    second witness to whom Mr. Breen referred the court was Christopher Parker. Parker
    testified that he saw the appellant in Cheers. Crown counsel led evidence that
    Parker initially did not identify the appellant when shown a photo array. Parker
    admitted that he did recognize the appellant at the time, but said that he did
    not identify him because he had [n]o way of helping him out in any way. In
    cross-examination, Parker admitted that at the preliminary inquiry he testified
    that he could not put the appellant in the bar prior to the homicide. He then testified
    that he could not be certain that the appellant was in the bar.

[47]

Again,
    there was no objection to the Crowns examination of this witness. I cannot see
    that this examination was improper in the circumstances. The examination does
    not support the theory that Crown counsel had embarked on an improper tactic.
    Parkers reluctance to identify the appellant arose out of reasons personal to
    him and, possibly, because he was simply not sure if the appellant was in
    Cheers that night. It was not improper for Crown counsel to lay before the jury
    the frailties in Parkers evidence.

[48]

Mr.
    Breen also referred the court to the evidence of Amanda Viggers. Viggers was
    with a group of friends, including R.T. Davis, first at the Duke of York and
    then at Cheers. She was present when the deceased was shot, but did not see the
    shooter. In examination-in-chief, Crown counsel asked her whether Davis hade made
    any comment about the shooting. Crown counsel asked her what he said and
    whether he spoke to the shooter. Defence counsel began to object to the
    question, and the trial judge himself quickly intervened. After the jury left
    the room, Crown counsel submitted that Davis had said he was talking to the
    shooter. The trial judge would not permit the question.

[49]

In
    my view, the examinationin-chief of these witnesses does not provide any
    evidentiary basis for the appellants claim that a theory about the publics
    lack of co-operation was put forward as positive evidence of his guilt.

[50]

There
    is no question that the cross-examination of Charity MacGillivray at the
    preliminary inquiry, including her testimony that she believed she was offered
    witness protection to label the appellant, included evidence that the police
    were questioning her in a manner that suggested she knew that the appellant was
    the killer. However, this evidence was led in cross-examination by the defence.
    Thus, it was the defence that potentially made this aspect of the investigative
    narrative relevant.  It did so to bolster the defence position as to why the
    appellant did not disclose his alibi and why he counselled others not to
    co-operate with the police. While some evidence about MacGillivrays demeanour
    when she was being interviewed was led in chief, there was no objection to this
    evidence. The tactical decision by defence counsel to pursue this line of
    questioning did not result in any miscarriage of justice.

(ii)

Evidence
    of investigative steps

[51]

During
    the Crowns case in chief, Det. Sgts. Skubic and Newton gave a narrative of their
    investigation, including how witnesses  such as Dookie, Persaud, Parker, MacGillivray,
    Viggers and Davis  were contacted. In some cases, as with Davis, the police
    had difficulty getting the witness to agree to an interview and give a
    statement. No objection was taken to this evidence. This evidence was, in my
    view, largely irrelevant. It was also relatively harmless. It demonstrates that
    potential witnesses to the killing did not want to be involved in the
    investigation. But the evidence does not go further and support the appellants
    position that the Crown laid an evidentiary foundation for the theory that
    eye-witnesses to the murder knew the appellant was the shooter but refused to
    identify him. Admission of this irrelevant evidence did not prejudice the
    appellant.

[52]

The
    Crown also led evidence from Skubic and Newton about how the wiretap
    authorization was obtained and executed. Skubic went into some detail about who
    was named in the authorization and why. It seems to me that this evidence was
    largely irrelevant. The fact that the police obtained an authorization was
    relevant, as it explained how it was that the prosecution could lead evidence
    of the appellants private conversations. The detail about the authorization
    process and the contents of the authorization, however, was unnecessary. But
    again, there was no objection to this evidence from the defence and I can see
    no prejudice to the appellant. It did not identify the appellant as the shooter
    or demonstrate that the witnesses knew more than what they were saying. At
    most, an inference could be drawn that the people named in the authorization
    may have had information about the shooting.

[53]

To
    summarize, while the prosecution led some unnecessary and irrelevant evidence
    of investigative narrative, that evidence did not prejudice the appellants
    fair trial rights. The potentially prejudicial evidence led through Charity
    MacGillivray was led by the defence, not the Crown, and was relied upon by the
    defence to support the appellants explanation for why he said certain things
    in the wiretapped conversations. The leading of this evidence was a reasonable
    tactical decision by the defence.

[54]

Ultimately,
    the appellants claim that the Crown attempted to lead evidence of a conspiracy
    of silence in the Regent Park/Donmount Court area of Toronto is, in my view,
    simply not supported by the evidence. At the end of the day, as the trial judge
    noted in the pre-charge discussion:

And in a sense the jury will probably agree that some people,
    not necessarily these witnesses, must have seen more in the bar than theyve
    told the police.  Its only logical that out of 80 or whatever people, somebody
    saw a little more than what weve heard or what the police were told.  So that
    wouldnt come as any big surprise to them.  And it probably wouldnt be a
    concern.

b.

The Reply
    Evidence

(i)

Reply
    evidence going to the appellants assertions of misconduct

[55]

Investigative
    narrative evidence was also led by the Crown in reply. As explained earlier in
    these reasons, Crown counsel wanted to call Det. Sgt. Skubic to deny the appellants
    allegations of misconduct. The ruling on that issue was short and came in
    response to submissions from defence counsel as follows:

[Defence counsel]:  And Your Honour, I dont want to speak for
    too long, but in essence, what Mr. Jackson is saying, rightly or wrongly, I
    dont trust the police.  I heard that Detective Skubic was not being fair to
    me.  Thats what he heard.  Its all rumour.  I cant, I am not in a position,
    I suppose, to prove that, but thats what Mr. Jackson felt.  And Im not trying
    to prove that.  Mr. Jackson had a state of mind based on his own makeup, based
    on all kinds of stuff that he might have heard, and he took, he is taking a
    position.  Im not saying that the officer is, is  well, Im gonna say some
    specific things about Charity MacGillivray and you know from evidence that we
    have before the court, and perhaps in relation to Chris Parker, because thats
    before the court.  But, Im not going to cast general aspersions at Detective
    Skubic.

THE COURT:        Well, you may not, and I understand that, but
    Mr. Jackson has.  Not general assertions, specific assertions.

[Defence counsel]: Yes.

THE COURT:        In relation to this investigation.  And I
    mean, I have no, I dont have a lot of doubt that the Crown would be entitled
    to call Detective Skubic in reply for him to deny --

[Defence counsel]: Yeah.

THE COURT:        -- the specifics that have been alleged.

[56]

Ordinarily,
    evidence of how the police conducted the investigation and interacted with
    various witnesses will be inadmissible because it is irrelevant to any issue in
    the case or may constitute hearsay. But, the conduct of the defence may make
    the evidence relevant and admissible. As this court held in
R. v. Van
,
    2008 ONCA 383, 92 O.R. (3d) 462 at para. 29,revd on other grounds, 2009 SCC 22,
    [2009] 1 S.C.R. 716:

As the defence attacked the integrity of the investigation, the
    Crown was entitled to lead evidence about the police investigation that
    included hearsay evidence as part of the narrative necessary to explain how the
    investigation proceeded.

[57]

Further,
    depending on the nature of the evidence led and the extent to which it is
    prejudicial, the trial judge will be required to give a limiting instruction
    referencing the inadmissible opinion or hearsay evidence, and the use the jury
    can permissibly make of the evidence: see
R. v. Van
, 2009 SCC 22 at para.
    33. For example, if the prosecution has been allowed to lead hearsay evidence,
    perhaps to explain why the police focused on the accused as opposed to other
    suspects, the jury will have to be told that the evidence was not admitted for
    its truth but simply to explain why the police did certain things. In other
    cases, no special instruction will be required because the limited use of the
    evidence will be obvious.

[58]

A
    simple example is Skubics reply evidence that the police did not provide the
    deceaseds spouse with private information about the appellants family. The
    jury would not need a special instruction as to the limited use of this
    evidence, since it was obvious why it was led. The Crown was entitled to meet
    the appellants allegation that the police investigation put his loved ones at
    risk and show it had not done so. Of course, the jury could still accept that
    the appellant really believed the police were unfairly targeting him and his
    family. But there was no reason for any special direction as to how use this
    evidence. Its use was apparent by reference to the Crown and defence theories.

[59]

The
    appellant submits that the reply evidence was not admissible to rebut an attack
    on the integrity of the investigation, because there was no such attack.
    Rather, the appellant was merely responding to the prosecution case as
    presented in the wiretap conversations: the appellant was entitled to explain
    why he did not co-operate with the police and urged others not to co-operate.
    Central to this explanation was the appellants belief that the investigation
    was biased; an attempt by the police to frame him. Mr. Breen submits that the
    reply evidence, to the extent that it disclosed that a reward was offered,
    witnesses were offered witness protection, and that Amanda Viggers and Jodie
    Rideout were charged with perjury, tended, in fact, to confirm this belief.

[60]

The
    trial judges opinion that the appellant did mount an attack on the integrity
    of the investigation beyond what was necessary to explain the wiretap
    conversations is entitled to deference. The trial judge had presided over a
    lengthy trial, had observed the examination and cross-examination of the
    witnesses and made interventions of his own when he was concerned about the
    direction some of the prosecution questioning was taking. He was in the
    preferred position to determine the tenor of the appellants defence. Provided
    there was a basis in the evidence for the trial judges opinion, it is not for
    this court to second-guess that decision.

[61]

In
    my view, there was an evidentiary basis for the trial judges holding that
    there was an attack on the integrity of the investigation. I will summarize
    several examples.

[62]

First,
    a wire-tapped conversation from September 7, 2004 between the appellant and
    Lynzee Freeman contained several references to Jodie Rideout from which it
    could be inferred that the appellant believed she had information, and that he
    wanted Freeman to keep Rideout from talking. In explaining this conversation,
    the appellant testified repeatedly that he had heard a rumour that the police
    had offered Rideout a reward to implicate me and a spot in the witness
    protection and I was just saying like if Jodie takes that money and says its
    me, when its not me, it  the truth will tell.

[63]

The
    appellant was entitled to explain that he had heard Rideout was going to
    falsely accuse him, that she had no evidence against him and that it would be
    wrong for her to lie and take the reward money and enter the witness protection
    programme. It was not necessary to his defence to allege that the police would
    counsel Rideout to commit perjury. The prosecution was entitled to meet that
    allegation by explaining how the reward and witness protection programmes
    operated. And, in a direction that I will set out in full below, the trial
    judge made it clear that these rumours were not admissible for their truth, but
    only to support the appellants belief.

[64]

A
    second example can be seen in a conversation between the appellant and Charlene
    Barr on September 16, 2004, in which the appellant referred to the reward.
    Instead of asking the appellant to explain the conversation, defence counsel
    asked the appellant how he felt about the reward. The appellant responded by
    saying that a reward is normal in a homicide investigation, but then went on to
    say that he had heard that police were offering witness protection to label
    me. In the same call, the appellant described a conversation between him and Skubic
    in which he accused Skubic of putting his height and description out to
    potential witnesses.

[65]

Finally,
    in a conversation on October 20, 2004 between the appellant, Lisa Freeman,
    Lynzee Freeman and Ginean Jackson (the appellants sister), the appellant
    discussed the fact that he had heard some women had been charged with perjury. Defence
    counsel again asked how he felt about that, to which the appellant testified:
    I felt that because they never said anything towards me that the police said,
    youre, well arrest you, you dont say, tell us stuff that its him, this and
    that, thats what I felt why those females got arrested. This was a gratuitous
    comment. It did not explain any of his behaviour or what he said in the
    wiretaps. The prosecution was entitled to meet the allegation that Viggers and
    Rideout had been wrongly charged with perjury because they would not falsely
    implicate the appellant in the shooting.

[66]

When,
    in discussing the same call, the appellant started to testify that Lynzee Freeman
    made a complaint about Violet Halliday, the deceaseds common-law spouse, the
    trial judge intervened to remind the appellant to answer the question asked.
    However, defence counsel then asked the appellant to explain why, in the same conversation,
    he told Lynzee Freeman not to refer to the deceaseds spouse by name but to
    call her some dumb bitch. The appellant responded by testifying that from the
    beginning he believed the police were giving out the address and telephone
    number of October Newton and the appellants sister Ginean. These answers were
    not responsive to the question. More importantly, once the appellant made this
    allegation, supposedly to support his reasons for providing a false alibi and
    counselling others not to co-operate with the police, the prosecution was
    entitled to show that these allegations were untrue. If they were, it made the
    appellants claim less credible. In any event, the allegations constituted an
    express attack on the integrity of the investigation.

[67]

As
    I have shown, in my view, there was an evidentiary basis for the trial judges
    conclusion that the appellant had attacked the integrity of the investigation.
    Thus, at least some of the investigative narrative that was led in reply was
    properly admissible, in particular, the following:

·

That the police did not provide private information about
    witnesses to Violet Halliday;

·

That Violet Halliday was charged by the police with assaulting
    and threatening Lynzee Freeman;

·

That rewards were not offered to people who had already provided
    statements to the police;

·

That the police did not offer rewards to people to implicate the
    appellant;

·

That witnesses were not pressured by the police to implicate the
    appellant and were not as part of this pressure offered a place in the witness
    protection programme.

[68]

All
    of this evidence was directly relevant to rebut the appellants attack on the
    integrity of the investigation. If the jury accepted the reply evidence, it
    made the appellants claim about his reasons for providing a false alibi and
    counselling other witnesses not to co-operate with the police less credible.
    The reason for the false alibi was a central issue in the case. Evidence to
    fairly rebut the appellants explanation was admissible in reply. Further, in
    my view, the trial judges directions to the jury concerning the use to be made
    of some of the investigative narrative were sufficient in the circumstances.

[69]

Two
    parts of the reply evidence should not have been adduced, however. As part of
    explaining why Charity MacGillivray was offered a place in the witness
    protection program, Sergeant Skubic explained that MacGillivray appeared very
    scared and disturbed.  He then went on to say this:

We believed that she knew who the shooter was, and, in fact,
    did tell Patrick [Malcolm], as he indicated in that interview, that the
    accused, Mr. Jackson, was the shooter that night.

[70]

Skubic
    then testified that he introduced the idea of witness protection to
    MacGillivray.

[71]

It
    was unnecessary to meeting the appellants allegation to introduce what Malcolm
    had said. If used for its truth, this was potentially prejudicial hearsay.
    There was, however, no objection to this evidence. This is not surprising since
    the defence had introduced the same evidence during its cross-examination of
    MacGillivray. Thus, the inadmissible reply evidence added nothing to what the
    jury already knew about MacGillivrays interactions with the police.

[72]

That
    the defence was the first to introduce the subject and did not object when
    Skubic returned to it in reply persuades me that the appellant was not
    prejudiced by the reference. This is confirmed by the pre-charge discussion, during
    which counsel discussed with the trial judge whether the trial judge should
    mention this exchange in his charge and give the jury a limiting instruction.
    Defence counsel agreed with the trial judge that no instruction was necessary:

[Defence counsel]:  And that wasnt evidence, certainly wasnt
    evidence at trial.  And it came out very quickly, and I am not even sure that
    its going to create any sort of - -

THE COURT:        The jury will remember it - -

[Defence counsel]: - - yeah.

THE COURT:        - - as well as I do, you think?

[Defence counsel]:
We might be highlighting it.  Thats
    always the problem when you raise these things
.

THE COURT:        I am going to tell them I have a little piece
    on hearsay,
which is mostly unspecific
, because weve
had lots of
- -

[Defence counsel]: Yeah.

....

THE COURT:        So I am going to tell them that thats why
    its there, but they cant use that for the truth of it, and I am going to say
    thats an example and there are others, so
if you want me to add in that
    Detective Skubic testified that based on the wiretap he had reason he thought
    that MacGillivray was not telling the truth, thats hearsay, too, and thats
    not something that they can rely on.

[Defence counsel]: Yes.

THE COURT:        Now, again, I mean, I dont know how much you
    want me to underline that, not that you want me to underline it; if you want me
    to say it, I am happy to say it.

[Crown counsel]:
The Crown position is if [defence
    counsel] wants it, Crowns in agreement
.  If [defence counsel] doesnt
    want it, Crowns in agreement.

[Defence counsel]:
Quite frankly, Your Honour,
    contemplating it, I think the general instruction is probably better
.

THE COURT:        Better

[Defence counsel]:
Highlighting it is perhaps the worse
    thing
.

THE COURT:        Yes.

[Defence counsel]:           Because I, [Crown counsel]
    mentioned it to me and I noticed it when it came up, but I wasnt really, I
didnt
    attach a lot of significance to it
.

[Emphasis added.]

[73]

In
    addition, when the trial judge reviewed MacGillivrays evidence he pointed out
    that she denied that she ever told Patrick Malcolm that she had seen the
    appellant do the shooting.

[74]

More
    troubling was Skubics testimony as to why Amanda Viggers and Jodie Rideout
    were charged with perjury. The appellant testified that he believed the police
    were using perjury prosecutions and witness protection as a way to persuade
    witnesses to falsely implicate him. In effect, Skubics reply evidence
    confirmed some of this theory. He testified as follows:

Q.      Weve also heard some evidence about Amanda Viggers.
    Was Ms. Viggers
ever charged with perjury
?

A.
Yes, she was
.

Q.      And can you tell us why?

A.      Ah, again, in the circumstances of this investigation,
    ah, I believe that
Amanda Viggers
was a witness who, ah,
told us
    some of the truth
.  Insofar as she was at Cheers and
she described the
    activities immediately
before the shooting.  Based on this investigation
    and all of the wiretaps and conversations that were intercepted.  I believe
    that she,
in fact, knew Mr. Jackson and just, ah, wouldnt go that next
    step and tell us the whole truth about what she saw that night
.

Q.      So what was the purpose of charging her at this point?

A.      The purpose of charging her?  She had provided a
statement
    to us under oath earlier
in this investigation and, ah, I had given her an
    opportunity, as I had with other witnesses, to go and obtain independent
    counsel, tell their lawyers everything that they saw and make, you know, an
    informed decision as to whether or not they wanted to participate in another
    statement.

Q.      Did Ms. Viggers take you up on that suggestion?

A.      I believe she contacted counsel, but she did not
    provide any further statement.

Q.      Was Jodie Rideout
ever charged
with perjury?

A.      Yes,
she was
.

Q.
And why
?

A.      Again, under the same circumstances.  Jodie Rideout was
a named party in this investigation
.  And based on the information we
    had received, ah, I believe that she was
withholding the truth from us
and when she provided us a
statement under oath
, uhmm, one of the
    things that is done with Jodie was she was shown, ah, a photographic line-up,
    and while
I believe that she knew Mr. Jackson, she failed to pick him out
    of a line-up simply as a person that she knew.  Not as a shooter, but just a
    person that she knew.  She denied knowing him
.

Q.      Were either
Amanda or Jodie
offered the
witness
    protection plan
?

A.
Yes, they were
.

Q.      And again, can you explain to us why they were offered
    to each of them specifically.

A.      Ah, again, the circumstances were the same I expect with
    all the witnesses.  There was, ah, in my opinion, they had crucial evidence
    with respect to the commission of this offence and they had, ah, expressed
    fear, anxiety, uhmm, with respect to testifying.  So that was again, an option
    available to them, uhmm, to consider whether or not they were going to continue
    and participate in the administration of justice and tell us the whole truth.

[Emphasis added.]

[75]

The
    Crown was entitled to meet the allegation that the prosecution was improperly
    using perjury prosecutions, but Skubics personal belief that the witnesses
    were lying and saw the appellant in Cheers went beyond meeting that allegation.
    That said, for the following reasons, any prejudice was relatively muted.
    First, Skubics evidence ended up bolstering the appellants testimony. It made
    his claim more credible, and his explanations for giving a false alibi and
    attempting to persuade witnesses not to talk to the police depended upon his
    credibility. Second, it could have come as no surprise to anyone at the trial
    that the police believed in the appellants guilt. Third, and again, the
    pre-charge discussion confirms that defence counsel was not concerned that the
    appellant was prejudiced by these comments:

THE COURT:        I dont remember mentioning it, but I do
    remember noting it in my mind.  But again, its, ah, I mean
I guess the jury
    knows and that the police felt that witnesses were not telling them the whole
    story
.

[Defence counsel]:
Yes
.

THECOURT:         And in a sense the jury will probably agree
    that some people, not necessarily these witnesses, must have seen more in the
    bar than theyve told the police.  Its only logical that out of 80 or whatever
    people, somebody saw a little more than what weve heard or what the police
    were told.  So that wouldnt come as any big surprise to them.  And it probably
    wouldnt be a concern.

The only thing is there was a specific mention of MacGillivray
    and the wiretaps.

[Defence counsel]: Mm-hmm.

THE COURT:        So, but I just, I doubt myself that that
    would have made an impression.

[Defence counsel]:          Mm-hmm.

THE COURT:
I would be inclined to think you are
    better with the general instruction than the specific
.

[Defence counsel]:
I agree
.

[Emphasis added.]

[76]

Finally,
    the trial judge gave a lengthy explanation about the use of hearsay evidence
    including the following:

So when you come to consider any of this hearsay evidence,
    remember that it may not be used to prove what is said in it, but it is used to
    help you understand other pieces of evidence.
You also heard a bit of
    evidence of a particularly unfair type of hearsay, and I do not mean you heard
    it unfairly in this trial, but it is evidence that would be unfair to rely on.
    That is, you heard a bit of evidence of rumour
.  You heard that people on
    the street, and particularly relatives and friends of Mr. Downey, were saying
    that Mr. Jackson was the shooter.
You heard that evidence because Mr.
    Jackson relies on it to show you why he knew or he concluded or he believed
    that he was a suspect early on in this case, and why he concluded, or part of
    why he concluded, that he was being wiretapped, and so he relies on that
    evidence to some extent to explain why he was so careful not to reveal anything
    about the Cheers shooting in his private communications.

You may not use the rumour evidence for any other purpose.
    In particular, you may not use it as evidence that Mr. Jackson committed the
    murder.
The fact that Mr. Downeys relatives or friends believed that he
    was the murderer is completely irrelevant to your consideration.  But you may
    use it for the purpose it was led, to help you understand what was in the mind
    of Mr. Jackson at that time. [Emphasis added.]

[77]

As
    has been repeatedly pointed out by this, and other, courts, attacking the
    integrity of a police investigation can be a hazardous tactic for the defence:
R.
    v. Mallory
, 2007 ONCA 46,
217 C.C.C. (3d) 266 at para. 85, citing
R. v. Dhillon
(2002), 166 C.C.C.
    (3d) 262 (Ont. C.A.);
R. v. Van
, 2009 SCC 22 at para. 46. Both counsel
    and the trial judge must be vigilant to ensure that the prosecution evidence in
    response does not overshoot the mark. The probative value of the evidence must
    outweigh its prejudicial effect. Depending on the nature of the evidence led, a
    limiting instruction may be required. In this case, I am satisfied that no
    special instruction about Skubics opinion was required, given the position
    taken by defence counsel. That position was a reasonable one to take and I see
    no basis for second-guessing trial counsels assessment of the prejudicial
    effect of the evidence.

[78]

Leaving
    aside these aspects of Skubics evidence, the appellants submission on the
    reply evidence really comes down to two propositions. The first is that there
    was no allegation of police misconduct that needed to be met in reply evidence:
    the appellant was merely responding to the Crowns case. I have explained above
    why, in my view, it was open to the trial judge to take a contrary view, and the
    trial judges view must be accorded considerable deference. He was at the trial
    from the beginning to the end. He saw how the case unfolded and how the defence
    strategy played out.

[79]

Second,
    the appellant submits that, in any event, the reply evidence simply confirmed
    the appellants belief that he was the target of a biased investigation.  There
    was no question that some parts of the reply evidence did confirm the appellants
    view of the investigation. But, it is difficult to see how admission of that
    evidence could prejudice the appellant since it assisted the appellants case
    by making his claim of a biased investigation more credible. Nevertheless, the
    appellant was not entitled to present a distorted picture of the investigation.
    For example, if the appellant wanted to allege that Viggers was charged with
    perjury because she would not falsely implicate the appellant, the prosecution
    was entitled to provide their explanation as to why Viggers was charged with
    perjury.

[80]

In
    my view, this case is similar to
Van
.  In that case, although the
    trial judge gave no limiting instruction respecting the investigative
    narrative, a majority of the Supreme Court of Canada found that the accused was
    not prejudiced. As the court said at para. 39:

Second, it must be conceded that Det. Sgt. Nealons statement
    of his opinion of the respondents guilt was unwarranted and clearly foreclosed
    by the jurisprudence, due to the danger of the jury uncritically accepting the
    witnesss opinion without drawing their own conclusions about the evidence (
e.g.
R. v. D.D.
, 2000 SCC 43, [2000] 2
    S.C.R. 275, at para. 49).
However, the expression of this opinion in the
    absence of a limiting instruction likely had an insignificant impact on the
    verdict in the context of Det. Sgt. Nealons testimony and the trial as a whole
.
    Detective Sergeant Nealon was relating to the jury the reasons for which he and
    his partner changed the focus of their investigation from known loan-shark
    enforcers to Mr. Van.  In so doing, it would be natural for him to suggest that
    he believed he was pursuing the appropriate leads by investigating Mr. Van.
It
    would come as no surprise to a jury that a police officer will investigate the
    person that he or she thinks is most likely to be guilty
.  Furthermore, the
    trial judge had instructed the jury at numerous points in his charge that it
    was their opinion of the evidence, and only theirs, that mattered.  I trust
    that they would have understood their role as primary fact finders at trial.
    [Emphasis added.]

(ii)

Reply evidence going to investigative steps that could have been taken
    to confirm the alibi

[81]

Skubic
    also testified in reply to steps he might have taken if the appellant had
    disclosed his alibi earlier. These included contacting taxi companies to see if
    they had a record of the appellant as he was travelling from The Duke of York
    to Cheers and then from Cheers back to the Duke of York, and contacting cell
    phone companies to see if they had records of the appellants calls to Dookie.
    This evidence was potentially relevant for two reasons. It would help meet the
    appellants claim that he did not reveal his alibi because the police would not
    honestly investigate it, and it would lay a foundation for a direction from the
    trial judge that the jury could draw an adverse inference from the appellants
    failure to provide his alibi at an earlier occasion. This evidence was fleshed
    out in greater detail in Det. Sgt. Newtons evidence. In the end, it became
    clear that by the time the appellant should have revealed his alibi, the
    evidence, such as records from the taxi companies, no longer existed. Thus, the
    trial judge ruled that the Crown was not entitled to an adverse inference
    direction.

[82]

In
    my view, this aspect of the reply evidence did not prejudice the appellant. As
    I have said earlier, while it is not entirely clear, it does appear that the
    procedure agreed to by the appellant was for evidence of the investigation of
    the alibi to be led during reply. The trial judge would then decide whether an
    adverse inference instruction was warranted. Defence counsel told the trial
    judge that he had a certain opinion of [the proposed reply evidence related to
    the late alibi] based on the summary [he had been given by Crown counsel]. He
    then went on to say: But I guess thats something we can deal with.

[83]

In
    the end, the trial judge decided not to give the instruction. Rather, he
    limited his instructions to explaining to the jury what evidence they could
    rely upon to draw the inference that the appellant attempted to create a false
    alibi, and what inference the jury could draw from such attempts.  He made no
    mention of the reply evidence concerning possible investigative steps to
    confirm or disprove the alibi.  Defence counsel did not ask for any special
    instruction, probably because the jury would understand from the
    cross-examination of Det. Sgt. Newton, that the appellant was not obliged to
    disclose his alibi until well after any useful steps could be taken.  Given
    that defence counsel agreed to the procedure adopted and that he did not object
    to the charge about this evidence, I am satisfied that its admission did not
    unfairly prejudice the appellant.

(2)

The trial judges
    directions on the false alibi

[84]

In
    related submissions, the appellant argues that the trial judge erred in his
    instructions with respect to the false alibi. In particular, the appellant contends
    that the trial judge erred in instructing the jury that the appellants
    testimony in court as to his alibi could be used as evidence of his guilt. This
    submission is not based on the trial judges legal instructions about the false
    alibi, but on Crown counsels jury address and that part of the charge in which
    the trial judge set out the position of the Crown. In his jury address, after a
    detailed review of the wiretap conversations relied upon by the prosecution to
    show that the appellant was creating a false alibi that he was at the Duke of
    York at the time of the shooting, Crown counsel said this:

Its all made up for this trial in an attempt to fit it in with
    what the Crown evidence has been. That alibi is just as false as the very first
    alibi about being at the Duke all night.
Both of his alibis have always been
    false. Why do people come up with false alibis? There is only one reason,
    because they are guilty.
[Emphasis added.]

[85]

And
    in the charge the jury, the trial judge, in reviewing the Crowns position,
    made this reference to the false alibi provided at the trial:

The most incriminating aspect of Danny Jacksons post offence
    conduct was that he was creating or orchestrating a false alibi that he was at
    The Duke all night.  He never admitted to being in Cheers in any of the calls.
At this trial, Danny Jackson has concocted a new alibi that he has revealed
    for the first time
, that he was on his way back to The Duke in a taxi at
    the relevant time.
Both alibis are false
. [Emphasis added.]

[86]

In
    his own explanation in the charge to the jury of the relevancy of the false
    alibi, the trial judge referenced only the conversations in the wiretaps as
    evidence on which the jury could find an attempt by the appellant to
    orchestrate a false or misleading alibi.

[87]

In
    my view, for the following reasons, the appellant was not prejudiced by the
    jury address and the trial judges reference to Crown counsels theory
    concerning the false alibi.

[88]

In
R. v. OConnor
(2003), 62 O.R. (3d) 263 (C.A.), at para. 22, this
    court explained that mere disbelief of an alibi cannot be used as proof of
    guilt; there must be independent evidence of concoction before an adverse
    inference against the accused could be drawn. The court explained, at para. 23,
    that the circumstances or manner of the accuseds testimony could not
    constitute such independent evidence.

[89]

There
    was no dispute that the alibi as the appellant revealed it in the wiretapped
    conversations, that he was at the Duke of York the entire night, was false. The
    appellant conceded in his testimony that he was not at the Duke of York at the
    time of the shooting, contrary to what he said in the wiretapped conversations.
    Whether an inference of guilt could be drawn from this false alibi depended
    upon what the jury thought of the appellants explanation. As I have said
    earlier, that explanation, in short, was that the appellant did not trust the
    police and believed that if he revealed his true alibi, the police would not
    fairly investigate and might even fabricate evidence to undermine the alibi.

[90]

The
    other potentially false alibi was the one given in court; that the appellant was
    in a taxi having left Cheers minutes before the shooting. The appellant submits
    that there is no extrinsic evidence that this alibi was false, but argues that the
    use of the word concocted in the trial judges review of the Crowns position
    would lead the jury to believe that they could infer guilt simply from
    disbelief of the alibi.

[91]

There
    is no question that one way of reading Crown counsels jury address was that
    Crown counsel invited the jury to use the appellants testimony that he was in
    the taxi as positive evidence of guilt. I refer again to the last three
    sentences set out above: Both of his alibis have always been false. Why do
    people come up with false alibis? There is only one reason, because they are
    guilty. I would not, however, give effect to this submission for these
    reasons.

[92]

Crown
    counsels jury address is admittedly problematic. But, in my view, this single
    improper reference to both alibis was not so prejudicial as to require a new
    trial. First, when instructing the jury about post-offence conduct, the trial
    judge only referred to the false Duke of York alibi referred to in the
    wiretapped conversations.

[93]

Second,
    there is no reason to think that the use of the single word, concocted, in
    the trial judges review of the Crown position would lead the jury to believe
    that as a matter of law simple disbelief of the alibi could be positive
    evidence of guilt. Throughout the trial, the focus was on the false alibi as
    revealed in the wiretapped conversations. In particular, the focus was on the appellants
    attempts to mislead the police, who he believed were monitoring the
    conversations and his attempts to recruit Lynzee Freeman to assist in
    fabricating evidence to bolster the false Duke of York alibi.

[94]

Finally,
    most of Crown counsels jury address on the alibi was proper. He was entitled
    to argue to the jury that the first alibi, the Duke of York alibi, was
    fabricated and that the appellants attempts to fabricate it could be used as
    circumstantial evidence of guilt. He was also entitled to argue that the trial
    alibi was false, that there was no extrinsic evidence to support it, that it
    was a recent fabrication designed to meet the overwhelming evidence that the
    appellant was at Cheers around the time of the shooting, and that it should be
    rejected. The fact that Crown counsel may have improperly invited the jury to
    use rejection of the trial alibi as additional evidence of guilt was not
    sufficiently prejudicial as to require a new trial, especially given the
    overwhelming evidence that the first alibi was concocted.

(3)

The violation of the
    appellants right to silence

[95]

The appellant submits that Crown counsels cross-examination of him infringed
    his right to silence by suggesting to the jury that an innocent person would
    have proclaimed his innocence and would have preserved evidence supporting his
    alibi.

[96]

In cross-examination about a conversation with Lynzee Freeman about the
    police press conference on the anniversary of the shooting when the reward was
    offered, the appellant was asked why, if he were really innocent, he would be
    worried about a reward. Would he not be pleased that police were offering a
    reward? The appellant testified that he was not worried about the reward; he
    was worried about Charity MacGillivray, Jodie Rideout and others who the police
    hoped would implicate him as the shooter. Crown counsel then asked:

Q.      Right. And
    again, again I am going to suggest you were caught off guard is because, I am
    going to suggest to you, knowing that, if you were innocent, your first
    reaction would be to start proclaiming your innocence. Right?

A.      I dont agree with you.

[97]

Crown
    counsel returned to this theme in cross-examining the appellant about his
    failure to disclose his alibi:

Q.      So, Mr. Jackson, you knew that you were not in Cheers
    at the time of the shooting.  Correct?

A.      Yes.

Q.      Okay.  And you chose to say nothing to the police about
    that fact.  Correct?

A.      I chose to say nothing to them?  I, I didnt wanna say
    anything to the police about anything.

Q.      Okay.  And you knew basically as soon as you believed
    you were a suspect that you could clear your name, but you chose not to speak
    to the police?

A.
I chose not to speak to the police.  My lawyer had
    informed me that Im on charges, so I should, I should, if the police wanna
    talk to me, they could talk to, to him for me.

Q.      Okay.  I am talking about as soon as you learned that
    you were a suspect, which was basically the same day of the murder.  Right?

A.      If, if I would tell the police what?

Q.      Evidence or witnesses that could prove your innocence.

A.      I, I, I dont wanna talk to the police period.

[Emphasis added.]

[98]

Crown
    counsel also pressed the appellant in cross-examination that it must have been
    important to him to remember where he was at the time of the shooting. It was
    also suggested that he could have started finding out about the taxi.

[99]

The
    trial judge explicitly instructed the jury that the appellant had a right to
    remain silent and was not required to provide information to the police.
    However, the trial judge pointed out that when the appellant attempted to
    counsel people not to speak to the police and to withhold information, the jury
    could take this post-offence conduct into account. The trial judges direction
    on the right to silence was as follows:

So the first category [of post-offence conduct evidence]: The
    evidence of efforts by Mr. Jackson to keep information from the police.
Now,
    I want to make one thing clear to you.  When I speak of evidence of efforts to
    keep information from the police, I am not speaking of the fact that Mr.
    Jackson did not volunteer information to the police.  Mr. Jackson was a suspect
    throughout the period of the interceptions.  He had the right to silence.  He
    had no obligation to speak to the police and so you cannot use his failure to
    provide information to the police against him
.  So then what am I talking
    about?  I am talking about his efforts to keep other people from revealing
    information about him or about the Cheers shooting from the police, either
    while the people were talking to him, since he strongly suspected that the
    police were intercepting him, or later, when the police attempted to interview
    these people. [Emphasis added.]

[100]

The trial judge
    returned to the issue of the right to silence when reviewing the position of
    the Crown:

The secrecy of Lynzee Freeman, the guarded conversation between
    her and Jackson and most importantly, Danny Jacksons reaction to the press
    conference and news release were totally inconsistent with the behaviour of
    someone who was innocent but totally consistent with him having a great deal to
    hide, because he is guilty.  For example, he never speaks of the reward
    assisting the police to get information about anyone else.
He never
    proclaims his innocence, but, on the other hand, tells Lynzee Freeman to throw
    away the newspaper article
about the reward and ends the call by telling
    her to tell everyone stop the talking, man.

The post offence conduct in the wiretap phone calls is very
    indicative of Danny Jacksons guilt for the murder.  Mr. Jacksons discussion
    about the Cheers Tavern murder in heavy code, his response in reaction to
    developments in the investigation of the Cheers Tavern murder, and his
    instruction and at times orders to his friends and family as to how they should
    respond to the investigation are completely inconsistent with the actions of an
    innocent man, but rather totally consistent with someone who is attempting to
    hide his guilt. [Emphasis added.]

[101]

The appellant
    submits that Crown counsels cross-examination was an improper attack on the
    appellants right to silence. He submits that the trial judge should have
    expressly instructed the jury to disregard the cross-examination, and that the
    trial judges instructions were not sufficient to remove the prejudice caused
    by the cross-examination.

[102]

I do not accept
    this submission. In considering the adequacy of the trial judges response to
    the impugned cross-examination, that cross-examination must be put in context.
    That context was unusual. The appellant testified that he believed the police
    were listening to his conversations. It was open to the jury to infer from these
    conversations that the appellant was attempting to take advantage of the fact
    that the police were monitoring his conversations by devising a false alibi. In
    other words, he was talking to the police through the intercepted
    communications, and attempting to mislead the police into believing that he was
    at the Duke of York at the time of the shooting. In that context, the
    appellants position was somewhat akin to an accused who arguably gives up his
    right to silence by talking to the police but failing to mention what becomes
    an important point of his defence, as suggested in
R. v. Paris
(2001),
    150 C.C.C. (3d) 162 (Ont. C.A.) at para. 41.

[103]

The appellants
    situation was different from that of the accused in either
R. v. Parrington
(1985), 20 C.C.C. (3d) 184 (Ont. C.A.), or
R. v. Chambers
, [1990] 2
    S.C.R. 1293. Those accused had been arrested and advised of their right to
    silence. Nevertheless they were cross-examined at trial on the fact that they
    failed to disclose their defence. Here, the appellant selectively relied upon
    his right to silence. I agree that the appellant was not required to go to the
    police, disclose his defence, and proclaim his innocence. He had a right to
    remain silent. To the extent that Crown counsels cross-examination suggested
    otherwise, it was improper and it would be improper for the jury to use the
    appellants failure to speak to the police against him. But, it was not
    improper to cross-examine the appellant on his attempt to concoct an alibi
    through the wiretaps when he was aware that the police were listening.

[104]

In that context,
    it is my view that the trial judges directions were sufficient. The trial
    judge drew a distinction between exercising the right to silence and
    fabricating evidence. Given the unusual context, in my view, this case is more
    like
Paris
than either
Chambers

or
Parrington
.
In
Paris
,
the court
    held as follows, at para. 45:

Every non-direction does not, however, amount to reversible
    error.
The Trial Judge told the jury that as a matter of law, Paris was not
    obliged to say anything. Paris had testified that he did not say anything to
    the authorities because his lawyer told him not to say anything.
In my
    view, the jury would reasonably take from the Trial Judge's instructions, and
    Paris' answers to Crown counsel's questions, that Paris followed his lawyer's
    advice and that the advice was proper advice in the eyes of the law.
I do
    not think that a jury would draw any adverse inference against Paris for
    following perfectly proper advice given to him by his lawyer
.
I am
    satisfied that the Trial Judge's instructions adequately protected against the
    potential miscarriage of justice occasioned by Crown counsel's improper
    questions. [Emphasis added.]

[105]

In this case,
    too, there was a clear statement of the appellants right to silence. As in
Paris
,
    the appellant had referred to his lawyers advice in answering Crown counsels
    questions. No objection was taken to this aspect of the charge to the jury and
    counsel did not seek a specific direction that the jury disregard the impugned questions.
    Crown counsel ought not to have attacked the appellants right to remain silent,
    but neither those questions nor the non-direction resulted in a substantial
    wrong or miscarriage of justice. I would not give effect to this ground of
    appeal.

(4)

The failure to correct the Crowns cross-examination
    on McCanns criminal record

[106]

It will be
    recalled that the Crown relied upon a conversation with October Newton in which
    the conversation turned to talking about a gun, and the appellant said the
    other ones fishin. I aint a fool. The Crowns theory was that the appellant
    was talking about the gun used at the Cheers shooting. The defences position was
    that the appellant was talking about a gun used by Daryl McCann, and that
    Newton should not be worried that the gun she had was the one that McCann had
    used in the commission of a crime. In cross-examination, Crown counsel pressed
    the appellant on why Newton should be assured. The appellant then gave this
    answer:

Im basing it [assuring Newton] on the fact that he, he had, he
    got arrested for firing a certain gun, and Im trying to assure her, you know.

[107]

When asked when
    McCann was arrested, the appellant said he was not really sure but thought it
    was sometime around 2002 or 2003. In cross-examination, Crown counsel put to
    the appellant that McCann was convicted on November 8, 2004 of careless storage
    of a firearm and received a suspended sentence after taking into account 30
    days of dead time. In other words, the McCann incident took place after the wiretapped
    conversation, which occurred on June 30, 2004. The appellant answered that he
    did not know when or for what McCann was convicted, only:

I basically know that, that basically the type of gun that he
    was used or whatnot that she, he never sold her that type of gun.  Thats all.
    Thats why I gave her assurance.

[108]

After a break, and
    in the absence of the jury, Crown counsel informed the court that he had found
    the police synopsis relating to the November 8 conviction and that it related
    to an incident on August 19, 2003 in which McCann did indeed discharge a
    firearm. Originally, Crown counsel wanted to correct any mistaken impression
    that might have been left as to what McCann had done and, particularly, the
    timing. Defence counsel wanted to go further and have the version of events as
    disclosed in the synopsis put before the jury. The trial judge pointed out that
    this would be hearsay. Defence counsel was still concerned that because of the
    cross-examination, the jury would be left with a mistaken impression as to the
    significance of the McCann incident. The trial judge quite properly pointed out
    that the appellant had not acknowledged the truth of any of Crown counsels
    questions about what McCann had done or been convicted of. In the end, defence
    counsel agreed with the trial judges approach, which was to simply tell the
    jury that propositions put in questions were not evidence, if not accepted by
    the witness:

THE COURT: So, I dont know.  Thats why I say were in some
    kind of, I feel we are in the twilight zone.  We are talking about stuff thats
    not evidence before the jury.  And correcting mis-statements about things that
    havent been proved, my notion is that thats just not proved.  Nothing is
    proved about this other offence.  Frankly, including, and it sort of troubles
    me about this correction, and I, thats why I asked you if you wanted the
    correction because the correction is in the way of saying, this is the true
    facts, when, in fact, I dont think there are any true facts about this
    conviction, that are before the jury.  At the moment.

[Defence counsel]: Your Honour, I  and I think now that youve
    said it, that makes a lot of sense.

THE COURT:        So, we could leave it as it is?

[Crown counsel]:    I agree.

THE COURT:        And just move on.  And then when I charge the
    jury, I will tell them, remind them as I always do, that as I said in the
    outset, questions arent evidence, only answers and I could use this as an
    example, and say, you will recall that the Crown asked questions about what Mr.
    McCann did and made suggestions to the witness; the witness didnt know that,
    and its not evidence.

[Defence counsel]: All right.  I am content with that, Your
    Honour.

[109]

As promised, the
    trial judge gave the agreed upon direction immediately after the jury returned,
    and gave a similar direction in the charge to the jury.

[110]

Prior to Det.
    Sgt. Skubic being called, defence counsel sought a ruling from the trial judge
    that he could lead through Skubic the information showing what McCann was charged
    with in August 2003, in order to clear up some of the uncertainty arising from
    the earlier cross-examination of the appellant. The trial judge refused to
    permit defence counsel to do so, holding that production of the information
    would not prove what McCann actually did.

[111]

In my view, the
    trial judge made no legal error. The trial judge was correct that there was no
    admissible evidence as to what McCann did in August 2003. His direction to the
    jury during the appellants cross-examination and in the charge to the jury was
    correct.

[112]

That said, I
    agree that Crown counsels questions could have left a false impression as to
    the date of McCanns charge. However, the appellant has not shown that any
    miscarriage of justice occurred. Defence counsel expressly agreed with the
    approach taken by the trial judge. There is no reason to second-guess his
    decision that the best solution was the direction to the jury as proposed by
    the trial judge.

[113]

As to the
    attempt to file the information through Det. Sgt. Skubic, the appellant was not
    entitled to put before the jury what was nothing more than hearsay. It must
    also be said that this issue is far removed from the real question in dispute, which
    was whether the appellant, in the wiretapped conversation, was referring to the
    murder weapon or some other firearm that may have originated with McCann. What
    use McCann actually made of the firearm, before it may or may not have been
    given to October Newton, was of little importance.

[114]

The appellant
    submits that what McCann was charged with was relevant to Newtons state of
    mind. However, October Newton did not testify and her state of mind was of only
    minor importance to the case. The appellants state of mind was highly
    relevant, but all the admissible evidence on his state of mind as it related to
    the gun was before the jury. If the appellant wanted to lead further evidence
    to support his state of mind he could have done so by calling McCann. He did
    not do so and it was not open to him to get McCanns evidence in indirectly and
    through hearsay sources.

(5)

The
res gestae
evidence

[115]

The appellant
    submits that the trial judge erred in failing to direct the jury that a
    statement made by an unidentified patron at Cheers and reported by Deborah Robinson,
    a waitress at Cheers, was admissible for its truth. Right after the shots were
    fired, Robinson heard a female customer yell grab the guy in the white shirt.
    The defence relied upon this evidence as proof that the shooter wore a white
    shirt; the appellant was wearing a black leather jacket that night, according
    to Lynzee Freemans mother.

[116]

In his jury
    address, Crown counsel argued that the jury should reject the defence theory
    that Robinson was referring to the shooter because it was speculation and, in
    any event, hearsay. In his charge to the jury, in the excerpt set out above dealing
    with hearsay evidence, the trial judge did not specifically refer to Robinsons
    evidence, but did tell the jury that second-hand descriptions of the shooter
    were not admissible for their truth. The appellant submits that this particular
    comment, testified to by Robinson, was admissible for its truth.

[117]

The trial judge
    was never asked to rule on the admissibility of this evidence as an exception
    to the hearsay rule. Even assuming the evidence was available for its truth, no
    substantial wrong or miscarriage of justice was occasioned by its treatment by
    the trial judge in the charge to the jury. There was simply no evidence as to
    whether the unknown patron was referring to the shooter or had an opportunity
    to observe the shooter.

[118]

Finally, when
    reviewing the evidence of the people at Cheers, the trial judge specifically
    referred to Deborah Robinsons evidence, including her statement about grabbing
    the guy in the white shirt.  The trial judge did not suggest the evidence was
    not available for its truth.  Defence counsel did not object to the charge on
    this basis.

[119]

I would not give
    effect to this ground of appeal.

Discreditable
    conduct

[120]

Mr. Breen made a
    very brief oral submission about admission of evidence of discreditable conduct
    of the appellant. The trial judge gave an extensive and entirely proper
    direction to the jury about the limited use of evidence of what he referred to
    as an unflattering description of Mr. Jacksons lifestyle. I would not give
    effect to this ground of appeal.

DISPOSITION

[121]

Accordingly, I
    would dismiss the appeal.

Released: MR

M. Rosenberg J.A.

I agree Gloria
    Epstein J.A.

I agree P. Lauwers
    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. K.A., 2013 ONCA 410

DATE: 20130619

DOCKET: C56113

Rouleau, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K. A.

Appellant

Robin K. McKechney, for the appellant

Christine Tier, for the respondent

Heard and released orally: June 12, 2013

On appeal from the judgment of Justice P.U. Rivard of the
    Superior Court of Justice, sitting as a Summary Conviction Appeal Court, on
    September 17, 2012.

ENDORSEMENT

[1]

K. A. appeals from the decision of a judge of the Superior Court of
    Justice that dismissed his summary conviction appeal from a conviction of a
    single count of sexual assault.

[2]

The sexual assault alleged was that the appellant had sexual intercourse
    with the complainant without her consent while she and her [then] common law
    husband were in bed together after several hours of drinking in a hot tub with
    the appellant and another man.

[3]

The appellant acknowledged that he had sexual intercourse with the
    complainant, but he insisted that it was with her consent. The complainant
    denied consent.

[4]

A critical piece of evidence relied upon by the appellant at trial in
    support of his submission that the complainant consented was the evidence of
    her former common law spouse, J. M. He testified that he was awakened by the
    movement of the bed in which he and the complainant were sleeping and by the
    complainants grabbing his hand and moving it between her legs.  The appellant
    relied on this evidence to support the inference that the complainant knew she
    was having sexual intercourse with the appellant and was inviting her then
    common law spouse to join them in a threesome.

[5]

The evidence in this case was heard on two days about one year apart.
    After hearing closing submissions, the trial judge reserved judgment. Four
    months later he released his reasons for convicting the appellant.

[6]

In his reasons for judgment, which consist of 21 paragraphs, the trial
    judge characterized the only issue as whether the appellant honestly and
    reasonably believed the complainant was consenting to the sexual activity that
    took place.  This issue, the trial judge reasoned, reduced to a question of
    whether the appellant took reasonable steps in the circumstances known to him
    at the time to ascertain whether the complainant was consenting to the sexual
    activity within s. 273.2(1) of the
Criminal Code
.

[7]

The trial judge concluded that the appellant took no reasonable steps to
    ascertain whether the complainant was consenting to the sexual activity in
    which the appellant was engaged. Of the appellants evidence, the trial judge
    said:

Needless to say, I do not believe the accused nor am I left
    with a reasonable doubt on his evidence.

[8]

The trial judge expressly found the witnesses for the Crown to be
    reliable and trustworthy. The complainants former common law spouse, whose
    evidence was central to the consent defence, was a Crown witness.

[9]

The trial judge said nothing about this critical piece of evidence in
    his reasons for judgment. Nor, for that matter, did he deal, in terms, with the
    defence advanced, which was consent, not mistaken belief in consent as the
    trial judge characterized it. Further, the reasons are barren of any analysis
    of why the judge concluded the evidence was sufficient to satisfy the high
    standard of proof required in criminal cases.

[10]

The
    appeal judge acknowledged that the trial judge had failed to address many of
    the inconsistencies in the evidence of the Crown witnesses. The appeal judge
    considered that it was not necessary for the trial judge to have done so to
    permit meaningful appellate review. Like the trial judge, the appeal judge
    concluded that the only live issue was whether the appellant took reasonable
    steps to ascertain whether the complainant was consenting to the sexual
    activity in which the appellant was engaged.

[11]

In
    our view, the appellants conviction cannot stand. The reasons for judgment in
    both courts below reflect a fundamental misunderstanding of the defence
    advanced at trial and fail to consider, thus come to grips with, evidence that
    bore directly on the defence advanced at trial, consent, thus the issue of the
    appellants guilt or innocence. This deficiency and the overall conclusory
    nature of the trial judges findings, as well as those of the appeal judge,
    preclude meaningful appellate review.

[12]

This
    was not a complex case. No controverted principles of law required resolution.
    But the issue of consent required reasoned analysis, a consideration it did not
    receive.

[13]

For
    these reasons, we allow the appeal, set aside the conviction and order a new
    trial.

Paul Rouleau J.A.

David Watt J.A.

Gloria Epstein J.A.