CITATION:
R. v. Ranger, 2011
          ONCA 311

DATE: 20110420

DOCKET: C45555

COURT OF APPEAL FOR ONTARIO

Moldaver, Simmons and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rohan Ranger

Appellant

James Lockyer and Brian Snell, for the appellant

Brian McNeely, for the respondent

Heard: March 28 and 29, 2011

On appeal from conviction by Justice Edward Then of the
          Superior Court of Justice, sitting with a jury, dated August 10, 2005.

By the Court
:

[1]

This appeal comes to us sixteen years after Marsha and Tammy
    Ottey were killed and six years after the appellants second trial at which he
    was convicted of first degree murder in relation to the death of Marsha and
    manslaughter in relation to the death of Tammy.

[2]

The appellant appeals against these convictions. He
    does not suggest that the verdict is unreasonable. Rather, he seeks a new trial
    based on errors he alleges the trial judge committed. He raises numerous
    grounds of appeal, some relating to evidentiary rulings, others to the trial
    judges instructions to the jury.

[3]

We have considered the various grounds of appeal, both
    individually and collectively, and conclude that they do not leave us concerned
    about the integrity of the jurys verdict. Apart from a minor instance, which
    we consider to be inconsequential, the trial judge made no errors of fact or
    law in his evidentiary rulings and he provided the jury with correct legal
    instructions.

[4]

Nor in our view does this case raise the spectre of a
    miscarriage of justice. The trial was fair, the appellant was ably defended by
    experienced defence counsel, the charge to the jury was even-handed and the
    jurys verdict is amply supported by the evidence.

OVERVIEW OF THE FACTS
[1]

[5]

On August 16, 1995, Marsha Ottey and her sister Tammy
    Ottey were killed. Marsha was 19 years old at the time and Tammy was 16. They
    were both living at home with their mother in Scarborough.

[6]

Marsha was a gifted athlete and had won a full track
    and field scholarship to attend Arkansas State University. She was scheduled to
    leave for university two days after she was killed. Tammy was a high school
    student and was working during her summer vacation.

[7]

Avis Ottey, the mother of Marsha and Tammy, left for
    work at about 7:00 a.m. on August 16, 1995. Marsha and Tammy were both at home
    at the time she left. Tammy was getting ready to go to work herself. Marsha had
    finished working for the summer and was making final preparations to leave for
    Arkansas. She was still in bed when her mother left for work.

[8]

Mrs. Ottey returned home later in the day, between 5:15
    and 5:20 p.m. Once inside, she immediately noticed that the furnishings were in
    a state of disarray and that something appeared to be wrong. She went to the
    basement, where she saw Marsha lying on the floor. She tried to call 911, but
    could not get a dial tone. She then ran to a neighbours house to obtain
    assistance and directed her neighbour to the basement of her home, where the
    neighbour discovered the dead bodies of Marsha and Tammy.

[9]

Emergency crews arrived shortly after. Marsha was found
    partially clothed, lying on her stomach. Tammy was found fully clothed, lying
    on her side. Both sisters had been stabbed and were covered in blood. Autopsies
    revealed the cause of death for both young women as multiple cut and stab
    wounds to their neck and chest areas. Although the house appeared to have been
    ransacked, nothing was taken other than three items: a gold necklace given to
    Marsha by the appellant which she always wore; Marshas electronic organizer;
    and possibly a video of Marsha playing soccer (although Mrs. Ottey did not
    discover that the video was missing until much later, and the issue of whether
    or not it was taken the day of the murders was disputed at trial).

[10]

The appellant became an immediate suspect in the police
    investigation into these deaths because of his relationship with Marsha. He and
    Marsha had met in high school in 1990. They began dating in 1991 and were
    involved in a romantic relationship for about three years. Marsha ended this
    relationship in the summer of 1994. It
    was the Crown's position at trial that the appellant never accepted that his
    relationship with Marsha was over and that he relentlessly stalked and harassed
    her.  According to the Crown, the appellant decided that if Marsha was going to
    go to the United States and he couldn't have her, then no one would.  He was said to have enlisted his cousin,
    Adrian Kinkead, to help him kill Marsha.

[11]

It was the theory
    of the Crown that on two mornings immediately before the day of the homicides,
    the appellant stood in the walkway across from the Ottey home staking out the
    early morning activities at the home. On the morning of the homicides, the
    appellant and Kinkead returned to the Ottey home. Kinkead intercepted Tammy as
    she walked towards her bus and forced her to return to the Ottey house. The
    appellant remained in the walkway across the street until Kinkead and Tammy
    were inside, following which he also entered the house.

[12]

The Crown
    called a number of people who lived near the Otteys in support of this theory.
    These witnesses testified about seeing a man in a walkway across the street
    from the Ottey home on the mornings preceding, or the morning of, August 16,
    1995 and about seeing Tamara being led to her house by a man on the morning of
    August 16.

[13]

One of these
    witnesses, Mr. Victor Lo, testified at the appellants second trial that on the
    morning before the murders, on his way to catch the 7:35 a.m. bus, he saw a
    black man crouching in the corner of the walkway.  He further testified that on the morning of
    the murders, again while on his way to catch the 7:35 a.m. bus, he saw the same
    man in the walkway. The Crown was also permitted to lead Mr. Los evidence from
    the 1996 preliminary inquiry that Kinkead was not the person he had seen in the
    walkway on the morning before and the morning of the homicides. This evidence
    is the subject of appeal and is described in more detail later.

[14]

The police approached the appellant on August 18, 1995,
    two days after the homicides. The appellant provided the police with a
    statement and with the clothes that he had been wearing on the day of the
    homicides. The appellant was placed under 24-hour surveillance. During the
    subsequent investigation, no forensic evidence was found to link the appellant
    to the crime scene. The investigation continued for months without any arrest
    being made.

[15]

In early January 1996, the police uncovered a central
    piece of evidence in the case. Concurrent with the Ottey murder investigation,
    the police were investigating the robbery and murder of a subway attendant as
    well as two aggravated sexual assaults that occurred in September and October
    1995. Kinkead was a suspect in these investigations. During their investigation
    into these other crimes, the police discovered that Kinkeads DNA profile
    matched a DNA profile found under one of Marshas fingernails. The police
    arrested Kinkead in February 1996 and charged him with the murders of Marsha
    and Tammy, as well as with the murder of the subway attendant and the two
    aggravated sexual assaults. In February 1996, the appellant was arrested and
    also charged with the murders of the Ottey sisters.

[16]

The appellant and Kinkead were tried separately and the
    appellant relied on the theory that Kinkead was the sole killer. The appellant
    did not testify. Both men were convicted at their first trials of first degree
    murder and manslaughter, and both appealed to this court. Kinkeads appeal was denied,
    but the appellants appeal was allowed on the basis that, taken cumulatively,
    various errors by the trial judge had resulted in an unfair trial.

[17]

At the second trial, the appellant again did not
    testify.  He took the position that he
    was not involved in the homicides and that Kinkead acted alone in killing the
    Ottey sisters.  The appellant was once
    again convicted of first degree murder in relation to the death of Marsha and
    manslaughter in relation to the death of Tammy. It is from those convictions
    that he appeals to this court.

GROUNDS OF APPEAL AND
    ANALYSIS

[18]

The appellant raises six grounds of appeal as follows:

(1) The trial judge erred in several respects in
    his treatment of the evidence of Victor Lo.

(2) The trial judge failed to charge the jury on
    the defence theory concerning the use of Kinkeads prior statements and
    evidence.

(3) The trial judge erred in excluding evidence
    that tended to show that Kinkead had a motive to kill the Ottey sisters.

(4) The trial judge erred in excluding evidence
    relevant to Kinkeads pattern of behaviour.

(5) The trial judge erred in admitting unreliable
    hearsay.

(6) The trial judge
    erred in ruling that the Crown did not have to lead the appellants statement to
    the police during its case in-chief if it wished to use the statement during
    cross-examination for impeachment purposes.

Ground One: The Trial Judges Treatment of the Evidence of
    Victor Lo

[19]

The appellant submits that the trial judge erred in
    three respects in relation to his treatment of the evidence of Mr. Lo:

i)

The
    trial judge erred by admitting evidence of Mr. Los testimony at the
    preliminary inquiry that Kinkead was
not
the man he saw in the walkway near the Ottey residence on the day of the
    murders.

ii)

The
    trial judge erred in failing to hold a
voir
    dire
in which Mr. Lo could be questioned about the basis for that
    non-identification.

iii)

The
    trial judge erred in failing to deal adequately with the frailties of Mr. Los
    testimony as eyewitness evidence in his charge to the jury.

[20]

For the reasons that follow, we would not give effect
    to these arguments. We first describe the nature of Mr. Los evidence.

Background

[21]

As previously
    noted, the Crowns theory at trial was that on two mornings before the murder
    and on the morning of the murder, the appellant was standing in the walkway
    across from the Ottey home. Victor Lo lived near the Otteys. In September 1995,
    a month after the murders, the police showed Mr. Lo a photographic line-up consisting
    of 12 men. Mr. Lo said he was 80-90 percent certain that the appellant's
    photograph was a photograph of the man he had observed in the walkway across
    from the Ottey home on the morning before and the morning of the murders. He picked
    another man's photograph in the same line-up as the man he saw in the walkway with
    only 30 percent certainty.

[22]

At the
    preliminary inquiry in December 1996, Mr. Lo made an in-court identification of
    the appellant as the man he had seen in the walkway on the morning before and
    the morning of the murders. He also indicated that Kinkead was not the man he
    saw in the walkway. When Mr. Lo made the in-court identification of the
    appellant and the non-identification of Kinkead, the two men were seated beside
    each other in the prisoners dock.

[23]

At the
    appellants first trial, Mr. Lo testified that he saw the same man crouching in
    the walkway around 7:30 a.m. on August 15 and on August 16, 1995. However, he
    was not able to make an in-court identification of the appellant as the man he
    saw in the walkway.

[24]

Prior to the commencement of the second trial, Crown counsel
     for reasons that need not be discussed  undertook not to lead evidence of
    Mr. Los identification of the appellant as part of its case. In the same
    undertaking, the Crown agreed not to lead evidence that Mr. Lo had identified
    the appellant from the photo line-up as the man in the walkway with 90 percent
    certainty.

[25]

After the trial began, the Crown sought to introduce Mr.
    Los evidence that Kinkead was not the man he had seen in the walkway on the
    morning before and the morning of the murders. Defence counsel objected to the
    Crowns proposal and asked the trial judge to rule that this evidence was
    inadmissible on
Seaboyer
[2]
grounds,
i.e
., that its prejudicial
    effect outweighed its probative value.

[26]

Defence counsel asserted that this evidence was of negligible
    probative value given the highly suggestive circumstances in which Mr. Lo
    excluded Kinkead as the man in the walkway. The appellant and Kinkead were
    sitting together in the prisoners dock and Mr. Lo had just identified the
    appellant as the man in the walkway, so it followed inevitably that he would
    say that Kinkead was not that man. Defence counsel also submitted that this
    evidence would be highly prejudicial because the jury would not be made aware
    of the suggestive circumstances in which Mr. Lo excluded Kinkead, due to the
    Crowns undertaking not to call evidence of Mr. Los positive identification of
    the appellant. Counsel complained that he would be handcuffed in his ability
    to reveal these circumstances, because doing so would require him to reveal
    that Mr. Lo identified the appellant at the preliminary inquiry as the man in
    the walkway.

The Trial
    Judges Ruling

[27]

The trial judge allowed the Crowns application to
    admit this aspect of Mr. Los evidence. He rejected the defence argument that
    the proffered evidence was of negligible probative value. The trial judge
    pointed out that Mr. Los identification of the appellant at the preliminary
    was not a mere in-dock identification, but was preceded by Mr. Los photo
    line-up identification of the appellant with 80-90 percent accuracy. He also
    noted that Mr. Lo at the preliminary could have said that Kinkead was a
    possibility, as he did with a second photograph in the photo line-up, but he
    did not do so even though both the appellant and Kinkead are of the same basic
    height and build.

[28]

The trial judge also rejected defence counsels
    submission that the evidence should be excluded because the defence would be
    handcuffed in trying to meet it.  He
    pointed out that, although counsel faced a difficult strategic decision, it was
    still open to the defence to adduce Mr. Los identification at the preliminary of
    the appellant, as well as his inability to do so at the first trial.  In the trial judges view, the tactical
    conundrum faced by the defence was irrelevant to the determination of
    admissibility.

i
)  Did the trial judge err in admitting Mr. Los
    evidence excluding Kinkead as the man in the walkway?

[29]

As we understand the appellants submissions, there are
    two branches to his argument that the trial judge erred in admitting this
    evidence.

[30]

The first branch of the argument arises out of the
    alleged link between Mr. Los evidence at the preliminary inquiry that Kinkead
    was not the man he saw in the walkway and his evidence that the appellant was
    that man. Relying on the accepted principle that evidence of an in-dock
    identification of an accused, although
prima
    facie
admissible, is notoriously frail because of the inherently suggestive
    circumstances surrounding it, the appellant submits that Mr. Los
    identification of the appellant as the man in the walkway was weak and would
    not have been admissible on
Seaboyer
grounds.
    Having identified the appellant as the man in the walkway at the preliminary hearing
    and in the earlier line-up procedure, the appellant says it followed inevitably
    that Mr. Lo would testify that Kinkead was not the man in the walkway. Accordingly,
    because the non-identification evidence was derivative of the identification
    evidence, it, too, ought not to have been admitted on
Seaboyer
grounds since it had negligible probative value
    independent of that identification. In addition, Mr. Los exclusion of Kinkead
    was highly prejudicial to the appellant because the jury was not able to hear
    about the circumstances in which Mr. Lo positively identified him at the
    preliminary hearing, or about the line-up identification, given the Crowns
    undertaking.

[31]

The
Seaboyer
balancing of prejudicial effect and probative value is a delicate exercise particularly
    suited to the trial judge who is fully aware of the trial context and dynamics.
    Absent an error in law or principle, this court should not interfere. There was
    no such error here.

[32]

We acknowledge that in disposing of the appellants
    first appeal to this court, Charron J.A. described Mr. Los evidence
    identifying the appellant as the man he had seen in the walkway as very weak:
Ranger
, at para. 170. However, this description
    was at least partly because in Mr. Los testimony at the first trial, he did
    not make an in-court identification of the appellant as the man he observed in
    the walkway. Whether he was unable to make the in-court identification, or  as
    the trial Crown submitted  unwilling to do so, was an open question at the
    first trial.

[33]

The trial judges ruling indicates that he was alive to
    the defence submission that the non-identification evidence was of only slight
    probative value in the circumstances. We agree with the trial judges refusal
    to accept that submission. Mr. Los identification of the appellant at the
    preliminary inquiry was not the particularly frail type of in-dock
    identification where a witness identifies the accused  often for the first
    time  while the accused is sitting alone in the dock and by means of a bare
    assertion uninformed by detail and unconfirmed by other evidence. Here, Mr. Lo
    had identified the appellant as the man in the walkway from an earlier line-up
    to an 80-90 percent certainty. At the preliminary hearing, he had to make a
    choice between the two young men of similar height and build in the prisoners
    dock, and he chose the appellant, free of any suggestion favouring that choice.
    Mr. Lo testified at the second trial that he had an opportunity to observe the
    person he saw in the walkway at close quarters twice, and that he had
    concentrated on the facial features when doing so. Although Mr. Lo was not
    asked to identify either the appellant or Kinkead at this trial, in our view,
    his evidence carried sufficient weight to be admissible.

[34]

The trial judges ruling indicates that he was also sensitive
    to the defence submission that admitting the evidence excluding Kinkead would
    be unfair to the appellant because he would be handcuffed in meeting it,
    since to do so, he would inevitably have to reveal that Mr. Lo had identified
    the appellant as the man in the walkway at the preliminary hearing.

[35]

The trial judge properly recognized that the tactical
    conundrum, which was created by defence counsel having extracted the Crown
    undertaking referred to above, was not a recognized form of prejudice under
Seaboyer
. He said:

In my view, this
    submission [the handcuffed/unfairness submission] cannot affect the
    admissibility of relevant evidence. It is open to [defence counsel] to adduce
    the evidence of Mr. Lo as to his identification of Mr. Ranger at the
    preliminary and his inability to do so at trial. While this may be a difficult
    strategic decision for the defence to make, that consideration is irrelevant,
    in my view, to the determination of the admissibility of the evidence of Mr. Lo
    that, at the preliminary inquiry, when given an opportunity to identify Mr.
    Kinkead as the person in the walkway at 7:35, he stated that Mr. Kinkead was
    not that person. In my view, the evidence of Mr. Lo is admissible.

[36]

We conclude that it was open to the trial judge to
    reject the defence submissions regarding the prejudicial effect of this
    evidence.

[37]

The second branch of the appellants argument is that the
    trial judge erred in law by taking into account the preliminary hearing
    identification of the appellant in arriving at his decision to admit Mr. Los
    evidence excluding Kinkead. The appellant says that the trial judge ought not
    to have taken the identification evidence into account because the jury would
    not hear this evidence in light of the Crowns undertaking not to lead it.
    According to the appellant, the trial judge, in exercising his
Seaboyer
discretion, ought not to have
    considered inadmissible evidence that the jury would not hear.

[38]

The flaw in this argument is that the preliminary
    hearing evidence of identification was not determined to be inadmissible. The
    Crown had simply undertaken not to lead the evidence. The jury might well have
    still heard it, however, because it was open to the defence to choose to bring
    it out in order to try to expose the frailties of the evidence excluding
    Kinkead head on. For tactical reasons (and it was admittedly a difficult
    tactical decision), the defence opted not to do so and instead attempted to undermine
    the non-identification evidence alone.

[39]

In the end, we are not persuaded that the trial judge
    made any error in taking the identification evidence into account in reaching
    his ruling on admissibility.

ii) Failure to
    Hold a
Voir Dire

[40]

The appellant further submits that the trial judge
    compounded his error in admitting Mr. Los evidence by refusing to hold a
voir dire
during which Mr. Lo would be
    examined and cross-examined on his reasons for excluding Kinkead as the man in
    the walkway, apart from his previous line-up identification. As defence counsel
    put it at trial:

[Crown counsel], in his recitation of the
    examination [in-chief of Mr. Lo] he proposes, does not want to  does not
    intend to ask the question, what was different, and does not intend to ask the
    question, how did the man look in the witness box, what was he like, in order
    to make the comparison, which is the only basis on which this can have proper
    probative value.

... if this is a
    meaningful process of non-recognition, then it has to be made meaningful in
    legal terms. And the raw material to determine it and litigate it should be
    placed before the Court and not left to the vagaries and inevitable risks of
    counsels tactical decision-making.

[41]

The Crown argues that defence counsel did not seek a
voir dire
during the
Seaboyer
motion, but only requested it after
    that motion was lost. The Crown submits that defence counsel had solid tactical
    reasons for remaining ignorant of the basis for Mr. Los exclusion of Kinkead
    during the
Seaboyer
deliberations
    because that ignorance fed the defence position that the non-identification evidence
    was nothing more than the by-product of Mr. Los identification of the
    appellant at the preliminary hearing. Having lost the
Seaboyer
motion, defence counsel then in effect sought disclosure
    and a dry run for his trial cross-examination of Mr. Lo by way of a
voir dire
. But the Crown had nothing to
    disclose because, given its undertaking and the issues surrounding it, and
    fearful of allegations of witness tampering, it had studiously avoided speaking
    with Mr. Lo in advance of his testimony. Moreover, the Crown argues, the
    defence was not entitled to a preview of Mr. Los evidence in advance, or to
    have a dry run for cross-examination.

[42]

The trial judge accepted the Crowns position and refused
    to hold a
voir dire.
He ruled:

It is my view that,
    coupled with the Crowns approach in instructing the witness, as well as the
    fact that the witness will be led through this area, that [defence counsel] is
    a very skilled advocate who has, in my view, demonstrated his ability to
    formulate his questions in a manner that will minimize any risk of receiving
    answers which the Crown has instructed the witness to avoid, and, accordingly,
    under those circumstances, I see no reason why there should be a departure from
    the usual practice in respect of cross-examination.

[43]

At the same time, the trial judge observed that he
    thought Crown counsel understood that if there was disclosure to be made about
    the basis for Mr. Los exclusion of Kinkead, it should be made.

[44]

We see no error in the trial judges reasoning or in
    the way he crafted a resolution to the problem posed. There was nothing to
    prevent the defence from interviewing Mr. Lo off stage (as the Crown put it),
    if it wanted to, in order to determine what he would likely say. For the
    reasons outlined above, the Crown had nothing to disclose in that respect,
    since it had not itself interviewed the witness before the trial.

[45]

The trial judge was entitled to conclude, as he did,
    that there was no reason why Mr. Los cross-examination should not play out in
    the usual fashion without the advantage of a previous rehearsal. Again, the
    trial judges refusal to hold a
voir dire
in the circumstances was a discretionary ruling, and is entitled to
    considerable deference. We are not prepared to intervene. In so concluding, we
    note that defence counsel was able to conduct a meaningful cross-examination of
    Mr. Lo at the second trial.  He elicited
    that Mr. Los opinion at the preliminary excluding Kinkead was based on
    observations he made 16 months earlier and that he could not now point to any
    detail that would lead him to conclude that Kinkead was not the man he saw in
    the walkway.

iii) Did the
    Trial Judge Fail to Deal Adequately with the Frailties of Mr. Los Evidence in
    the Charge to the Jury?

[46]

The appellant also contends that the trial judges
    charge to the jury with respect to Mr. Los evidence was inadequate in the
    circumstances. We do not accept this submission either.

[47]

The trial judge properly instructed the jury that Mr.
    Los non-identification of Kinkead was analogous to an eyewitness
    identification of a person and therefore called for the type of charge that is
    normally given in connection with the well-known frailties of that type of
    testimony.

[48]

The appellant points out, however, that the trial judge
    failed to include in his instruction the customary caution that the jurors
    should not mistake the confidence and honesty of an eyewitness with the reliability
    of his or her testimony. In addition, he complains that the trial judge failed
    to give effect to defence counsels request at trial that he instruct the jury
    in a
Vetrovec
way perhaps  that it would be risky or dangerous to rely on Mr. Los
    exclusion of Kinkead as the person in the walkway on the morning of the
    murders.

[49]

The appellant contends that two other features of the
    trial judges instruction also play into the analysis. The first is the trial
    judges direction that the jurors could consider Mr. Los non-identification
    evidence when looking for corroboration of the testimony of Kinkead, a witness
    who was the subject of a very strong
Vetrovec
warning. The second is that the trial judge specifically drew the jurors
    attention at the end of his eyewitness testimony instructions to the fact that
    Mr. Lo was the only one of the walkway witnesses to have been specifically
    focusing on the facial features of the man and that he related the time he
    saw this person in his statements to the police as 7:30, when events were fresh
    in his mind. According to the appellant, the trial judges failure to caution
    the jurors that they should not confuse an eyewitnesss confidence and honesty with
    reliability, or to tell them it would be risky or dangerous to rely on Mr. Los
    testimony, when combined with the two positive instructions outlined above,
    resulted in a fatally flawed eyewitness testimony charge.

[50]

In our view, this argument cannot prevail. The two
    positive instructions were correctly given in the circumstances, and the two
    omissions are not fatal when the charge with respect to Mr. Los evidence is
    read as a whole. While it may have been preferable for the trial judge to include
    the customary confidence and honesty do not equal reliability caution, we are
    satisfied that, after hearing the instructions in their entirety, the jurors
    would understand that a non-identification like Mr. Los carried with it the
    same risks or dangers that characterize eyewitness identification evidence. The
    trial judge instructed the jury in relation to eyewitness testimony generally, that
    an honest witness may be mistaken and that seemingly honest eyewitness
    testimony has led to many miscarriages of justice in the past.

[51]

Moreover, the trial judge specifically instructed the
    jury that they:

should be cautious in
    evaluating Mr. Los statement that Kinkead was not the man he saw in the
    walkway, based on his observations of Kinkead at his preliminary hearing,
    because Mr. Los opinion was based on his observations 16 months later, and
    because Mr. Lo cannot now point to any detail which would lead him to conclude
    that Kinkead was not the man he saw.

[52]

In addition, as part of his overview of Mr. Los
    testimony, the trial judge highlighted for the jurors attention the principal arguments
    advanced by the defence as to why they should not rely on Mr. Los evidence,
    namely:

·

There was a critical issue about the timing of
    Mr. Los observations on the day of the murders. The defence contended that Mr.
    Lo was mistaken in testifying that he had taken the 7:35 bus that morning when he
    had probably taken the 7:20 bus. This timing meant that Mr. Lo in fact observed
    Kinkead in the walkway.

·

Based on the defence view of the evidence of two
    other witnesses, Mr. Lo was arguably mistaken about seeing
any
man in the walkway on the day of the murders.

·

It would make no sense for the appellant, who
    was known in the neighbourhood because he had been Marsha Otteys boyfriend for
    several years, to stand in the walkway where he could be easily identified.

[53]

We are satisfied that in the light of these cautionary notes
    sounded by the trial judge in his instructions regarding Mr. Los evidence, the
    trial judge was not also required to tell the jury that it was risky or
    dangerous to rely on it.

[54]

Finally, we note that immediately after dealing with
    Mr. Los evidence excluding Kinkead as the man in the walkway, the trial judge
    turned to the issue of the timing of his observations on the morning of the
    murders. He instructed the jury that they had to examine that evidence with
    great caution as well. He left it for the jury to determine whether the
    non-identification evidence, together with the timing evidence, carried
    sufficient weight to support a finding that the appellant was in the walkway on
    the morning of the homicides.

[55]

We conclude, therefore, that the trial judges instruction
    to the jury on how they should assess the value of Mr. Los evidence was
    sufficient in the circumstances.

Ground Two: Failure to Charge the Jury on the Defence Theory Concerning
    the Use of Kinkeads Prior Statements and Evidence

[56]

Following the trial judges instructions to the jury,
    defence counsel at trial objected to the failure of the trial judge to charge
    the jury on the defence theory that the evolution of Kinkeads various statements
    to the police provided circumstantial evidence that Kinkead acted alone in
    murdering the Ottey sisters and could therefore support a finding that Kinkeads
    initial statement to the police, in which he admitted the killings and said that
    he acted alone, was true.

[57]

The trial judge declined to re-charge the jury. The
    appellant renews his objection on appeal.

[58]

For the reasons that follow, we would not give effect
    to this ground of appeal.

Background  Kinkeads Prior
    Statements and Evidence

[59]

Toronto Police Service officers arrested Kinkead in
    Miami on February 17, 1996. They informed him that he was being charged with
    the August 16, 1995 murders of the Ottey sisters and three other crimes  the
    robbery-murder of the subway attendant and the two aggravated sexual assaults,
    all of which occurred in September-October 1995.

[60]

Following his arrest, Kinkead began to talk. Although
    he initially denied involvement in any of the crimes, after being confronted
    with DNA evidence linking him to the September-October 1995 crimes, he
    confessed to sole responsibility for those crimes as well as the Ottey murders.

[61]

When asked, in Miami, if the appellant was with him
    when he committed the Ottey murders, Kinkead said the appellant was not. Rather,
    Kinkead said he abducted one of the sisters outside the house (he thought it was
    Marsha). On entering the home, he called the other sister downstairs and then
    stabbed both young women to death. Kinkead told the police that he stole a
    camera, a Walkman, and other electronic shit from the home. He said he later
    threw the knife he used in the murders in a river.

[62]

Kinkead consented to his extradition and was soon on a
    flight back to Toronto. During the flight, he initiated a conversation with one
    of the police officers accompanying him, Detective Whitefield. He told
    Detective Whitefield: This is off the record. I didnt kill those girls  Off
    the record, it wasnt me; it wasnt Rohan either.

[63]

Following his return to Toronto, Kinkead gave a lengthy
    videotaped statement (508 pages of transcript) to the police on February 20,
    1996 in which he claimed that a man named Fuji from the drug world was
    responsible for murdering the Ottey sisters.

[64]

In the Fuji statement, Kinkead claimed that Fuji drove Kinkead
    to the Ottey home looking for the appellant. Once outside the home, Fuji
    grabbed one of the sisters and crouched beside her while the sister knocked on
    the door. Fuji and the sister he had accosted entered the home; Kinkead
    followed them in a few minutes later.

[65]

Inside the home, Fuji was waving a gun around and
    demanding to know where the appellant was. Kinkead helped Fuji tie up the
    sisters and then the two men ransacked the home to make it look like a home
    invasion. While Kinkead was upstairs, Fuji murdered the sisters. In his
    statement, Kinkead claimed that he was unaware of Fujis intentions, that he
    played no role in the killings and that, after discovering the murders he fled
    the home in a state of shock.

[66]

Kinkead completed the Fuji statement in the early
    morning hours of February 21, 1996. At about 2:50 a.m., he said to a Detective
    Wilson: You guys want me to say its Rohan. Detective Wilson responded: If
    its the truth, I do.

[67]

A short time later, Kinkead spoke to his father, who
    arrived at the police station in the early morning hours with a tape recorder.
    According to Kinkead, before going on tape, his father told him the appellant
    was in Jamaica. In a recorded discussion, Kinkead told his father that the
    appellant had killed the Ottey sisters and that he (Kinkead) had lied to the
    police to cover up for his cousin. Kinkead told his father that he had tried to
    stop the murders and that he had fled to Miami at the appellants suggestion.

[68]

Several hours after speaking to his father, Kinkead
    gave another videotaped statement to the police. In this statement, Kinkead
    told the police that the appellant phoned him at 6:30 a.m. on the day of the
    murders and subsequently picked him up at the Scarborough Town Centre. Ricardo
    Bernard was also in the car. The appellant drove to the vicinity of the Ottey
    home and parked the car on the street. When Tammy came out of the house, the
    appellant grabbed her and walked to the Otteys front door.

[69]

Tammy knocked on the door while the appellant hid. When
    the door was opened, the appellant and Tammy went inside the house. After a
    while, Kinkead followed them in. He went downstairs and saw Tammy lying in a
    pool of blood. The appellant was astride Marsha, holding a knife, and yelling
    at her. Kinkead tried to intervene but the appellant was too strong for him.
    Kinkead ran out of the house, but then he and Bernard, who was waiting in the
    car, returned to the Ottey home. They found the appellant ransacking the house
    and Kinkead fled, leaving the other two in the house.

[70]

Kinkead gave yet another version of events at the appellants
    first trial. Although the substance of his evidence remained relatively
    consistent at the appellants second trial, Kinkead acknowledged, at the second
    trial, that he had sensationalized his evidence at the appellants first
    trial because he was angry at him at the time.

[71]

At the second trial,
Kinkead
testified that he and the appellant planned to surprise Marsha with a trip to
    Canadas Wonderland on August 16, 1995 to celebrate her university scholarship.
    Kinkead claimed that he was involved in a sexual relationship with Tammy at the
    time and that she was in on the surprise. Tammy was to gain entry to the house
    while Kinkead and the appellant hid so their arrival would be a true surprise.

[72]

Instead of picking Kinkead up as planned, the appellant
    telephoned Kinkead on the morning of August 16, 1995 and asked him to come to
    the Scarborough Town Centre. Ricardo Bernard was with the appellant when Kinkead
    arrived. They dropped Bernard off while en route to the Ottey home. Tammy was
    waiting for the two men at the street corner. The appellant told Kinkead to go
    with her while he went to get some money. Kinkead got out of the car and walked
    with Tammy to the Ottey home where Marsha let them in.

[73]

Once inside, Kinkead and Tammy started kissing and
    fooling around on the main floor while Marsha went upstairs. The appellant
    arrived a short time later and went down to the basement with Marsha. Within
    minutes, Kinkead and Tammy heard loud arguing  they also heard something fall.
    They went downstairs, where Kinkead saw the appellant straddling Marsha as she
    lay on the ground. The appellant had a knife in his hand and was yelling
    angrily. Tammy fainted. Kinkead tried to pull the appellant off of Marsha but the
    appellant warned him off with his knife. Marsha tried to escape but the
    appellant hit her in the face and threatened to cut out her tongue.

[74]

Kinkead left and walked around for 20 or 30 minutes in
    an effort to calm down. He tried to call the Ottey home but the line was busy.
    He received a page from the appellant who told him to relax. He returned to the
    house because he had forgotten his hat. The house was a mess. He saw Marsha and
    Tammys bodies in the basement. He left the house and went home.

The Defence Closing

[75]

Defence counsel at the appellants second trial made a
    powerful closing argument to the jury that Kinkeads claim that he confessed
    initially to protect the appellant had no credibility and that his subsequent
    statements implicating the appellant reflected an ongoing effort to undo the damage
    he had done to himself. Moreover, counsel contended that the evolution in Kinkeads
    statements and evidence demonstrated that he was using his increasing knowledge
    of the Crowns case, gained from disclosure and testimony at the preliminary
    inquiry, to tailor his statements and evidence, thereby enhancing the
    credibility of his claim that the appellant was the killer. (As a simple
    example, defence counsel asserted that Kinkeads initial statements did not
    reflect an awareness that the appellant and Marsha had broken up, or that
    Marsha had obtained a scholarship to attend an American university.)

[76]

Further, defence counsel argued that the contradictions
    and evolutions in Kinkeads statements amounted to circumstantial evidence from
    which it could be inferred that Kinkead likely acted alone and that apparent
Vetrovec
corroborations provided by
    the evidence of other witnesses were, in fact, nothing more than modifications
    and changes manufactured by Kinkead as his knowledge of the case improved.

[77]

So, for example, defence counsel suggested that, when
    confronted during his original Miami statement with the DNA evidence linking
    him to the September-October 1995 crimes, Kinkead initially tested the waters
    with the police to see if he could shift the blame to the appellant for those
    crimes by trying to suggest the appellant may have worn his clothes. This was
    hardly the conduct of a person acting out of loyalty to his cousin or
    faithfulness to the code of the street (as defence counsel put it). And, if Kinkead
    was not acting out of loyalty to the appellant when he confessed to killing the
    Ottey sisters on his own in his Miami statement, what did that say about his
    subsequent statements to the police?

[78]

Further, defence counsel claimed that the evolution in
    matters such as Kinkeads narration of Ricardo Bernards involvement, his
    portrayal at the first trial of the appellant as a jealous and obsessive
    boyfriend and his modification of his story to allow for the observations of
    Mr. Lo all pointed to Kinkead adapting his story that the appellant was the
    killer to fit with the evidence in the case as he came to understand it. Not
    only that, but the omission of such details from Kinkeads earlier statements
    showed that he did not possess a credible story of the appellant as the killer
    when the earlier statements were made.

[79]

Defence counsel also argued that Kinkeads reference to
    the mysterious killer, Fuji, in his second statement to the police was in
    reality a reference to himself  as a fugitive. Moreover, parallels between Kinkeads
    statements to the police  all of which portrayed the abductor as the killer
    and Kinkeads trial evidence  in which he acknowledged that it was he who took
    Tammy to the door  amounted to circumstantial evidence that Kinkead was the
    killer and that he acted alone.

The Trial Crowns Objection to
    the Defence Closing

[80]

During the course of defence counsels closing address,
    the trial Crown objected to defence counsels submissions to the jury, claiming
    that defence counsel was inviting the jury to use Kinkeads unadopted prior
    statements for the truth of their contents.

[81]

The trial judge responded that it was not entirely
    clear at that point how the jury was being asked to treat Kinkeads statements.
    He said that defence counsel could carry on and that he [the trial judge] would
    do what he had to do to deal with it.

The Trial
    Judges Charge to the Jury

[82]

In his charge to the jury, the trial judge gave a
Vetrovec
caution concerning Kinkeads
    evidence. In particular, he instructed the jury that it would be unsafe to act
    alone on the evidence of Kinkead, in the absence of confirmatory evidence from
    another witness or from the crime scene itself, to conclude beyond a reasonable
    doubt that the accused, Rohan Ranger, was in the Ottey home on Wednesday,
    August 16, 1995. The trial judge referred to the evidence of Mr. Lo as a possible
    example of such confirmatory evidence.

[83]

The trial judge also pointed out that both counsel had
    emphasized in their closing addresses the dangers associated with Kinkeads
    evidence and even the Crown had acknowledged that the jury should not act on
    his evidence unless it was corroborated or confirmed by other testimony.

[84]

The trial judge then turned to the subject of prior
    inconsistent statements. He gave a standard instruction indicating that while
    unadopted prior inconsistent statements could be used to discredit the testimony
    of a witness, they could not be used to prove the truth of the contents of the
    prior statement.

[85]

As part of this instruction, the trial judge noted that
    Kinkead had made four prior statements to the police and that he testified at the
    appellants first trial. He pointed out that Kinkead had admitted that his
    first and second statements to the police, implicating himself and Fuji
    respectively, were untrue. Such statements could therefore be used only for the
    purpose of assessing Kinkeads credibility.

[86]

The trial judge also observed that while Kinkead had
    implicated the appellant in his third and fourth statements to the police,
    there were material differences between those statements and Kinkeads trial
    testimony that could be used to assess Kinkeads credibility. Finally, the
    trial judge noted that Kinkead acknowledged that he may have placed undue
    emphasis on certain matters at the appellants first trial, and reiterated
    that the jury could use differences in his testimony at the two trials to
    assess his credibility.

[87]

Concerning the defence position in relation to Kinkeads
    prior statements and evidence, the trial judge said this:

Now, Mr. Campbell spent a significant part of his
    address to you in developing the reasons for the inconsistencies between the
    first statement, or the Miami statement, and by attempting to demonstrate how
    the third and fourth statement implicating Mr. Ranger evolved as a result of
    the hole that Mr. Kinkead had dug for himself by confessing to be the sole killer
    of the Ottey sisters in the Miami statement.

Mr. Campbell submits that once the interest of the
    police in Mr. Rangers participation became clear to Mr. Kinkead, he falsified
    or fabricated the participation of Mr. Ranger on the basis of information which
    became available to him at the time of the third and fourth statement, and
    subsequently tailored his evidence implicating Mr. Ranger at the first trial to
    the information he received by way of disclosure and at the preliminary
    hearing.

If you accept
    Mr. Campbells analysis, you will, of course, have a powerful reason for
    rejecting the credibility of Mr. Kinkead at this trial implicating Mr. Ranger
    as a participant in the killing of the Ottey sisters.

However, as Mr. Kinkead has not adopted his Miami
    statement as true, you may not, as a matter of law, use the Miami statement as
    proof of the truth of its content, namely, his confession that he acted alone
    in killing the Ottey sisters. [Emphasis added.]

The Defence Objection to the
    Trial Judges Charge

[88]

Defence counsel at trial objected to the manner in
    which the trial judge charged the jury on the defence theory concerning Kinkeads
    prior statements and evidence. He noted that Kinkead had been put forward as a
    witness capable of being corroborated and submitted that there were two central
    features of the defence attack on Kinkeads evidence: one, that Kinkead was not
    to be believed at all, whether corroborated or not; and two, that the history
    and sequence and contents of his statements showed him to be the killer and
    that he acted alone.

[89]

Defence counsel claimed that the defence attack on Kinkeads
    evidence did not violate the rule against using prior inconsistent statements
    to prove the truth of their contents. He outlined four areas in which the trial
    judges instructions failed to convey the defence theory adequately.

[90]

First, the trial judge failed to refer to the defence
    arguments about the subtle meanings of Kinkeads statements to the police and
    his evidence, and how collectively they could all be viewed as confessions
    the Fuji as fugitive, namely Kinkead, argument relating to Kinkeads second
    statement to the police  and the significance of the abductor as killer theme
    in all of his police statements, coupled with his testimonial acknowledgements
    that he was the abductor.

[91]

Second, the trial judge failed to caution the jury adequately
    about the risk of relying on any evidence as corroborating Kinkeads testimony
    where it was apparent that Kinkead was tailoring his version of the events to
    fit with the other evidence.

[92]

Third, the trial judge failed to refer to the
    significance of various omissions from Kinkeads earliest police statements as
    demonstrating that Kinkead did not have a viable story of the appellant as the
    killer when the earlier statements were made.

[93]

Fourth, the trial judge failed to highlight three
    stages of the progression in Kinkeads statements supporting the defence theory
    that his statements constituted circumstantial evidence that he was the killer
    and acted alone, namely:

·

Kinkeads airplane conversation with Detective
    Whitefield in which he began the process of attempting to extricate himself
    from his Miami statement;

·

Kinkeads February 21, 1996 conversation with
    Detective Wilson in which he effectively offered to make a statement
    implicating the appellant; and

·

Kinkeads subsequent tailoring of his statements
    to fit with his evolving knowledge of the evidence.

The Trial
    Judges Ruling on the Defence Objection

[94]

The trial judge did not accede to the defence request
    that he re-charge the jury by summarizing the defence position in the manner
    requested.

[95]

In essence, the trial judge concluded that aspects of
    the defence position violated the rule against using prior inconsistent
    statements for the truth of their content. Moreover, the defence assertion that
    the evolution of Kinkeads statements constituted circumstantial evidence that
    he was the killer and that he acted alone was simply not correct.

[96]

In declining to re-charge the jury, the trial judge
    said this:

Mr. Campbell submits that by his demonstrating how
    Kinkeads version of events evolved as a result of pressure by the police to
    incriminate Mr. Ranger, and because of further information perhaps from the
    police and subsequently from the preliminary hearing and disclosure, and by
    drawing parallels, for example, from the second, or Fuji statement, and the
    fourth statement in which the killer [sic] and the murderer are the same
    person, he has demonstrated that Kinkead acted alone, which is essentially what
    Kinkead said in his first statement, or Miami statement, but which he has not
    adopted.

I do not
    agree
, nor have I charged the jury in that way.
The analysis posits that the Miami statement is true in its essential
    elements, that is, that Kinkead acted alone, otherwise the theory that the
    second, third and fourth statements were derived on the basis of further
    information made available to Kinkead as a result of police pressure to
    incriminate Mr. Ranger is not sustainable
. While Kinkead has not adopted,
    for example, the truth of the statement that the abductor in Fuji and also in
    the fourth statement was also the murderer,
Mr.
    Campbell nevertheless seeks to rely on those aspects of the statement and must
    invite the jury to accept them as true in order to sustain his position that
    Kinkead is acting alone
.

Secondly,
even
    if Mr. Campbell is successful in demonstrating that the evolution of the
    version of events
beginning with the Miami statement to his evidence at
    this trial
has resulted
from police
    pressure to implicate Mr. Ranger, his interest to extricate himself,
the tailoring of the statements and evidence
to information obtained at the preliminary hearing and by way of disclosure
does not, in my view, prove that he acted
    alone, but only proves, if the analysis is accepted, how he lied, and it is
    highly germane to his credibility at trial where he has sought to implicate Mr.
    Ranger
. [Emphasis added.]

The Appellants Position on
    Appeal

[97]

On appeal, the appellant reiterates the defence
    objection at trial to the jury charge. He claims that by failing to charge the
    jury in the manner requested, the trial judge deprived the appellant of the
    right to use Kinkeads prior statements and evidence in a proper way  namely,
    as a piece of circumstantial evidence that demonstrated the truth of Kinkeads
    Miami statement in which he admitted he killed the Ottey sisters and that he
    acted alone.

[98]

This, says the appellant, was the only effective
    response to the presentation of Kinkead as a witness whose evidence was capable
    of being corroborated. Moreover, it was the only effective response to the
    repeated statements to the jury by both the trial judge and the Crown that the
    jury could not use Kinkeads Miami confession to prove the truth of its contents.

[99]

The appellant outlines
    the essential elements of what the trial judge should have told the jury about
    the defence position as follows:

·

by
    examining Kinkeads various statements and his evidence and bearing in mind the
    extraneous facts being made available to Kinkead as matters progressed, the
    jury could draw two conclusions:

o

first,
    Kinkead did not tell the truth before the jury  that was apparent from the
    manner and origins of the changes in his version of the events;

o

second,
    Kinkead did tell the truth in Miami. That was apparent because his Miami
    confession matched the known facts about the murders  and also because the
    changes in his story and how they came about demonstrated an attempt to undo
    the damage he did to himself in Miami and an effort to appear convincing as he
    did so.

·

accordingly,
    while the jury could not use Kinkeads Miami statement to prove the truth of
    its contents, the circumstantial evidence demonstrated that, in fact, the
    statement was true.

Discussion

[100]

We do not accept the appellants submissions.

[101]

In our view, the trial judge was correct in holding
    that certain aspects of the defence closing violated the rule against using
    unadopted prior inconsistent statements to prove the truth of their contents.

[102]

Further, we agree with the trial judges conclusion
    that the fact that Kinkead may have tailored his evidence in the manner
    suggested by the defence did not assist in proving that he was the killer and
    that he acted alone. It only tended to prove how he lied, as the trial judge
    noted.

[103]

Although the appellant claims that defence counsels
    closing submissions did not violate the rule against using unadopted prior
    inconsistent statements to prove the truth of their contents, all of defence
    counsels suggestions that Kinkeads statements amounted to circumstantial
    evidence that Kinkead acted alone relied on the truth of a prior statement for
    their premise and therefore violated the rule. We give the following examples:

·

the abductor as killer theme relied on the
    truth of Kinkeads Miami statement that he was the abductor and that he killed
    the Ottey sisters acting alone;

·

the Kinkead as Fuji as killer theory relied on
    the truth of the Fuji statement;

·

the tailored evidence submission consisted of
    three parts: i) Kinkead was lying at trial when he claimed that he was
    motivated by a code of honour and a desire to protect the appellant in the
    Miami statement; ii) Kinkead changed his story and added details to fit with
    other evidence as he obtained disclosure and listened to evidence at the
    preliminary inquiry, and iii) Kinkeads early statements lacked some of the
    details that emerged in later statements because Kinkead did not have a viable
    story of the appellant as the killer when the earlier statements were made.

To the extent that
    it is argued that parts i) and ii) of this submission support an inference that
    Kinkead acted alone in killing the Ottey sisters (in addition to the inference
    that Kinkead is a liar), the argument relies on an assumption that Kinkeads Miami
    confession is true. Part iii) of this submission relies entirely on an
    assumption that the Miami confession is true and does not contemplate the
    possibility that Kinkead withheld matters within his knowledge in the earlier
    statements.

[104]

Similarly, in the absence of an assumption that Kinkeads
    Miami statement is true, the tailored evidence submission simply does not
    assist in proving that Kinkead acted alone in killing the Ottey sisters. On the
    contrary, it is equally consistent with a theory that the appellant and Kinkead
    acted in concert in killing the young women and that, after initially lying
    about the appellants involvement for whatever reason, Kinkead had a change of
    heart and tailored his evidence in an effort to minimize his own role and blame
    the appellant.

[105]

In these circumstances, in our view, the trial judge
    was entirely correct in declining to instruct the jury on the defence theory
    that Kinkeads statements could be used as circumstantial evidence that Kinkead
    acted alone and could therefore support a finding that the Miami statement was
    true.

[106]

Further, while we consider that it would have been open
    to the trial judge to re-charge the jury to emphasize that they should be
    cautious in assessing Mr. Los evidence, and, in particular, bear in mind the
    defence submission that Kinkead was tailoring his evidence to fit with Mr. Los
    evidence, we are not persuaded that the trial judge erred in failing to do so.

[107]

As we said above when addressing Mr. Los evidence, the
    trial judge instructed the jury to be cautious before accepting his evidence
    about the identity of the person he saw in the walkway and about the timing of
    his observations. Also as we noted above, the trial judge told the jury that if
    they accepted the defence submission that Kinkead was tailoring his evidence, they
    would have a powerful reason for rejecting the credibility of Kinkead at this
    trial implicating Mr. Ranger as a participant in the killing of the Ottey
    sisters.

[108]

In the face of these instructions, it could not have
    been lost on the jury that they should be cautious in assessing Mr. Los
    evidence and bear in mind the defence submissions.  At the end of the day, we are satisfied that
    the jury would have understood that they had to carefully consider whether
    Kinkead tailored his evidence before them.

[109]

In this regard, we note as well that the jury
    demonstrated by the questions they posed during deliberations that they were
    alive to the central issue in the case, namely, whether the appellant was
    present in the Ottey home at the time of the murders, and that they understood
    that the evidence of Mr. Lo and other walkway witnesses was critical to
    evaluating this issue.

[110]

For these reasons, we would not give effect to this
    ground of appeal.

Ground Three: The
    Trial Judge Erred in Excluding Evidence of Kinkeads Motive

[111]

The
    appellant contends that the trial judge erred by preventing him from adducing
    evidence from two witnesses, Andr
é
Williams and M.S., which he says would have undermined the Crowns
    suggestion that Kinkead had no motive of his own to murder the Ottey sisters.

André Williams

[112]

The appellant submits that the trial
    judge erred in refusing to allow him to cross-examine Mr. Williams about a
    telephone conversation he had with Marsha Ottey in mid-June 1995, approximately
    two months before Marsha was murdered. In the conversation, which Mr. Williams
    reported to the police in September 1995 (some three weeks after the murder),
    he claimed that Marsha told him that Kinkead had become homosexual or bisexual,
    that he had developed an attraction to the appellant, and that he was jealous
    of her relationship with the appellant and had come to despise her. She further
    told Mr. Williams that when the appellant found out about that, he told
    Kinkead, who had been living with him, to leave. (According to the evidence,
    Kinkead and the appellant stopped living together in 1993, some two years
    before Marsha was murdered.)

[113]

At the time of trial, Mr. Williams
    had no present recollection of the conversation in question. He maintained,
    however, that the content of his statement to the police in which he recounted
    the statement was accurate. He remembered being shocked by what Marsha had told
    him.

[114]

The appellant sought to adduce Marshas
    conversation with Mr. Williams for the truth of its contents. Alternatively, he
    sought to introduce it for the fact that it had been said. According to the
    appellant, the conversation showed that Kinkead had a motive to kill Marsha and
    it supported his position that Kinkead acted alone in killing Marsha and Tammy
    Ottey.

[115]

The trial judge refused the
    appellants request to adduce the conversation. In his view, the proposed
    evidence was not admissible for its truth based on the principled approach to
    the admission of hearsay evidence.

[116]

In this regard, the trial judge
    found that the criteria of necessity had not been satisfied because it
    appeared highly probable  on the record that the appellant was the source
    of the information Marsha conveyed to
André
Williams. Hence, the appellant could testify
    to this subject matter himself. Moreover, if the appellant was the source of
    the information, it was not open to him to elicit from a witness a statement
    [he] made out of court. The trial judge was also concerned about the
    reliability of the contents of the conversation. In his view, the information
    could have come to Marsha from any number of sources, including Ranger himself,
    Mr. Kinkead, rumours or even partially from the personal observations of Marsha.
    And because the source of the information was so speculative, it did not pass
    the reliability threshold needed to warrant its admission as original evidence.

[117]

Finally, the trial judge held that
    the proposed evidence was not admissible to prove that the statements [had
    been] made since in his view, the fact that they may have been made was not
    relevant to the issues in this case.

[118]

In our view, the trial judge applied
    the correct legal principles to the facts as he found them. Given his findings of
    fact, which are supportable on the evidence, we are not persuaded that he erred
    in exercising his discretion as he did.

M.S
.

[119]

The appellant also sought to
    introduce the evidence of M.S., a woman whom he befriended while living with
    Kinkead in the early 1990s. M.S. was prepared to testify that Kinkead resented
    her relationship with the appellant and was jealous of it. On one occasion when
    she came to visit the appellant, Kinkead was home alone. According to M.S., he
    asked her why she had come to see the appellant and not him. He then held a
    sword to her throat and raped her.

[120]

In refusing to allow the appellant
    to lead this evidence, the trial judge noted that the appellant wanted it
    before the jury to show that Kinkead will become jealous, resentful and
    ultimately violently revengeful if a woman prefers Mr. Ranger over him, or if a
    woman interferes with the attention that Mr. Kinkead expects Mr. Ranger to pay
    to him. The trial judge rejected the proposed evidence for several reasons.

[121]

Fundamentally, he noted that there
    was no admissible evidence showing that Kinkead was jealous of the relationship
    between Marsha Ottey and the appellant. In this regard, he observed that during
    the height of their relationship in 1992 and 1993, there was no evidence of
    any animosity, either attitudinal or physical, of Mr. Kinkead against Marsha.

[122]

Viewed in its totality, the trial
    judge was not persuaded that the relationship between Mr. Kinkead, [Rohan
    Ranger] and [M.S.] ha[d] any similarity to the relationship between Mr.
    Kinkead, [Rohan Ranger] and Marsha Ottey. At best, the link was speculative
    and remote. Hence, in the trial judges view, M.S.s evidence was irrelevant
    to any issue in the case.

[123]

We would not interfere with the
    trial judges ruling.  It is largely
    fact-driven and we can find no errors in his analysis or conclusion. Indeed, we
    agree that the proposed evidence of this witness was irrelevant and would only
    have served as a distraction.

[124]

Hence this ground of appeal fails.

Ground Four: The Trial Judge Erred in Excluding Evidence Related to Kinkeads
    Pattern of Behaviour

[125]

The
    defence at trial attempted to show that the murders reflected the pattern of
    crimes that Kinkead had committed.  The
    Crown took the opposing view, arguing that the murders did not bear his
    stamp.

[126]

One issue in this regard related to whether
    the items stolen from the Ottey home, particularly Marshas gold necklace,
    reflected Kinkeads pattern of behaviour. The defence wanted to lead evidence
    from the owner of a Beckers store, Sofyan Yacob, and the investigating
    officer, Detective Earl, that Kinkead had stolen a gold chain from the victims
    neck during a robbery he committed at the store.

[127]

The defence also wanted to lead evidence from
    Kinkeads girlfriend, M.D., to establish that the circumstances of the Ottey
    murders corresponded with Kinkeads pattern of behaviour during other criminal
    assaults that he had committed before the murders.

[128]

We deal with these two areas of proposed
    evidence in turn.

Evidence
    of Sofyan Yacob and Detective Earl

[129]

At
    trial,
the appellant sought to
    adduce evidence from Mr.
Yacob
and Detective Earl regarding a robbery that Kinkead was believed to
    have committed on May 26, 1993 at a Beckers store where Mr.
Yacob
was working. Detective Earl was the
    officer in charge who arrested Kinkead in connection with the robbery.

[130]

Kinkead denied committing the
    robbery and Mr.
Yacob
could not identify him. Although there was some circumstantial evidence
    implicating Kinkead as the robber, the charge against him was eventually
    withdrawn.

[131]

In the course of the robbery, the
    robber snatched a gold chain from Mr. Y
acob
s neck. According to the appellant, if the
    jury was satisfied that Kinkead stole Mr.
Yacob
s gold chain, this would support his position
    that it was Kinkead, acting alone, who killed Marsha and stole her gold
    necklace, just as he had stolen Mr. Y
acob
s gold chain.

[132]

The trial judge refused to permit
    Mr.
Yacob
to testify.
    In his view, there was insufficient evidence to prove that Kinkead was the
    robber. Hence, he concluded that the proposed evidence had no probative value.

[133]

In our view, it was open to the
    trial judge to reach that conclusion. Moreover, given that Kinkead disputed his
    involvement in the robbery, the trial judge was no doubt concerned about the
    time it would take to adduce the robbery evidence, as well as the risk that it
    could deflect the jurys attention from its main task. In this regard, Mr. Yacobs
    evidence aside, there was ample evidence that Kinkead had a penchant for gold.
    He admitted as much in his testimony and agreed that he had taken gold items
    from victims of other crimes.

[134]

The problem with the appellants
    theory  which would have been obvious to the jury  was that the gold necklace
    Marsha was wearing was given to her by the appellant. As such, it would have
    had special meaning to him, not Kinkead. Moreover, as the Crown pointed out,
    other items of jewellery, including gold items, were left behind at the Ottey
    household. This too diminished the value of Mr. Yacobs proposed evidence as it
    pointed away from Kinkead as the lone killer.

[135]

In sum, taking all of these factors
    into account, we are not persuaded that the trial judges ruling was wrong or
    that it occasioned any prejudice to the appellant. Accordingly, this ground of
    appeal fails.

Evidence of M.D
.

[136]

As we have said, in September and
    October 1995, Kinkead went on a crime spree in which he sexually assaulted two
    women who were strangers to him and murdered a TTC collector during a robbery.

[137]

At the appellants trial, Kinkead
    told the jury that he began this spree of violence, in part, because of the
    trauma he experienced from witnessing the appellant kill Marsha and Tammy
    Ottey.

[138]

The appellant sought to rebut
    Kinkeads explanation for his violent conduct which, if believed, directly
    implicated the appellant in the Ottey murders. To that end, he sought to adduce
    evidence from M.D., the mother of Kinkeads child, who was prepared to state
    that several months before the Ottey murders, Kinkead brutally assaulted her.

[139]

According to the appellant, M.D.s
    evidence was admissible for two reasons. First, it put the lie to Kinkeads
    explanation for the violence he exhibited in September and October 1995 and
    supported the appellants claim that the Ottey murders fit within Kinkeads
    pre-existing pattern of violent conduct. Second, it lent support to the
    appellants contention that Kinkead was the lone killer and that his purpose in
    implicating the appellant in the Ottey murders was to reduce his personal level
    of culpability.

[140]

The trial judge refused to admit
    M.D.s evidence. In his view, putting the lie to Mr. Kinkeads justification
    for his criminal acts by adducing the evidence of [M.D.] was not relevant to
    the jurys appreciation of the direct evidence that the [appellant] killed the
    Ottey sisters, except on the issue of general credibility.

[141]

In ruling as he did, the trial judge
    took into account the fact that Kinkead had consistently denied M.D.s
    allegations and that allowing her to give the proposed evidence would engage
    the jury essentially in a retrial of prior allegations against the accused [
sic
Kinkead] which she subsequently
    recanted.

[142]

We would not interfere with the
    trial judges ruling. The proposed evidence from M.D. amounted to an attack on the
    collateral issue of Kinkeads explanation for having engaged in his crime spree
    in the months after the Ottey murders. Furthermore, we agree with the Crowns
    submission that evidence from M.D. proving that the appellants presence at the
    murders could not have provided the trigger for Kinkeads later criminality
    would say nothing about whether the appellant
was
[in fact] present for the murders (emphasis in original).

[143]

Accordingly, this ground of appeal
    fails.

Ground Five: The
    Trial Judge Erred in Admitting Unreliable Hearsay Evidence

[144]

The trial Crown applied to admit for
    the truth of their contents a number of hearsay statements made by Marsha Ottey
    in which she expressed fear of the appellant due to his jealousy and repeated
    threats of violence towards her. In the last 14 months of her life, Marsha related
    in separate conversations with five of her friends that the appellant had
    threatened her with a gun. The trial judge rejected the evidence of three of
    these witnesses, not because it was unreliable, but because he considered it to
    be imprecise and redundant. He took a different view with respect to the
    evidence of the remaining two witnesses, Paula Wade and Adrian Jordan,
    whom he permitted to testify.

[145]

The appellant in his factum contends
    that the trial judge ought to have excluded the hearsay evidence of both Ms.
    Wade and Mr. Jordan. Ms. Wade, who was a close friend of Marsha, testified that
    Marsha told her in the spring of 1994 that when Marsha informed the appellant
    she was going away to university, the appellant put a gun to her head and told
    her if she ever tried to leave him, he would kill her. In oral argument, the
    appellant did not press the argument that Ms. Wades evidence ought to have
    been excluded and we see
no merit in it.

[146]

Mr.
Jordan, another of Marshas
    friends, was permitted to testify that in July 1995, Marsha told him that the
    appellant did not want to break-up with her and she described an incident at a
    park where he threatened her with a knife to prevent her from ending their
    relationship. According to Mr. Jordan, in a further conversation with Marsha
    one week later, she told him that the appellant had used a gun, not a knife, to
    intimidate her.

[147]

In deciding whether to permit Mr.
    Jordan to testify about his conversations with Marsha, the trial judge
    expressed a concern about threshold reliability because of the material, and
    apparently unexplained, change in Marshas two statements as to the weapon the
    appellant had used when threatening her. However, in light of
R. v. Starr
, [2000] 2 S.C.R. 144, which
    was then controlling, the trial judge accepted that the inconsistencies in
    Marshas statements were matters of ultimate reliability and have no bearing
    on the issue of threshold reliability. Accordingly, he allowed Mr. Jordan to
    give the impugned evidence.

[148]

The appellant now argues that
Starr
has been overtaken by
R. v. Khelawon
, [2006] 2 S.C.R. 787, and
    that the trial judge therefore erred in not factoring the inconsistencies in
    Marshas two statements into his threshold reliability analysis. Had he done
    so, the appellant contends, he would have rejected Mr. Jordans evidence.

[149]

We disagree. In light of
Khelawon
, we acknowledge that the trial
    judge could have considered the inconsistencies in Marshas statements in
    assessing threshold reliability. That said, he also could have considered Ms.
    Wades statement and the statements from Marshas three other friends, found to
    be reliable, in which Marsha complained about the appellant threatening her
    with a gun. Had he done so, we are satisfied that his ruling would have
    remained the same.

[150]

Even if Mr. Jordans evidence should
    not have been admitted, its exclusion could not, in our view, reasonably have
    affected the verdict. The jury was entitled to hear Ms. Wades evidence on the
    subject. Had the trial judge excluded Mr. Jordans evidence, he might well
    have admitted the evidence of one or more of the other three witnesses to whom
    Marsha confided about the appellants use of a gun.

[151]

Further, whether the appellant
    threatened Marsha with a gun or a knife is of little consequence in our view.
    Marsha was stabbed to death; she was not shot. In the circumstances, the fact
    that the appellant may have possessed a gun and threatened Marsha with it on
    occasion takes on less significance given the way in which she was killed.

[152]

In the end, even if Mr. Jordans
    evidence should not have been admitted, it did not result in prejudice
    warranting appellate intervention.

[153]

Accordingly,
    this ground of appeal fails.

Ground Six:
The
Trial Judge Erred in Ruling that the Crown Need Not Lead
    the Appellants Statement to Police

[154]

Upon his arrest, the appellant
    provided the police with a lengthy statement that was conceded to be voluntary.
    The Crown did not wish to lead that statement in-chief but sought permission to
    use it for cross-examination purposes, should the appellant give evidence.

[155]

In acceding to the Crowns request,
    the trial judge accepted the Crowns submission that the appellants statement
    was exculpatory on its face and that it was only minimally or marginally
    relevant to the Crowns case at the present time. Accordingly, he ruled that
    the Crown did not have to adduce the statement in its case in-chief.

[156]

The trial judge also made it clear
    that if the appellant did take the stand, the Crown could only use the
    statement to impeach his credibility. The Crown could not use it to establish
    guilt and the jury would be told that any inconsistencies between the
    appellants testimony and his statement could only go to the issue of the
    accuseds general credibility and could not be used as consciousness of
    guilt or as having any relevance to the jurys determination of the guilt of
    the accused.

[157]

The appellant submits that the trial
    judges ruling was wrong in law in that it permitted the Crown to improperly
    split its case.

[158]

We disagree. In our view, it was
    open to the trial judge to conclude that the appellants primarily exculpatory statement
    was only minimally or marginally relevant to the Crowns case and hence the Crown
    was not obliged to lead it as part of its case. The appellant has no basis to
    complain about either the remainder of the trial judges ruling as to the
    limited use the Crown could make of it, or the instructions the jury would
    receive.

[159]

Accordingly this ground of appeal
    fails.

CONCLUSION

[160]

For the foregoing reasons, we would not give effect to
    any of the appellants grounds of appeal. As noted, apart from one minor
    matter, the trial judge made no errors in his evidentiary rulings. Nor did he
    err in his instructions to the jury. The appeal is therefore dismissed.

Signed:           M.J. Moldaver J.A

Janet Simmons J.A.

R.
    A. Blair J.A.

RELEASED: MJM April 20, 2011

[1]
This overview of the facts relies largely on the facts as set out in the first
    Court of Appeal decision in this case. See
R.
    v. Ranger
(2003), 67 O.R. (3d) 1.  The salient facts at the second trial remained the same.

[2]

R v. Seaboyer,
[1991] 2
    S.C.R. 577.


CITATION:
R. v. Roberts, 2011
          ONCA 261

DATE: 20110406

DOCKET: C51950

COURT OF APPEAL FOR ONTARIO

Rosenberg, Juriansz and LaForme JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

David Roberts

Appellant

Brian A. Callender, for the appellant

David Lepofsky, for the respondent

Heard and endorsed: April 4, 2011

On appeal from sentence imposed by Justice Kristine Bignell of
          the Ontario Court of Justice on May 5, 2009.

APPEAL BOOK ENDORSEMENT

[1]

In our view, the sentence for this very serious offence
    was fit, particularly having regard to the appellants record for violence,
    which appears to be escalating in seriousness.  We see no error in principle; the trial judge gave appropriate weight to
    the guilty plea.

[2]

While leave to appeal sentence is granted, the appeal
    is dismissed.