COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Spence, 2018 ONCA 427

DATE: 20180507

DOCKET: C55613

Doherty, van Rensburg and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lenworth Spence

Appellant

Catriona Verner and Lance Beechener, for the appellant

Elise Nakelsky, for the respondent

Heard: April 5, 2018

On appeal from the conviction
    entered by Justice Peter H. Howden of the Superior Court of Justice on
    September 23, 2011, with reasons reported at 2011 ONSC 5587.

Doherty J.A.:

I

[1]

On the morning of March 7, 2007, two vehicles stopped on the side of a
    country road north of Barrie. Lenworth Spence (the appellant) and Terrence
    Walker were in one car. Tafari Williams, Gregory Millar, Andrew Turner and
    Jonathan Chambers were in the other. Turner and Chambers exited their vehicle.
    Turner shot Chambers several times in the head. Turner got back into the
    vehicle he had exited and the two vehicles drove away, leaving Chambers dead
    near the roadside. His body was discovered later that day.

[2]

The police eventually charged everyone in the two vehicles. Turner, Walker
    and Millar pled guilty to manslaughter. Williams was charged with and pled
    guilty to being an accessory after-the-fact to murder. The appellant was tried
    on a charge of first degree murder by a judge alone.
[1]
He was convicted on that charge and sentenced to the mandatory term of life
    imprisonment without eligibility for parole for 25 years.
[2]
He appeals his conviction only. For the reasons that follow, I would dismiss
    the appeal.

II

[3]

The case for the Crown relied to a large extent on the evidence of
    Williams, Walker and Millar. All three had entered into plea agreements and had
    co-operated with the prosecution in exchange for reduced sentences. All three led
    criminal lifestyles and were involved in the events culminating in Chambers
    murder. Different parts of the evidence of each were shown by independent
    reliable evidence to be demonstrably false. Both Walker and Millar recanted the
    statements they had given to the police during their testimony. Millar then
    recanted part of the recantation. The trial judge ultimately admitted the
    out-of-court statements made by Walker and Millar for the truth of their
    contents.

[4]

The trial judge examined the evidence of the three accomplices at
    length. He was alive to the many frailties in their evidence. In the end, he
    concluded that Williams was credible. The trial judge accepted significant
    parts of Williams evidence, which he found to be confirmed in material ways by
    evidence independent of Williams (paras. 416 and 424).
[3]
With respect to Walker, the trial judge found that, while parts of his evidence
    were confirmed by independent evidence, his evidence still had to be approached
    with caution (paras. 354-55). In respect of Millar, the trial judge was blunt, writing
    at para. 356:

Apart from an instance where Gregory Millars evidence is
    supported by an objective credible source, I will not rely on his evidence or
    his B.(K.G.) statement for any conclusion that I draw factually. His testimony
    in court was a disgrace to himself and to rely on it would only compound the
    insult his performance posed to the court.

[5]

The appellant did not testify, but the defence called two witnesses.
    Only one, Quentin Gibon, testified about the relevant events. He was present at
    Turners residence with the appellant, Chambers and others the night before the
    murder. The trial judge found Mr. Gibon to be biased in favour of the appellant.
    The trial judge rejected most of his evidence, although he did conclude that it
    confirmed, to some extent, Williams evidence about the appellants anger
    toward Chambers the night before the murder (paras. 320-25).

III

[6]

The narrative that unfolded in the evidence of the three accomplices,
    especially Williams, began a few days before the murder. Chambers, a drug
    dealer, was trying to arrange for two associates to purchase a kilogram of
    cocaine. He approached Williams. He and Williams were long-time friends and had
    dealt drugs together in the past. Williams was an accomplished, large-scale
    drug dealer. He was higher on the drug dealing hierarchy than either Chambers
    or the appellant.

[7]

Williams did not have enough cocaine readily available to fill the
    order. He contacted the appellant to see if he could provide the cocaine.
    Williams and the appellant were friends with a history of working together in
    drug transactions. By the early evening of March 6, the details of the drug transaction
    had been worked out. The appellant, in possession of 1.5 kilograms of cocaine,
    was on his way with Chambers to meet the purchasers who had agreed to pay
    $52,000 for the cocaine.

[8]

The appellant and Chambers met the purchasers at around 8:30 p.m. near
    the appellants condominium. Chambers got into the buyers car. He turned over
    the cocaine and received what he believed to be $52,000 in cash. The buyers
    left with the cocaine and the appellant and Chambers returned to the
    appellants condominium. When the appellant looked at the bundles of cash, he
    realized that he had been duped. There were a few genuine bills on the outside
    of the bundles, but the rest of the cash consisted of paper cut to the size
    of bills.

[9]

After an aborted attempt to catch up to the purchasers, the appellant
    called Williams, who was at Turners apartment in Brampton. The appellant and
    Chambers went to Turners apartment to talk with Williams about the rip off.
    The appellant was angry and made it clear that he believed that Chambers was
    involved in the rip off. Williams was more sanguine and was concerned
    primarily with recovering the lost cocaine or the unpaid purchase price.

[10]

A
    number of people gathered at Turners apartment during the evening of March 6.
    Some, like Walker, were closely associated with Williams. Others, like Millar,
    were associated with the appellant.

[11]

During
    the evening, Chambers was threatened, both physically and with a gun, tied up
    and repeatedly assaulted. He insisted he was not party to any rip off. Phone
    calls were made by Chambers, at the insistence of the appellant and others, to
    friends and associates of Chambers, demanding that they come up with the cash
    that had been lost in the transaction.

[12]

Williams
    testified that during the evening, the appellant produced a handgun and
    threatened Chambers. The appellant gave the handgun to Turner at one point in
    the evening. Turner also assaulted Chambers. On the Crowns theory, this was
    the gun used to murder Chambers the next day.

[13]

Williams
    testified that the appellant told him during the evening of March 6 that he
    wanted to kill Chambers as a lesson to others who might be inclined to cheat
    him. Williams indicated that he tried to convince the appellant that they
    should focus on getting the money. Williams believed that as the evening went
    on the appellant calmed down and agreed that they should concentrate on the
    money. When Williams went to bed that night, he thought they were going to take
    steps to get the money the next day. He did not anticipate that anything would
    happen to Chambers.

[14]

The
    next day, shortly after 8:00 a.m. on March 7, the appellant, Williams,
    Chambers, Walker, Millar and Turner all left Turners apartment. Williams
    testified that he believed they were headed to Toronto to meet a person who
    could help them get to the bottom of the rip off the night before. After the
    six men exited the apartment building, Turner, Chambers, Williams and Millar
    got into one vehicle. Millar was driving. Williams was in the front seat. Chambers
    and Turner were in the backseat. Walker and the appellant got into the second
    vehicle. Walker was driving and the appellant was sitting in the front seat.

[15]

The
    two vehicles drove in tandem south to Highway 407 and then east toward Toronto.
    At the Highway 400 exit, Millars vehicle took the exit north toward Barrie.
    Walkers vehicle followed right behind.

[16]

Williams
    testified that he was surprised when the vehicles headed north towards Barrie.
    He had no idea where they were going and did not inquire. Walker testified that
    he turned north following Millars vehicle. Meanwhile, the appellant was on the
    cellphone constantly. Walker indicated that he pressed the appellant for some
    explanation of what was going on, but the appellant only told him that Chambers
    had messed up the drug deal the previous evening.

[17]

Millar
    testified that he had no idea why he was driving north towards Barrie and that
    he was following Williams instructions. In his statement to the police,
    subsequently admitted for the truth, Millar had said the appellant gave all of
    the instructions.

[18]

The
    vehicles proceeded north until they pulled over one behind the other on an
    isolated country road north of Barrie. Williams testified that Turner and
    Chambers got out of the vehicle. He could not recall any conversation. By this
    point, Williams expected that something bad was going to happen to Chambers,
    but he said nothing. Turner shot Chambers in the head and returned to the
    vehicle. There was no conversation. The vehicles left the scene and drove back
    to Toronto in tandem.

[19]

Walker
    testified that he pulled up behind the Millar vehicle and saw Turner and
    Chambers get out of the vehicle. Neither he nor the appellant got out of their
    vehicle. Walker indicated that he was shocked when Turner shot Chambers, but
    that the appellant had no reaction. According to Walker, he was angry on the
    drive back to Toronto because he was now implicated in a murder that he was not
    involved in and wanted nothing to do with.

[20]

The
    two vehicles drove back to Walkers residence in Toronto. There were discussions
    about the gun. Walker said he would hold it subject to further instructions.
    Walker testified that Williams was upset about the shooting, but the appellant
    insisted that there was no chance that they would recover the money from
    Chambers and that it was important to send a message to other drug dealers. In Millars
    statement, he also indicated that Williams described the killing as unnecessary.
    The appellant replied, it is what it is.

IV

[21]

The
    case for the Crown rested on five evidentiary building blocks. First the Crown
    argued that the appellant had motive. He had a financial interest in the failed
    drug transaction. All, or a significant part, of the cocaine belonged to the
    appellant and he was out $52,000. The appellant was also embarrassed by the way
    he had been duped. He had strong reason to seek retribution against Chambers and
    to send a message to others in the drug dealing community by killing Chambers.

[22]

Second,
    the Crown argued that the appellant was very angry with Chambers during the
    evening of March 6 and the early morning of March 7. The appellant assaulted
    and threatened Chambers, both physically and with a gun. The appellant demanded
    that Chambers act immediately to recover the drugs or the money and became
    upset when Chambers efforts failed.

[23]

Third,
    the Crown relied on the evidence placing the appellant in the group of men that
    left Turners apartment with Chambers and drove away. The Crown contended that
    the evidence showed that the appellant was involved in coordinating the trip
    north with his good friend, Millar, who was driving the lead vehicle. Millar
    knew the Barrie area.

[24]

Fourth,
    the Crown relied on the evidence placing the appellant at the scene of the
    murder, the absence of any reaction by him to the shooting, and the appellants
    return to Walkers residence with the murderer, Turner, and others after the
    murder.

[25]

Finally,
    the Crown argued that the gun used to commit the murder belonged to or at least
    came from the appellant.

[26]

The
    defence focused primarily on the credibility of the three main Crown witnesses
    and the unreliability of their evidence. The defence argued that their evidence
    was demonstrably untrue in many respects and that absent independent confirmation,
    the trial judge should not rely on any of it. The defence submitted that Williams
    was caught in several lies and had changed substantial parts of his evidence
    when confronted with other independent reliable evidence, such as cellphone records
    showing that his initial testimony was false.

[27]

The
    defence submitted that Walker and Millar were aware of Williams testimony
    before they gave statements to the police as part of their plea bargains.
    They were anxious to have those statements conform to Williams testimony, as
    they understood his statement to reflect the position of the prosecution. The
    defence argued that the evidence of Walker and Millar could not be regarded as
    independent of Williams evidence and therefore capable of confirming Williams
    evidence.

[28]

The
    defence accepted that Chambers murder was planned and deliberate, and
    connected to the drug rip off the night before. The defence maintained,
    however, that the evidence pointed to Williams as the person most likely to
    have directed the murder. The defence relied on evidence showing that Williams
    was the seller of the drugs and therefore the person with the strongest
    financial and reputational interest in killing Chambers. The defence argued that
    Williams was the boss among the various drug dealers at Turners residence and
    in the car on March 7. He was in the lead car with Chambers and the shooter,
    Turner, who was his very good friend. Turner hardly knew the appellant.

[29]

In
    addition to pointing the finger at Williams, the defence also relied on
    evidence suggesting Millar had a motive to kill Chambers. Millar had a violent
    temper and there was evidence that part of the cocaine belonged to him. Millar drove
    the vehicle in which Chambers and Turner were seated and Millar knew his way
    around the back roads in the Barrie area.

V

[30]

The
    trial judge made a careful and exhaustive review of the evidence. He ultimately
    made several material findings of fact, including the following:

·

the appellant was the person ripped off in the drug
    transaction, even if Williams also had an interest in the transaction. It was
    the appellant who was on the hook for the money (see paras. 336, 419 and 422);

·

the appellant was very angry with Chambers during the evening of
    March 6. He assaulted and threatened Chambers in the course of the evening (see
    paras. 337 and 342);

·

a decision was made by the appellant to kill Chambers sometime
    after he and Chambers arrived at Turners residence on the evening of March 6
    (see paras. 371-78, 426 and 432);

·

the appellant was in the group of people that left Turners
    residence and headed north with Chambers. He was at the scene of the execution
    (see paras. 347, 351 and 425-26);

·

the appellant, perhaps with the help of others, orchestrated and
    directed the trip northward (see paras. 426-27); and

·

the appellant was in possession of the murder weapon on the
    evening of March 6 and gave the weapon to the shooter, Turner (see paras. 391-92
    and 425).

VI

the grounds of appeal

A:  Could the evidence of
    Walker or Millar confirm the evidence of Williams?

[31]

The
    appellant accepts that the trial judge properly instructed himself that
    Williams, Walker and Millar were
Vetrovec
 witnesses and that it was
    dangerous to rely on their evidence, absent independent confirmatory evidence
    that gave the trial judge confidence that he could rely on any material part of
    their evidence. The appellant does not quarrel with the trial judges
    description of the applicable legal principles (paras. 44-76). He does,
    however, contend that the trial judge failed to properly apply one of those
    principles to the evidence.

[32]

The
    appellant acknowledges that the evidence of one
Vetrovec
 witness can
    sometimes confirm the evidence of another
Vetrovec
 witness: see
R.
    v. Khela
, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 39;
R. v. Roks
, 2011 ONCA 526
, 274 C.C.C. (3d) 1, at
    para. 67. He submits, however, that to be confirmatory, the evidence must be
    independent of the evidence that it seeks to confirm. The appellant asserts
    that the evidence of Walker and Millar was not independent of the evidence of
    Williams and the trial judge therefore erred in using parts of their evidence
    to confirm material parts of the evidence of Williams: see
R. v. Pollock
(2004), 187 C.C.C. (3d) 213 (Ont. C.A.), at para. 161. The appellant points to
    four occasions in which he argues the trial judge improperly used the evidence
    of Walker and Millar as confirmatory. He contends that as the Crowns case depended
    largely on Williams evidence, this error necessitates the quashing of the
    conviction.

[33]

The
    argument that the evidence of Walker and Millar was not independent of the
    evidence of Williams rests on the uncontested evidence that Walker and Millar
    heard Williams testimony before they chose to enter guilty pleas to included
    offences. Both men were present at the preliminary inquiry when Williams
    testified. Further, both men testified that when they gave statements to the
    police, they appreciated that it was important for them to conform to the
    prosecutions theory, as reflected in Williams testimony.

[34]

The
    appellant maintains that the willingness of Walker and Millar to shape their
    statements to conform to Williams testimony is evident in the similarity of
    their evidence to Williams testimony and, in Millars case, in his repetition
    of parts of Williams evidence that were later shown to be false. The appellant
    argues that in the face of this evidence, the trial judge was obliged to
    conclude that the evidence of Walker and Millar was tainted and incapable of
    constituting independent evidence confirming any part of Williams testimony.

[35]

The
    appellant further submits that although the trial judge appreciated that a
    witnesss evidence could be tainted by some connection with the evidence of
    the
Vetrovec
 witness so as to negate the requisite independence, he
    failed to appreciate that the entirety of the evidence of Walker and Millar was
    tainted by their knowledge of Williams testimony and their willingness to
    offer testimony consistent with Williams evidence.

[36]

There
    can be no gainsaying the risk that the evidence of Walker and Millar was tainted
    by their knowledge of Williams testimony and their interest in testifying in
    conformity with his evidence. The trial judge was alive to the evidence that
    Walker and Millar had heard Williams testimony and saw a need to conform with
    it in their own evidence. He recognized that this evidence negatively impacted on
    the reliability of evidence given by Walker and Millar (
e.g.
see para.
    415). The appellant is correct, however, that the trial judge did not specifically
    identify the evidence of tainting as relevant to his determination of whether
    anything Walker or Millar said in their evidence could confirm the testimony of
    Williams.

[37]

The
    appellant refers to the following passage, at para. 182, to support his claim
    that the trial judge used the evidence of Walker and Millar to confirm
    Williams evidence:

Nevertheless, the cellphone evidence and later evidence from
    Walker and Gregory Millar does lend support to Tafari Williams evidence as to
    the overall course of events, the humiliation and anger of Lenworth Spence, the
    presence of the named people in the apartment that night, and on the road to
    Oro-Medonte in the morning, and the disguised pattern of phone contact by
    Spence with Millar before, leading up to, and after the shooting.

[38]

With
    respect, the appellants reliance on the extract from the judgment quoted above
    demonstrates the error in examining one passage from the trial judges reasons
    in isolation from the rest of the reasons. The reasons were lengthy, detailed
    and, in my view, carefully constructed.

[39]

The
    passage quoted above appears in the part of the reasons in which the trial
    judge examined, at length, the evidence of Williams. After reviewing the cross-examination
    and noting the many deficiencies that it disclosed in Williams testimony, the
    trial judge went on to observe that other parts of the evidence, including
    evidence from Walker and Millar, lend[s] support to Williams testimony.

[40]

The
    trial judge was not discussing confirmatory evidence in the
Vetrovec

    sense in para. 182 of his reasons. He devoted a later lengthy section of his
    reasons to that specific topic. The trial judge was indicating only that,
    despite the significant problems with the reliability of Williams evidence,
    there were parts of the evidence, including evidence from Walker and Millar, that
    lent some credence to his testimony. Paragraph 182, standing alone, does not
    advance the appellants argument. The submission requires an examination of the
    parts of the reasons which expressly address the
Vetrovec
 concerns.

[41]

The
    trial judge was alive to the very real dangers inherent in relying on the
    evidence of Williams, Walker and Millar. He addressed the existence of
    confirmatory evidence at length in his reasons (see paras. 305-356 and
    393-412). I begin with some preliminary observations about those parts of the
    reasons that do not speak directly to the appellants submissions.

[42]

The
    trial judge began this part of his reasons by reminding himself that
    confirmatory evidence had to be independent and sufficiently material or
    relevant so as to restore confidence in the witnesss otherwise questionable
    credibility (para. 305). The trial judge searched for potentially confirmatory
    evidence as it applied to each of the three
Vetrovec
 witnesses. He
    looked for confirmation of evidence relevant to the material features of the
    case advanced by the Crown. He examined these features separately, looking for
    confirmatory evidence. For example, at paras. 337-42, he considered whether
    there was confirmatory evidence of Williams testimony about the events at
    Turners residence during the evening of March 6 and the early morning of March
    7. At paras. 350-51, he considered whether there was evidence confirmatory of
    Williams evidence placing the appellant at the scene of the murder.

[43]

The
    trial judge took a granular approach in his analysis of the evidence. His
    reasons lay bare the
minutiae
of his thought process. He rejected various
    items of evidence offered by the Crown as confirmatory, either because they were
    ambivalent (
e.g.
see paras. 311 and 339), or because the evidence was
    not truly independent from the evidence of the
Vetrovec
 witness (
e.g.
see para. 338).

[44]

Ultimately,
    the trial judge determined that the evidence of Williams, as it related to each
    of the central features of the Crowns case, was confirmed by a great deal of
    independent evidence, most of it from sources other than Walker and Millar. For
    example, in finding that Williams evidence about the events at Turners
    apartment was confirmed by other evidence, the trial judge referred to four
    areas of evidence, only one of which involved the evidence of either Walker or
    Millar. In that single instance, although the trial judge referred to the
    evidence of Millar as confirmatory, he noted that there was evidence from
    another source, the defence witness Gibon, that also provided confirmation (see
    paras. 337-42).

[45]

It
    is also significant that even when the trial judge was prepared to accept
    Millars evidence as confirmatory to some extent of Williams evidence, he took
    into account the very serious problems with Millars credibility. Thus, while
    he was prepared to accept that Millars evidence was confirmatory of Williams
    evidence about the appellants animus toward Chambers during the evening of
    March 6 and the early morning of March 7, he was not prepared to accept
    Millars evidence of specific statements made by the appellant demonstrating
    that animus, as those statements were unconfirmed by any other source (see
    para. 328).

[46]

I
    come now to the appellants submission that the trial judge erred in treating
    any of the evidence of Walker and Millar as confirmatory of Williams
    testimony. There is no doubt that the trial judge did find some parts of
    Williams evidence to be confirmed by evidence given by Walker and Millar. In
    addition to the example referred to above, there were others. For example, the
    trial judge found that Williams evidence that the drugs lost in the rip off
    belonged to the appellant was confirmed by Walkers evidence of statements made
    to him by the appellant on the trip north to Barrie (see para. 331).

[47]

It
    is also clear that the evidence of Walker and Millar was potentially tainted in
    the sense that they had prior knowledge of the substance of Williams evidence
    and had reason to give evidence that was consistent with Williams testimony.

[48]

The
    presence of tainting does not automatically disqualify a witnesss evidence
    from being confirmatory of the evidence of another witness. The taint is a
    factor, albeit an important factor, to be considered by the trier of fact when
    assessing whether one witness evidence can play any role in restoring the
    trier of facts faith in the veracity of the evidence given by a
Vetrovec

    witness. That assessment is situation-specific. It is the trier of fact, as the
    arbiter of the credibility of witnesses and the reliability of evidence, who
    must ultimately decide whether the evidence of one witness restores the triers
    confidence in the reliability of the evidence of another: see
R. v. Winmill
(1999), 42 O.R. (3d) 582 (C.A.), at p. 609;
R. v. Magno
, 2015 ONCA
    111, 321 C.C.C. (3d) 554, at paras. 29-30;
R. v. Tse
, 2013 BCCA 121,
    at paras. 108-18.

[49]

The
    settled law is well put in
Magno
, at para. 30:

Therefore, collusion among
Vetrovec
witnesses does not necessarily prevent the evidence
    of one such witness from confirming the evidence of another.
It is not
    enough that the unsavoury witnesses are tainted by allegations of collusion;
    the evidence they provide and that is potentially confirmatory of each others
    evidence must be so tainted by collusion that it loses its required
    independence and cannot reasonably be used as confirmation. This is a matter
    for the jury to decide.
[Emphasis
    added.]

[50]

Tainting
    may render one part of a witness evidence insufficiently independent from the
    evidence of the
Vetrovec
 witness to provide confirmation of that
    part of the witness testimony. However, that taint may not have the same effect
    on another part of the witness evidence. Similarly, there may be other factors
    relevant to the assessment of a witness credibility and reliability that
    sufficiently counteract the tainting and lead the trier of fact to conclude
    that despite the tainting, some part of that witness evidence does confirm a
    material part of the testimony of the
Vetrovec
 witness.

[51]

For
    example, the trial judge concluded that Walkers evidence about a statement
    made to him by the appellant in the car ride north was confirmatory of Williams
    evidence that the drugs lost in the rip off belonged to the appellant. The
    trial judge observed that Walker was obviously attempting to protect the
    appellant throughout his testimony. Consequently, evidence from Walker that
    implicated the appellant had some inherent reliability. The trial judge took
    that reliability into account when considering whether Walkers evidence could
    confirm a particular aspect of Williams testimony (see para. 331).

[52]

This
    was a trial by judge alone. It was for the trial judge, as the trier of fact, to
    ultimately decide whether parts of the evidence of Walker and Millar could
    confirm parts of the evidence of Williams, despite the evidence of tainting.
    While it is true that the trial judge did not expressly address the specific
    evidence of tainting in the context of considering whether Walkers and
    Millars evidence was independent, his reasons, as a whole, reflect an
    appreciation of that risk. He referred to the evidence of tainting more than
    once. He resorted to the evidence of Walker and Millar to confirm Williams
    testimony only in respect of specific parts of Williams testimony and only
    when there was other confirmatory evidence of the same parts of Williams
    testimony.

[53]

The
    trial judges reasons reveal a full and careful analysis of the evidence of
    Williams, Walker and Millar. He was alive to the need to look for evidence that
    could confirm material aspects of their testimony. To the extent that he concluded
    that he could rely on parts of the evidence of Walker and Millar to confirm material
    parts of Williams testimony, the trial judge made no error in law. To the
    extent that he actually found confirmation in their evidence, his findings are fully
    explained in his reasons and fall within his purview as the trier of fact.

B: Did the trial judge misapprehend
    the evidence?

[54]

The
    appellant submits that the trial judge misapprehended the evidence in several
    respects and that, cumulatively, those errors satisfied the test for reversal
    based on material misapprehension of the evidence. As stated in
R. v. Lohrer
,
    [2004] 3 S.C.R. 732, at para. 2:

The misapprehension of the evidence must go to the substance
    rather than to the detail. It must be material rather than peripheral to the
    reasoning of the trial judge. Once those hurdles are surmounted, there is the
    further hurdle (the test is expressed as conjunctive rather than disjunctive)
    that the errors thus identified must play an essential part not just in the
    narrative of the judgment but in the reasoning process resulting in a
    conviction.

[55]

In
    his factum, the appellant refers to eight specific instances in which he
    contends the trial judge materially misapprehended the evidence. I do not
    propose to examine each individually. None warrant reversal.

[56]

Most
    of the alleged misapprehensions of evidence are, on closer examination,
    complaints that the trial judge preferred the Crowns submissions as to the
    proper interpretation of certain evidence over the defences submissions. For
    example, the appellant contends that the trial judge misapprehended the
    evidence about Williams delay in contacting the appellant concerning Chambers
    request to purchase cocaine. The appellant argues that evidence of this delay,
    if properly understood by the trial judge, demonstrated that it was Williams,
    and not the appellant, who was the source of the cocaine to be sold to the
    purchasers introduced by Chambers.

[57]

This
    same argument was put to the trial judge (paras. 310-11). The trial judge reviewed
    the relevant evidence and concluded that the relevant events occurred over a
    shorter period of time than urged by the defence and that this evidence was
    ambivalent as to who was to be the supplier of the cocaine. Both findings
    were available on the evidence.

[58]

A
    second example in which the appellant alleges a misapprehension of the
    evidence, but actually argues about the inferences the trial judge chose to
    draw from the evidence, relates to the trial judges finding that the gun used
    to commit the murder belonged to the appellant. The appellant argues that the
    trial judge based this finding exclusively on a telephone call between Walker and
    the appellant on March 8, the day after the shooting. Walker had testified that
    he took possession of the gun on March 7, after he and the others had returned
    from the shooting. According to Walker, he told all present, including the
    appellant and Williams, that he would hold the gun and await instructions as to
    what he should do with it. The Crown submitted that the call by the appellant on
    March 8 was in reference to the gun being held by Walker.

[59]

The
    appellant submits that the trial judge improperly inferred from the single
    telephone call that it was the appellant who was calling Walker about the gun.
    The appellant argues that there was also evidence that Williams called Walker after
    Walker agreed to hold the gun. How, the appellant asks, could the trial judge
    infer that it was the appellants call, and not Williams call, that related to
    the gun?

[60]

The
    trial judge reviewed the evidence of these phone calls (paras. 411-12). His
    finding that the appellant called Walker about the gun is supported by other
    evidence. The appellant and Walker were not friends. Williams and Walker were
    close friends. It was reasonable for the trial judge to infer that the only
    reason the appellant had to speak to Walker the day after the murder was in connection
    with the gun that Walker said he would hold, pending further instructions.

[61]

The
    inference that the appellant was calling Walker about the gun was also
    supported by conversations involving the appellant several months later. These
    conversations were intercepted pursuant to a wiretap order. Walker had been
    charged with possession of a restricted firearm and the appellant was upset. In
    one conversation, he indicated that Walker did not get rid of the gun as he was
    supposed to do (paras. 400-08). It was open to the trial judge to infer from
    the entirety of this evidence that the gun belonged to the appellant.

[62]

Two
    of the appellants submissions do reveal a misapprehension of evidence by the
    trial judge. The first arises out of the evidence concerning the instructions that
    passed between the two vehicles as they turned north toward Barrie. The trial
    judge, relying on the timing of certain cellphone calls, found that the appellant,
    in the second car, gave Millar, the driver of the first car, an instruction to
    turn north immediately before Millars vehicle turned north toward Highway 400
    (para. 426).

[63]

In
    making this finding, the trial judge relied on cellphone records providing the
    time the call was sent from the cellphone in Walkers vehicle. The trial judge,
    however, failed to consider the records pertinent to the time at which the
    cellphone in the Millar car received the call. Based on the time the call was
    received, Millars vehicle was headed north seconds before the call was received.
    I agree with the appellant that the trial judge misapprehended this evidence.

[64]

I
    do not agree, however, that the error was material in that it played an
    essential part in the trial judges reasoning process:
Lohrer
, at
    para. 2. In his reasons, the trial judge immediately after reviewing the
    evidence of the timing of that call, went on to indicate at para. 427:

Even if Mr. Spence did not direct events and Millar did, or if
    they did so together, there is no doubt that from their frequent communications
    up to and after the killing, and from the ownership and transfer of possession
    by Spence to Turner of his gun, and Spences presence at the scene of the
    shooting, ensuring that it would be done without any chance for escape, that he
    promoted and encouraged the execution of Jonathan Chambers.

[65]

As
    is apparent from the trial judges reasons, his finding that the appellant was
    directing, either alone or with others, the trip north, did not turn on his
    finding of the timing of a single specific communication between Millar and the
    appellant. There were many factors that led the trial judge to conclude that the
    appellant, alone or perhaps with Millar, orchestrated the trip north.

[66]

The
    second error made by the trial judge arises out of his finding that the
    appellant used Turner, a mentally compromised young man who was known to be
    easily manipulated by others, to cause the death of Jonathan Chambers (para.
    432).

[67]

The
    only reference to Turners mental state in the trial evidence
[4]
came in a single answer given by Williams. Williams referred to the appellant
    as taking advantage of Turner cause of his mental situation. There is no
    evidence that the appellant knew anything about Turners mental state. Williams
    testimony is not evidence that Turner was mentally compromised, much less
    that the appellant took advantage of that circumstance.

[68]

However,
    the trial judges characterization of Turners mental state had no significance
    to any essential finding of fact made by the trial judge. There was no
    suggestion that Turner acted alone in shooting Chambers. Someone, the Crown
    said the appellant and the defence said Williams, put Turner up to the
    shooting. Whether Turner agreed to shoot Chambers for money, or because he was
    easily manipulated, or for some other reason, did not matter to the trial
    judges finding that it was the appellant who solicited Turners assistance as the
    shooter in the execution of Chambers.

[69]

It
    is not surprising that, after a long trial involving lengthy and often conflicting
    evidence, the trial judge made a few factual errors in his lengthy recitation and
    analysis of the evidence. None of those errors were material to the outcome.
    Nor do the inferences he drew after his analysis of the evidence warrant the
    finding that he misapprehended any evidence in a material way.

C: The trial judges treatment
    of the evidence of the defence witness, Gibon.

[70]

The
    trial judge rejected most of Gibons evidence because of what the trial judge concluded
    was Gibons obvious determination to say what he could to help his close
    friend, the appellant. The trial judge found that some of Gibons evidence
    describing specific events at Turners residence during the evening of March 6
    and the morning of March 7 was implausible. However, the trial judge did
    accept Gibons evidence that the appellant was hot at Chambers and demanded
    that Chambers get his money back (see paras. 320-25, 391 and 429).

[71]

This
    court defers to a trial judges credibility findings. I do not understand the
    appellant to argue that it was not open to the trial judge to reject most of
    Gibons evidence for the very reason given by the trial judge. Nor, in my view,
    is it surprising that the trial judge would find parts of Gibons evidence that
    implicated the appellant more credible than the rest of his evidence. This
    assessment flows logically from the trial judges observation that Gibon was
    doing whatever he could to exculpate the appellant.

[72]

Perhaps
    the trial judge did overstate Gibons commitment to assist the appellant when
    he described Gibon as treating the appellant as a kind of lord to be obeyed
    (para. 429). That literary flourish, even if unwarranted, however, does not
    demonstrate any error by the trial judge in his assessment of Gibons evidence.

VII

conclusion

[73]

I would dismiss the appeal.

Released: DD  MAY 07
    2018

Doherty J.A.

I agree K.M. van Rensburg J.A.

I agree I.V.B. Nordheimer J.A.

[1]

The trial judges ruling that the appellants trial would
    proceed without a jury is not a ground of appeal: see
R. v. Spence
, 2011 ONSC 5587, at paras. 10-13.

[2]

The appellant was also found guilty of kidnapping, however,
    the trial judge stayed that conviction based on the principle against
    punishment for multiple convictions: see
R. v. Kienappple
, [1975] 1 S.C.R. 729.

[3]

All paragraph references in these reasons refer to the trial
    judgment.

[4]

It may be that the trial judge heard more detailed evidence
    about Turners mental state in the course of a motion brought during the trial.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stele, 2018 ONCA 478

DATE: 20180522

DOCKET: C62312

MacFarland, Watt and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Stele

Appellant

John Collins, for the appellant

Joseph Hanna, for the respondent

Heard and released orally: May 17, 2018

On appeal from the conviction entered on December 17,
    2014 and the sentence imposed on December 17, 2014 by Justice Michael Dambrot
    of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

Mr. Stele appeals his convictions of dangerous driving causing bodily
    harm and failing to stop at the scene of an accident, as well as the finding of
    guilt made against him of criminal negligence causing bodily harm, a charge
    that was stayed. These charges were laid after Mr. Stele was observed by an independent
    witness making U-turns or circles in his vehicle in an apparent attempt to
    dislodge Mr. Scherer who was hanging on the passenger side door while trying to
    force Mr. Steles passenger out of the car to resume a physical confrontation
    they were having.

[2]

Mr. Stele raises several grounds of appeal from his conviction  none of
    which we accept.

[3]

We find no error in the trial judges decision to act on testimony
    provided by Mr. Scherer about Mr. Steles manner of driving. To be sure, Mr. Scherer
    was a highly unreliable witness. The trial judge recognized this. He was
    nonetheless entitled to rely on Mr. Scherers testimony to influence his
    findings about the manner of driving. While there were points of departure
    between Mr. Scherers evidence about the driving and the testimony provided by
    the independent witness, the testimony of the independent witness did offer
    material support to Mr. Scherers testimony including the evasive manoeuvres
    Mr. Stele was taking.

[4]

We do not accept that the motives of Mr. Scherer to lie suggested by
    defence counsel demonstrate error in the trial judges comments about Mr. Scherers
    absence of motive to lie. The trial judge was entitled to reject the claim that
    Mr. Scherer would lie about the manner of driving for the reasons defence
    counsel offered. Nonetheless, given that there was no proof capable of
    supporting a finding of an absence of motive, the trial judge should not have
    made the comment he did. This however was a secondary basis for the trial
    judges decision to rely on what Mr. Scherer said about the manner of driving.
    In explaining his decision to do so the trial judge said: most importantly
    this part of his evidence is largely confirmed by the evidence of the taxi
    driver. We find no reversible error in the trial judges decision to rely in
    part on Mr. Scherers testimony.

[5]

Nor do we accept that the trial judge improperly speculated.

[6]

With respect to the speed of driving, the trial judge was entitled to
    reject the independent witness estimate of speed. On the evidence, Mr. Stele
    was attempting to shake Mr. Scherer from the vehicle and succeeded in doing so.
    This enterprise suggests a faster speed than the independent witness estimated.
    And while the trial judge did not accept Mr. Scherers exaggerated estimate of
    speed, he was entitled to rely on Mr. Scherers experience to conclude that the
    speed was higher than the independent witness estimated.

[7]

The trial judge was also entitled to infer that Mr. Stele would have
    felt his vehicle running over Mr. Scherers body. This is a common sense
    inference available to the trial judge on the evidence.

[8]

The trial judge clearly considered and rejected the defences of
    necessity and self-defence. He found the driving to be unreasonable even though
    Mr. Scherer was threatening harm to the passenger. This finding, which was open
    to the trial judge, is fatal to the defences relied upon.

[9]

Nor were the verdicts arrived at unreasonable. The trial judge was
    entitled to find that Mr. Steles act of intentionally steering and driving his
    motor vehicle in an attempt to dislodge Mr. Scherer was criminally negligent
    and dangerous to the public.

[10]

He
    also had an evidentiary basis for his conclusion that after knowingly running
    Mr. Scherer over, or being wilfully blind to that fact, Mr. Stele failed to
    stop his motor vehicle in order to evade criminal or civil liability.

[11]

We
    would not interfere with the trial judges discretionary determination of the
    length of the driving suspension. No errors of principle have been identified
    and this sentence is not manifestly unfit.

[12]

The
    appeal is therefore dismissed.

J. MacFarland J.A.

David Watt J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vorobiov, 2018 ONCA 448

DATE: 20180514

DOCKET: C56598

Laskin and Pepall JJ.A. and Gans J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Ivgeny Vorobiov

Appellant

Scott Hutchison and Apple Newton-Smith, for the
    appellant

Eric Siebenmorgan and Rachel Young, for the respondent

Heard: November 30, 2017

On appeal from the conviction entered on December 20,
    2011 by Justice Ian Nordheimer of the Superior Court of Justice, sitting with a
    jury.

Laskin J.A.:

A.

Introducton

[1]

Glen Davis was a wealthy businessman, an environmentalist, and a
    philanthropist. On May 18, 2007, he was murdered. He was shot and killed in an
    underground parking garage in Toronto. He was 66 years old.

[2]

Davis nephew, Marshall Ross, orchestrated the murder. Ross enlisted his
    friend, Dimitri Kossyrine, to find someone to kill his uncle. Kossyrine
    recruited two people who worked for him, Jesse Smith and the appellant, Ivgeny
    Vorobiov.

[3]

All four men were charged with first degree murder. Before trial, Smith
    pleaded guilty to being an accessory after the fact for helping Vorobiov flee
    the scene of the murder. Kossyrine and Vorobiov were tried together. Ross was
    to be a co-accused in that trial as well, but pleaded guilty to first degree
    murder just before it began.

[4]

The trial concluded with the jury finding Vorobiov guilty of first
    degree murder, but unable to reach a decision on Kossyrine. He was later tried
    for a second time and convicted of first degree murder; his appeal from that
    conviction to this court was dismissed: see
R. v. Kossyrine
, 2017 ONCA
    388, 138 O.R. (3d) 91.

[5]

The case against Vorobiov was compelling. It included: security video
    footage and an eyewitness placing Vorobiov at the scene of the murder;
    cellphone records; the evidence of Vorobiovs friend and former brother-in-law,
    Yuval Klein; Vorobiovs conduct after the murder; intercepted conversations among
    the various participants; Vorobiovs admissions in his evidence at trial; and
    the evidence of Smith, who named Vorobiov as the shooter.

[6]

In his defence, Vorobiov denied shooting Davis. He admitted that he had
    agreed to kill Davis for Ross, and that he had brought a gun and silencer to
    the parking garage on the day of the murder, but he claimed that when he was in
    the garage, he changed his mind. He said that Smith took the gun from him and
    shot Davis, after Vorobiov had walked away.

[7]

Of the four participants in the murder plot, only Vorobiov and Smith
    were at the parking garage on the day of the murder. After all the evidence was
    led at trial, the jury had a simple factual question to answer: who shot Davis,
    Smith or Vorobiov? The jury was satisfied beyond a reasonable doubt that
    Vorobiov did.

[8]

On his appeal, Vorobiov submits that the trial judge made three errors,
    the first in his conduct of the trial; the second and third in his charge to
    the jury:

1.

The trial judge
    unjustifiably curtailed the defences cross-examination of Smith and Detective
    Moreira, a police detective who interviewed Smith.

2.

The trial judge
    erred by giving a
Browne v. Dunn
instruction concerning Smiths
    evidence.

3.

The trial judge
    erred in his charge on Vorobiovs conduct after the murder by failing to tell
    the jury his conduct had no probative value.

[9]

I would not give effect to any of these three submissions. I would
    therefore dismiss Vorobiovs appeal.

B.

Additional Background

(a)

Ross motive for the murder and the recruitment of Smith and Vorobiov

[10]

Ross
    decision to have his uncle murdered was fuelled by greed and resentment. Ross
    ran a business renovating old homes and reselling them, but his business did
    poorly. Over the years, Davis had generously lent Ross large amounts of money,
    totalling two million dollars, none of which Ross had repaid. But Ross wanted
    more. And he resented Davis because though adopted, Davis had ended up with all
    of the familys money. So Ross decided to speed up what he mistakenly thought
    would be his inheritance by having Davis killed.
[1]

[11]

Ross
    first attempt in 2005 was unsuccessful. Davis was beaten with a baseball bat and
    left for dead, but survived. This attempt and the murder two years later went
    unsolved until November 2008, when one of the perpetrators in the earlier
    beating, while under arrest for unrelated charges, confessed to his role in the
    initial murder attempt. His confession led the police to the four suspects in
    Davis murder: Ross, Kossyrine, Smith, and Vorobiov.

[12]

Ross
    and Kossyrine initially crossed paths through their respective businesses;
    Kossyrine often worked on home-building and renovation projects for Ross; and the
    two men became friends. Smith and Vorobiov became involved in the murder plot through
    their relationship with Kossyrine; both worked for him, and were also his
    friends. After the first attempt on Davis life failed, Kossyrine recruited
    Smith and Vorobiov to carry out the murder, and Ross persuaded them to do so.

(b)

The scene and timing of the murder

[13]

Davis
    was murdered in the P-2 parking level of a building at 245 Eglinton Avenue East
    in Toronto. He was shot on his way to retrieving his car after having lunch
    with a friend at a restaurant in the building. The murder occurred at
    approximately 1:53 p.m.

[14]

The
    building at 245 Eglinton Avenue East is located on the south-east corner corner of
    Eglinton Avenue East and Mount Pleasant Road. The building sits between Mount
    Pleasant Road on the west side and Taunton Road on the east side. It has four
    entrances and exits to the underground garage: an elevator to the building; a
    stairwell to Mount Pleasant Road; a stairwell to Taunton Road; and a vehicle
    ramp to Taunton Road.

[15]

On
    the day of the murder, the Taunton Road stairwell was unlocked and, unlike the
    other exits, had no security video. Vorobiov was shown in the buildings
    security videos entering and leaving the garage about an hour before and just
    minutes after the murder. Although Smith was not captured on any of the
    garages security footage around the time of the murder, Vorobiov claimed Smith
    could have come into the garage undetected by using the Taunton Road stairwell.

(c)

The case against Vorobiov

[16]

As
    I have said, the case against Vorobiov included his own admissions at trial,
    his conduct after the murder, security video, eyewitness testimony, cellphone
    records, intercepted conversations, and the evidence of Klein and Smith. The
    following is a brief list of the key evidence against him:

·

Vorobiov initially declined Ross overtures to kill Davis but
    became interested when Ross offered him more money.

·

Vorobiov eventually agreed to kill Davis for Ross.

·

On the day of the murder, Smith and Vorobiov drove to 245
    Eglinton Avenue East; Vorobiov brought with him a gun and silencer in his
    backpack.

·

Vorobiov intended to kill Davis in the parking garage when Davis
    came to get his car after lunch; according to Vorobiovs testimony, Smith was
    to wait in Vorobiovs car and drive Vorobiov away after the murder.

·

After Smith parked the car on Taunton Road, Vorobiov left the
    car, and with the gun and silencer in his backpack, went down the Taunton Road
    vehicle ramp. He went to the P-2 level where Davis car was parked, and waited
    for him near the pedestrian stairwell on Mount Pleasant Road, which was the
    stairwell closest to the restaurant. Security video captured Vorobiov standing
    by the elevators on the P-2 level at 1:20 p.m.

·

Security video showed Vorobiov alone, and carrying a backpack,
    going down the Taunton Road vehicle ramp at 12:52 p.m. Davis was shot at 1:53
    p.m.; security video captured Vorobiov, with his backpack, walking up the Taunton
    Road vehicle ramp alone at 1:55 p.m.

·

Vorobiov admitted that he was the person captured on the security
    video.

·

Smith was not captured by security video during this entire
    timeframe.

·

The building superintendent heard two loud bangs shortly after
    Davis entered the parking garage; he went to investigate and saw Vorobiov
    walking through the P-1 level and up the vehicle ramp soon after the gunshots;
    he did not see Smith or anyone else on the P-1 level.

·

Vorobiov had a cellphone with him but did not make or receive any
    calls during the entire time he was in the underground garage; in contrast,
    Smith made and received numerous calls on his cellphone during that time,
    including many to Ross.

·

Smith testified that when Vorobiov returned to the car after
    Davis was shot, he said to Smith: I killed him.

·

Immediately after Davis was killed, Smith drove Vorobiov away
    from the scene of the murder, and then drove to Port Perry; along the way they
    disposed of the gun, silencer, and backpack.

·

Vorobiovs close friend and former brother-in-law Yuval Klein
    testified at trial that Vorobiov said that he went in and it was done.

·

Vorobiov and Kossyrine misled the police and tried to hinder
    their investigation.

(d)

Vorobiovs defence

[17]

Vorobiovs
    defence was that, at the last minute, he decided he couldnt go through with
    killing Davis, that Smith took the gun from him, and that as he was walking
    back up the vehicle ramp, Smith fired the fatal shots.

[18]

Vorobiov
    testified that he first went to underground garage to look for Davis car,
    which he found on the lower level. He then returned to the car he and Smith
    were driving, took his backpack, and re-entered the garage by going down the
    Taunton Road ramp.

[19]

About
    a half hour later, Smith came into the garage and asked Vorobiov what was
    taking so long. Vorobiov said Davis had not yet appeared and he was glad
    because he was ready to walk away. Smith then went to find Davis. Vorobiov
    was about to leave by the elevator but saw a security camera so he stayed in
    the garage to wait for Smith. When Smith reappeared and said Davis would be
    down any minute, Vorobiov said sorry I am not fucking doing it Jesse. Smith
    then reached into Vorobiovs backpack, took out the gun and silencer and said
    just take the gun and put this on and get it over with. Vorobiov replied you
    dont understand. I am not fucking doing it. I know there is a camera. The
    camera has already seen me.

[20]

Vorobiov
    tried to reach over and take back the gun but Smith pulled back, and Vorobiov
    was only able to grab the silencer. He then walked away and up the ramp. When
    he was almost at the top, he heard two loud bangs. He went back to see what was
    going on. He found Davis dead and saw Smith going through Davis pockets. He
    told Smith to get the fuck out of here, and walked back up the ramp to their
    car. Soon Smith appeared from the Taunton Road stairwell and they drove off.
    Smith was driving.

C.

the issues

(1)

Did the trial judge unjustifiably curtail defences cross-examination of
    Smith and Detective Moreira?

[21]

The
    day after the murder, Smith flew to Cuba, where his wife and daughter lived. In
    early April 2009, about a month after Ross, Kossyrine, and Vorobiov had been
    arrested, Smith flew back to Canada with his family. He was arrested at the
    airport, charged with first degree murder, and interviewed by the police that
    evening. Later Smith retained a lawyer and, in May 2010, he gave a second
    interview to the police. Both interviews were conducted by Detective Moreira.

[22]

At
    the trial, the Crown first called Moreira, then Smith. Both were cross-examined
    by defence counsel for Kossyrine and defence counsel for Vorobiov (not Mr.
    Hutchison or Ms. Newton-Smith). The underlying objective of counsel for
    Vorobiovs cross-examination was to show that the police pushed Smith into
    giving a limited confession in which he minimized his own involvement in the
    murder plot and fingered Vorobiov as the shooter. Vorobiovs counsel sought to
    achieve this objective in two ways: by cross-examining Moreira to show how he used
    a specific interview technique to extract the narrative that Smith ultimately
    testified to at trial; and by cross-examining Smith to show how his narrative
    had changed from his first interview to his eventual trial testimony.

[23]

Vorobiov
    submits that the trial judge unjustifiably and unfairly curtailed both
    cross-examinations and, by doing so, undermined Vorobiovs defence and the
    fairness of his trial. Although I have concerns about the trial judges
    interventions, on a review of the entire transcript of each cross-examination,
    I am persuaded that Vorobiovs defence counsel achieved his objective, and that
    the trial judges interventions did not undermine Vorobiovs defence or deprive
    him of a fair trial.

[24]

As
    Major and Fish JJ. said in
R. v. Lyttle
, 2004 SCC 5, [2004] 1 S.C.R.
    193, at para. 41:

[T]he right of an accused to cross-examine prosecution
    witnesses without significant and unwarranted constraint is an essential
    component of the right to make full answer and defence.

[25]

This
    right is thus essential to a fair trial  so it must be jealously protected
    and broadly construed:
Lyttle
, at para. 44.

[26]

In
    their management of a trial, trial judges do have discretion to intervene if defence
    counsel abuse the right of cross-examination. That discretion is part of a
    trial judges general discretion to manage a trial. Indeed, in
R. v. Jordan,
2016 SCC 27, at para. 139, the majority wrote: Trial judges should make
    reasonable efforts to control and manage the conduct of trials. Even so, trial
    judges should give defence counsel wide latitude in the way they conduct their
    cross-examinations. Simply because the trial judge disagrees with defence
    counsels approach or line of questioning does not justify judicial
    intervention unless the approach or questioning is improper.

[27]

Context
    also matters. As in this case, where defence counsel is cross-examining a key
    Crown witness, where the credibility of that witness is pitted against the
    credibility of the accused, and where the stakes are high, as they are in a
    first degree murder trial, trial judges should intervene only in extreme cases.

[28]

Against
    this background, I turn to an outline of Smiths evolving narrative, the
    cross-examinations of Moreira and Smith, and Vorobiovs complaints about the
    trial judges interventions.

(a)

Smiths evolving narrative

[29]

Smith
    undoubtedly changed his story between his first police interview in which he
    admitted he lied, and his second police interview and trial testimony, in which
    he claimed to be telling the truth.

[30]

In
    his first police interview in April 2009, Smith admitted that he knew what was
    going on, but did not know what to do about it. He told Moreira that on the
    drive to Port Perry, Vorobiov was calm, quiet and didnt say anything. When
    asked whether Vorobiov had changed his clothes, Smith replied: I dont
    remember.

[31]

In
    May 2010, after spending a year in custody, Smith gave a second interview to
    the police, which was arranged by his lawyer. Smith decided to improve my
    chances of not spending the rest of my life in jail and correct the lies in
    the first statement. In his second interview and trial testimony, Smith
    admitted he drove Vorobiov to the murder scene but now disclaimed any knowledge
    of what occurred. He said he just waited in the car, while Vorobiov went to a
    meeting, without any idea of what Vorobiov intended to do. Smith was now
    adamant that only after they had driven away, did Vorobiov tell him he had killed
    Davis. And Smith insisted Vorobiov had changed his clothes on the drive to Port
    Perry.

[32]

Smiths
    evolving narrative in which he minimized his own involvement in the murder plot
    was the focus of the defence counsels cross-examination.

(b)

The cross-examination of Moreira

[33]

Vorobiovs
    defence counsel began cross-examining Moreira on his interview technique. He
    was trying to show that Moreira pressured Smith into minimizing his involvement
    in the murder and giving himself an out. Crown counsel did not object to this
    line of questioning. But the trial judge did. Toward the end of the first day
    of cross-examination, the trial judge excused the jury and then questioned the
    relevance of defence counsels questioning. He noted that Smith was not on
    trial, and that defence counsels questions were better put to Smith.

[34]

After
    a dialogue with counsel, however, the trial judge said he would give defence
    counsel a little bit more leeway in the morning. The next morning the trial
    judge repeated that he would give defence counsel further leeway, though not a
    great deal more. Defence counsel then completed his cross-examination without
    interruption.

[35]

I
    am inclined to agree with Vorobiov that the trial judge should not have
    intervened. Smith was not on trial, but Vorobiovs defence was that Smith shot
    Davis. Defence counsels cross-examination of Moreira was not abusive or excessive.
    And I know of no rule of evidence that precluded it. Trying to show how the
    police got Smith to change his story was fair game.

[36]

Nonetheless,
    the trial judges intervention  though ill-advised  did not undermine
    Vorobiovs defence. His counsel obtained from Moreira all the admissions he
    needed to make his case to the jury that the police ultimately broke Smith.
    In particular, Moreira agreed to the following important points:

·

Moreira began the interview by telling Smith he thought he did
    it, and then by asking Smith to explain his role.

·

At times during the interview, Moreira exaggerated the evidence,
    an interview technique he used frequently.

·

Moreira laid out the roles of the others, based on the polices
    investigation.

·

The theme of the interview, according to Moreira, was that the
    police knew much more about the answers to their questions than Smith thought
    they did.

·

Moreira agreed he was giving Smith an opportunity to avoid
    spending approximately 32 years in jail before obtaining release on parole, and
    therefore an opportunity to avoid being separated from his daughter for a long
    period of time.

·

Moreira told Smith that he knew he had not been forthcoming in
    his initial interview, and that this was his opportunity to prove he had a
    minimal role in the murder.

[37]

Before
    this court, Vorobiov fairly agrees that he cannot succeed on this ground of
    appeal solely on the basis of anything the trial judge did to limit the
    cross-examination of Moreira. I therefore turn to the cross-examination of
    Smith.

(c)

The cross-examination of Smith

[38]

During
    defence counsels cross-examination of Smith, he put to the witness verbatim
    many questions and answers from his police interview. He did so for about seven
    pages of transcript. Again Crown counsel did not object to this way of
    cross-examining. But again the trial judge did. In the jurys absence, the
    trial judge told defence counsel he considered this line of cross-examination
    improper. In the trial judges view, defence counsel had to establish an
    inconsistency and put it directly to Smith; he could not put Smiths previous
    police statements to him.

[39]

I
    do not think the trial judge should have intervened. Crown counsel, who was
    very experienced, saw nothing wrong with the cross-examination. And in a first
    degree murder trial, defence counsel should have been given a wide berth when
    cross-examining the main Crown witness against his client.

[40]

But
    again, I am not persuaded that the trial judges intervention undermined or
    prejudiced the defence. After the trial judge intervened, defence counsel
    continued his cross-examination of Smith without interruption, and obtained the
    following critical evidence, which laid the foundation for his closing address
    to the jury in which he argued that the police eventually did break Smith:

·

Smith agreed that the police started to break him after the
    first hour of their preamble.

·

Smith admitted that what he said to the police in his first
    interview was contrary to his plea of being merely an accessory after the fact.

·

In his first interview Smith admitted he had lied and implicated
    himself falsely because the police pressured him.

·

Moreira held out a life rope to Smith by giving him an
    opportunity to explain his minimal role in the murder, but Smith lied to the
    police anyway.

·

At the time of the second statement Smith knew he was charged
    with first degree murder and he realized he had to help himself.

(d)

Conclusion on this ground of appeal

[41]

Despite
    the trial judges interventions, defence counsel was not ultimately prevented from
    achieving his objective and obtaining from Moreira and Smith the admissions he
    needed to advance Vorobiovs defence before the jury. Thus, I conclude that the
    trial judges interventions did not undermine Vorobiovs defence or deprive him
    of a fair trial. I would not give effect to this ground of appeal.

(2)

Did the trial judge err by giving a
Browne v. Dunn
instruction
    concerning Smiths evidence?

[42]

The
    rule in
Browne v. Dunn
(1893), 6 R. 67 (H.L.) dates back to the case
    by that name decided by the English House of Lords in 1893. The rule is rooted
    in fairness, principally to a witness whose credibility is challenged on
    cross-examination and to the party who called the witness. Lord Chancellor
    Hershell explained the rule at p. 70 of
Browne v. Dunn

as
    follows:

[I]t seems to me to be
absolutely essential to the proper
    conduct of a cause, where it is intended to suggest that a witness is not
    speaking the truth on a particular point, to direct his attention to the fact
    by some questions put in cross-examination showing that that imputation is
    intended to be made
, and not to take his evidence and pass it by as a
    matter altogether unchallenged, and then, when it is impossible for him to
    explain  the circumstances which it is suggested indicate that the story he
    tells ought not to be believed, to argue that he is a witness unworthy of
    credit.  [I]f you intend to impeach a witness you are bound, whilst he is in
    the box, to give him opportunity of making any explanation which is open to
    him:
that is not only a rule of professional practice in the conduct of a
    case, but is essential to fair play and fair dealing with witnesses
.
    [Emphasis added.]

In short, if counsel intends to impeach an opposing
    witness on a matter, then, in fairness, counsel ought to put the contradictory
    version to the witness on cross-examination so that the witness has an
    opportunity to explain.

[43]

Over
    the years, courts have clarified the rules scope and application. Four
    clarifications are relevant to this ground of appeal:

·

A witness need not be confronted with every scrap of
    contradictory evidence, but should be confronted on contradictory matters of
    substance the witness has not had an opportunity to explain.

·

However, even on matters of substance, the witness need not be
    confronted with contradictory evidence if the witness view on that
    contradictory evidence is already apparent.

·

If the rule is breached, then depending on the circumstances and
    context, the trial judge has a range of options to rectify the breach.

·

A trial judges determination whether the rule was breached, and
    if so the appropriate remedy, are entitled to substantial deference from an
    appellate court: see
R. v. Zvolensky
,
2017 ONCA 273, 135 O.R. (3d) 401, at paras. 134-136.

[44]

In
    the present case, Smith and Vorobiov gave contradictory evidence on an
    important matter: who bought the gun that was used to murder Davis. Smith, who
    was called by the Crown, testified that Vorobiov told him Ross had given Vorobiov
    $5,000 to buy a gun and Vorobiov had gone to Montreal and purchased one.
    Vorobiov, however, testified that Smith had bought the gun and silencer from
    someone he knew when he dealt drugs. When Smith was cross-examined, Vorobiovs
    counsel did not put to him Vorobiovs claim that Smith was a former drug dealer
    who had used his contacts to buy the murder weapon.

[45]

The
    trial judge concluded that defence counsels failure to put Vorobiovs claim to
    Smith when he cross-examined Smith amounted to a breach of the rule in
Browne
    v. Dunn
. The trial judge therefore instructed the jury that in considering
    Smiths evidence, it could take into account instances where Smith did not have
    the opportunity to give his version of events:

[I]n considering the different versions of the events as told
    to you by Ivgeny Vorobiov and Jesse Smith,
some of the things that Mr.
    Vorobiov said that Mr. Smith did were not put to Mr. Smith when he gave
    evidence
. As a result, Mr. Smith did not have the opportunity to tell you
    his response to those events or provide any information or explanation to you
    that might assist you in terms of deciding whether those events occurred. For
    example, it was not put to Jesse Smith that he had once been a drug dealer, and
    that from that past activity he knew someone who lived off Kennedy Road from
    whom Mr. Vorobiov says that Mr. Smith purchased the gun and the silencer. ...

When considering the evidence of Jesse Smith where it conflicts
    with the evidence of Ivgeny Vorobiov,
you should take into account any
    instance where Mr. Smith did not have the opportunity to give his version of
    the events in response to the version of the events related to you by Mr.
    Vorobiov.

This is a principle of general fairness. It applies to all
    witnesses.
You should take into account any instance in which a witness did
    not have the opportunity to give his or her version of events in response to
    what counsel may now be suggesting to you is what occurred. [Emphasis added.]

[46]

Vorobiov
    submits that the trial judges instruction was unfair and undermined the
    defence because it suggested Smith had been dealt with unfairly and those parts
    of Vorobiovs evidence not put to Smith should be disregarded. In support of
    this submission, Vorobiov makes three points: the Crown never claimed that
    Vorobiovs counsel had breached the rule; the charge was unnecessary because
    the matters put to Smith were not central in the case; and if the rule had been
    breached, the appropriate remedy would have been to address it in the evidence,
    for example by recalling Smith, and not in the trial judges charge.

[47]

I
    do not agree with Vorobiovs submissions. Admittedly the Crown did not claim
    Vorobiovs counsel had breached the rule, but he did express his concern that
    there are significant aspects of Mr. Vorobiovs testimony  that I have not
    heard before. And he asked the trial judge to include the instruction that was
    given in the trial judges charge.

[48]

Moreover,
    the trial judges determination whether the rule had been breached was his
    decision to make; he was not bound by the Crowns position. And in my view, his
    determination the rule had been breached was reasonable. Which of the two
    protagonists, Smith or Vorobiov, had bought the gun, was not a minor manner. It
    was of central importance. It informed the chief issue at trial, the identity
    of Davis shooter and helped explain Vorobiovs and Smiths respective roles in
    the murder plot. And it was not a matter on which Smiths position was so
    apparent that giving him an opportunity to explain was unnecessary.

[49]

It
    is true Smith had testified that it was Vorobiov who had purchased the gun and
    silencer. But he should have had an opportunity to respond to Vorobiovs claim
    that he was a former drug dealer, with connections who could provide him with
    access to firearms  particularly as Smith claimed to have played only a
    minimal, accidental role in the murder.

[50]

The
    trial judges choice of remedy  to address the breach in his charge  is
    entitled to deference and I see no basis for appellate interference:
R. v.
    Quansah
, 2015 ONCA 237, 125 O.R. (3d) 81, at para. 118. One possible way
    to address a breach of the rule in
Browne v. Dunn
is to recall a
    witness, but it is not the only way. Also, failing to recall a witness does not
    necessarily bar including a
Browne v. Dunn
instruction in a jury
    charge:
Quanash
, at para. 120; and
R. v. Giroux
(2006), 210
    O.A.C. 50 (C.A.), at para. 48.

[51]

Here,
    Smith could have been recalled, but neither side asked for this remedy. The
    charge itself was worded in neutral terms. The trial judge did not highlight
    that the rule had been breached; he did not tell the jury it could disregard or
    disbelieve those parts of Vorobiovs evidence not put to Smith; and he did not
    suggest to the jury that Smiths account of who bought the gun should be believed.

[52]

To
    the contrary, the challenged instruction came immediately after the trial
    judges
Vetrovec
warning
[2]
in which he cautioned the jury about relying on Smiths evidence without
    independent confirmation of it, in part because Smith had already lied to the
    police, and had already admitted his involvement in the plot that led to the
    murder.

[53]

I
    would not give effect to this ground of appeal.

(3)

Did the trial judge err in his charge on Vorobiovs conduct after the
    murder by failing to tell the jury his conduct had no probative value?

[54]

An
    accuseds conduct after the offence in question  now labeled post-offence
    conduct  is circumstantial evidence that may help the trier of fact determine
    the accuseds culpability for the crime. In a jury trial, the trial judge is
    entitled to instruct the jury it may take into account the accuseds post-offence
    conduct in deciding on the accuseds guilt if, based on human experience and
    logic, the conduct shows that the accused acted in a manner consistent with the
    conduct of a guilty person and inconsistent with the conduct of an innocent
    person. If, on the other hand, the accuseds post-offence conduct has no
    relevance to the accuseds culpability, the trial judge should instruct the
    jury that the accuseds conduct has no probative value and that the jury should
    not consider it in deciding on the accuseds guilt for the offence charged: see
R. v. White
, [1998] 2 S.C.R. 72;
R. v. White
, 2011 SCC 13,
    [2011] 1 S.C.R. 433; and
R. v. Angelis
, 2013 ONCA 70, 296 C.C.C. (3d)
    143.

[55]

Courts
    have long recognized that post-offence conduct may be ambiguous and may be
    misused by a jury. Thus, when a trial judge instructs a jury that it may take
    into account the accuseds post-offence conduct, the trial judge should also
    instruct the jury that the accused may have an entirely innocent alternative
    explanation for that conduct, and that the jury should reject any alternative
    explanation before using the post-offence conduct to make inferences about the
    accuseds culpability.

[56]

In
    this case, the trial judge instructed the jury that in deciding whether
    Vorobiov shot Davis it could take into account two categories of Vorobiovs
    post-offence conduct: Vorobiovs and Smiths trip to Port Perry after the murder;
    and communications between Vorobiov, Kossyrine, Ross, and Smith that the police
    intercepted in the years following the murder.

[57]

In
    the first category, the trial judge told the jury about the following post-offence
    conduct: Smith and Vorobiov left the scene of the murder and drove out of the
    city to Port Perry; along the way they disposed of the gun, silencer, and
    backpack; Smith changed his clothes and, according to him, so did Vorobiov
    (which Vorobiov denied doing); and Vorobiov told Klein he had disposed of
    everything. In the second category, the trial judge told the jury that in the
    intercepted calls, the participants discussed, among other things, the police
    investigation, who might be recognized on the security videos, the creation of
    a false list of suspects to mislead the police, and the payment of money to
    Smith and Vorobiov to leave or stay out of Canada.

[58]

The
    trial judge then instructed the jury on the use it could make of Vorobiovs
    post-offence conduct:

If you find that Mr. Vorobiov actually did what he is alleged
    to have done after the offence was committed, you must be careful not to
    immediately conclude that he did so because he was conscious of having
    committed the offence charged.

To decide the reason for what Mr. Vorobiov did afterwards, you
    should consider all of the evidence. Of particular importance is evidence that
    offers any other explanation for this conduct.

You must not use this evidence about what Mr. Vorobiov did
    afterwards in deciding or helping you decide that Mr. Vorobiov committed this
    offence unless you reject any other explanation for it.

If you do not or cannot find that Mr. Vorobiov did those things
    because he was conscious of having done what is alleged against him, you must
    not use this evidence in deciding or in helping you to decide that Mr. Vorobiov
    committed the offence charged. On the other hand, if you find that what Mr.
    Vorobiov did afterwards was because he was conscious of having done what is
    alleged against him, you may consider this evidence, together with all of the
    other evidence, in reaching your verdict.

[59]

Defense
    counsel at trial did not object to this instruction or ask for a no probative
    value instruction. On appeal, however, Vorobiov contends that the trial
    judges instruction was wrong for two reasons.

[60]

Vorobiovs
    main submission is that his post-offence conduct was not probative of the only
    live issue before the jury: who shot Davis, Vorobiov or Smith? It was not
    probative because Smith engaged in the very same post-offense conduct. Therefore,
    neither Vorobiovs nor Smiths conduct after the murder, especially their trip
    to Port Perry, could help the jury determine who the shooter was. At most,
    Vorobiovs post-offence conduct could show his involvement in the murder plot.
    But he had already admitted his involvement. He was therefore entitled to an
    instruction to the jury that his post-offence conduct was not relevant to or
    probative of the question whether he shot Davis, and should not be considered.
    The trial judge erred in law in failing to give this instruction.

[61]

Vorobiovs
    secondary submission is that, although the trial judge correctly told the jury
    it could not use Vorobiovs post-offence conduct in deciding whether Vorobiov
    shot Davis unless it rejected any other explanation, the trial judge erred
    because he did not instruct the jury on any alternative explanation.

[62]

I
    do not agree with either of Vorobiovs submissions. On his first submission,
    the probative value of post-offence conduct is case specific. Its relevance or
    irrelevance depends on the nature of the evidence, the live issues at trial,
    and the positions of the parties. In this context, if the accuseds
    post-offence conduct is relevant to the accuseds culpability for the offence
    charged, the jury may take it into account in determining the accuseds guilt.
    A no probative value instruction is justified only if the accuseds
    post-offence conduct is equally explained by or equally consistent with either
    the offence charged or some other culpable act  usually another culpable act
    admitted by the accused.

[63]

In
    this case, the only live issue for the jury to decide was the identity of the
    shooter. Vorobiovs position at trial was that he intended to murder Davis, but
    had a last minute change of heart. In other words, he admitted his involvement
    in the murder plot and his initial agreement to kill Davis, but denied he was
    the shooter. He claimed, instead, that Smith shot Davis and that he was angry
    at Smith for doing so.

[64]

Do
    logic and human experience suggest that Vorobiov would have been equally likely
    to flee the scene of the murder and drive with Smith to Port Perry if either he
    shot Davis or if he had a last minute change of heart and was angry at Smith
    for shooting Davis? If the answer to this question is yes, then the trial
    judge erred by failing to give the jury a no probative value instruction on
    Vorobiovs post-offence conduct.

[65]

In my view, however, the answer to this question no. If indeed
    Vorobiov had a change of heart and was angry at Smith for shooting Davis, then
    logic and human experience suggest Vorobiov might well have wanted to get as
    far away from Smith as possible. Instead he did the opposite. He remained at
    the scene of the murder; he allowed his own car to be used as the getaway car;
    he travelled with Smith to Port Perry; along the way he and Smith disposed of
    the gun, silencer and backpack; and then he and Smith spent Davis cash at the
    casino in Port Perry. The jury could legitimately infer that Vorobiovs
    post-offence conduct was far more consistent with the conduct of a person who
    had shot Davis, than with the conduct of a person, who though planning to kill
    Davis, had changed his mind and refused to go ahead, and yet knew that his
    accomplice had done the shooting and was angry at him for doing so.

[66]

The jury could have alternatively inferred that Smiths flight to Port Perry
    with Vorobiov undermined Smiths claim that he did not know in advance Vorobiov
    intended to kill Davis that day, and that he only helped Vorobiov to get away
    from the scene of the murder. The jury could have inferred from Smiths flight
    that Smith was not merely driving the car, but was also the shooter. However,
    what inferences should be drawn from Smiths and Vorobiovs flight to Port Perry,
    and the disposal of the gun, silencer, and backpack along the way, were for the
    jury to decide. The trial judge did not err by not giving a no probative value
    instruction on Vorobiovs post-offence conduct.

[67]

On Vorobiovs secondary submission, Vorobiov is correct that the trial
    judge did not provide an alternative explanation for his post-offence conduct.
    The trial judge did not do so because Vorobiov offered no real alternative
    innocent explanation for his conduct. For example, he did not claim accident or
    self-defence. He did not offer any explanation for changing his clothes because
    he denied changing them. Nor did he explain why, despite his anger at Smith, he
    went back into the car with him, spent the rest of the day with him, and helped
    him dispose of the gun and silencer and other evidence that, on Vorobiovs
    version of events, would have tied Smith to the murder.

[68]

Vorobiov did claim at trial that in his post-offence discussions he
    conspired with Kossyrine to lie to the police so that the police would not ask
    him any questions and would not identify him on the surveillance videos from
    the garage. I suppose the trial judge could have reviewed that explanation with
    the jury, though it could hardly have helped Vorobiov.

[69]

Even if I am wrong in holding that the trial judge erred by failing to
    instruct the jury that Vorobiovs post-offence conduct had no probative value,
    I would apply the so-called curative proviso in s. 686(1)(b)(iii) of the
Criminal
    Code
. That section states that even where a trial judge errs in law, an
    appellate court may dismiss the appeal if the error did not cause a substantial
    wrong or miscarriage of justice.

[70]

One kind of error that invites the application of the proviso is an
    error that is minor because the error relates to a minor aspect of the case,
    and thus could not have prejudiced the accused or affected the verdict: See
R.
    v. Van
, 2009 SCC 22, [2009] 1 S.C.R. 716.

[71]

If the trial judge erred in his instruction on post-offence conduct, the
    error was minor. The case against Vorobiov turned almost entirely on the security
    videos, which captured him in the parking garage an hour before and minutes after
    the shooting, the independent eye witness testimony of the building
    superintendent, and the absence of any confirmatory evidence Smith was in the
    parking garage when Davis was shot. The trial judges instruction on post-offence
    conduct, even if in error, caused no substantial wrong or miscarriage of
    justice.

[72]

I would not give effect to this ground of appeal.

D.

Conclusion

[73]

I would dismiss Vorobiovs appeal. The trial judges interventions in
    defence counsels cross-examinations of Smith and Moreira did not undermine
    Vorobiovs defence or deprive him a fair trial. Nor did the trial judge err in
    his
Browne v. Dunn
instruction to the jury or his charge on
    post-offence conduct.

Released: S.E.P. May 14, 2018

John Laskin J.A.

I Agree. S.E. Pepall J.A.

I Agree. Arthur M. Gans J.

[1]
Ros
s
    believed he would be named a beneficiary in Davis will, but, as it turned out,
    he was not.

[2]
A warning about the risks of relying on the
    unconfirmed evidence of unsavoury witnesses  derived from the Supreme
    Courts decision in
R. v. Vetrovec
, [1982] 1 S.C.R. 811.