Catriona Verner, for the appellant, Bucik Richard Litkowski and Emily Morton, for the appellant, Harrington David Finley, for the respondent Heard:  June 6 and 7, 2011 On appeal from the convictions on a charge of second degree murder returned by a jury, presided over by Justice G. Taylor of the Superior Court of Justice, on November 7, 2008 in Hamilton, Ontario. Doherty J.A.:

I

[1]              The appellants appeal from their convictions on a charge of second degree murder.  Each raises several grounds of appeal.  I am satisfied that there were errors in the trial judge’s charge to the jury and that this is not a case for the application of the curative proviso.  The appeals must be allowed, the convictions quashed, and a new trial ordered. I will focus on the successful grounds of appeal.

II

[2]              This was by any measure a senseless killing.  Terry Auld and his girlfriend, Angela Beninger, were on a prolonged cocaine binge when at about 6:00 a.m., Mr. Auld knocked on the door of the house rented by one of the appellants, Mr. Bucik.  Bucik, his roommate and Mr. Harrington, the other appellant, were present in the residence.  Mr. Auld asked he if could use the telephone.  He was told to go away and he left. 

[3]              A short distance away and a short time later, Mr. Auld was accosted on the street by two men.  One hit Mr. Auld several times with a small sledge hammer and the other punched and kicked him.  Mr. Auld died as a result of a hard blow to the chest with a hammer like object.  The large amount of cocaine in his system also contributed to his death. 

[4]              The Crown’s case rested primarily on four evidentiary pillars. The Crown led evidence from three witnesses who saw all or part of the fatal beating. All three witnesses described two persons assaulting Mr. Auld. Their descriptions of the assault were however, different. One witness, the closest to the scene, saw one assailant wielding a hammer and the second person kicking and punching Mr. Auld. The second witness who saw only the end of the assault, saw one man using a hammer and a second man standing nearby. According to this witness, that second man seemed upset and did not appear to want any further involvement in the ongoing assault. A third witness, the furthest from the altercation, saw two assailants and described both as kicking and punching the victim.

[5]              The Crown also relied on the contents of a “K.G.B.” statement made to the police shortly after the homicide by Ursula Prince, Bucik’s landlady. In that statement, she told the police that Bucik had given her a detailed account of the events surrounding Mr. Auld’s homicide. According to Prince’s statement, Bucik told her that he and Harrington had gone looking for Mr. Auld. They found him and assaulted him. Bucik maintained that he only kicked and punched Mr. Auld and did not hit Auld with the hammer. He identified Harrington as the co-perpetrator of the assault. Prince also testified at trial. There were significant differences between her trial testimony and her “K.G.B.” statement. The trial judge repeatedly told the jury that the evidence of what Prince said Bucik told her was not evidence against Harrington.

[6]              Thirdly, the Crown relied on the evidence of Ian Matthews, a police officer.  Mr. Matthews was a friend of the Harrington family.  He testified that about five or six days after the homicide, Harrington’s father spoke to him and told him that his son was anxious to speak with Matthews as he was in some difficulty.  Harrington had spoken to Matthews on prior occasions when he was in trouble with the law.  Matthews spoke to Harrington the next day.  According to Matthews, Harrington began the conversation by indicating that he was at the scene of Mr. Auld’s homicide.  Matthews was aware of the homicide, although he was not involved in the investigation.  Detective Matthews made a comment to Harrington referring to the use of the hammer in the homicide.  Harrington replied that although he was present, he was not the person who hit the victim with the hammer.  Matthews arranged for Harrington’s surrender the next day. 

[7]              The trial judge ruled that Harrington’s statements to Matthews were voluntary. That ruling was challenged on appeal.  There is no merit to that challenge.  The trial judge also instructed the jury that Harrington’s statements to Matthews were not admissible against Bucik.

[8]              Lastly, the Crown relied on certain after-the-fact conduct by both appellants. The trial judge told the jury that this category of evidence could not assist them in determining the appellants’ level of involvement in the homicide.

[9]              It was the Crown’s position that after Mr. Auld left Bucik’s residence, Bucik and Harrington decided that he had come to the house intending to rob them. They became angry and decided to get in their car, find Mr. Auld and teach him a lesson. They found him nearby and “roughed him up”.  Shortly afterward, they again encountered Auld and his girlfriend on the street.  After assaulting the girlfriend, they turned their attention to Mr. Auld. 

[10]         The Crown argued that Harrington, wielding a small sledgehammer, struck Mr. Auld several times, including inflicting the fatal blow to his chest.  The Crown further argued that Bucik participated in the assault and had kicked and punched Mr. Auld as he lay on the ground.  On the Crown’s theory, Bucik was liable for second degree murder either as a co-perpetrator with Harrington or as an aider and abetter to Harrington.

[11]         Neither appellant testified or called a defence. 

[12]         In closing submissions on behalf of Bucik, counsel conceded that Bucik had assaulted Mr. Auld.  Counsel argued, however, that the Crown had failed to prove that Bucik had the intention necessary for murder and that at most his client was guilty of manslaughter.  This concession was well made on the evidence. There was strong evidence that the car rented by Bucik was the car used by the persons who attacked Mr. Auld on the street. Counsel’s concession was also consistent with what the Crown alleged Bucik told Prince according to her “K.G.B.” statement.

[13]         Counsel for Harrington took the position in closing argument that Harrington was also at the scene of the assault, but did not engage in the assault in any way.  According to counsel, Harrington had remained in the car. This concession was based on Harrington’s statement to Detective Matthews in which he acknowledged his presence at the scene but denied using the hammer to assault Mr. Auld. 

[14]         The positions taken by the parties at trial made the number of persons in the car from which Mr. Auld’s assailants emerged, a crucial factual issue. If there were only two persons in that car, the arithmetic made the Crown’s case, at least as it related to the appellants’ involvement in the homicide, a compelling one. If, however, the jury was satisfied there were more than two people in the car, or could not decide how many persons were in the car, the appellants, particularly Harrington, were in a much better position.

[15]         Mr. Auld’s girlfriend testified that when the vehicle first approached her and Mr. Auld, there were four people inside.  Two got out and “roughed up” Mr. Auld.  On the second occasion when the vehicle approached, two men exited the vehicle and assaulted her and then chased Mr. Auld.  She was not asked about the number of occupants in the vehicle at that time. 

[16]         One of the witnesses who witnessed the fatal assault from a considerable distance testified that he saw two passengers leave the vehicle and assault Mr. Auld.  On his evidence, there were at least three people in the car (a driver plus the two exiting passengers).  The witness who was closest to the assault, witnessed it for the longest time, and followed the assailants’ vehicle, testified that there were only two persons in the vehicle.

III

BUCIK’S APPEAL

[17]         Insofar as Bucik was concerned, his state of mind was the central, if not the only, live issue for the jury. The trial judge reviewed evidence relevant to that issue. During that review he said:

In considering this essential element, as it relates to Mirko Bucik, you are entitled to take into consideration the testimony of Ursula Prince, if you accept it, that Mirko Bucik went looking for Terry Auld to teach he and Andrea Beninger a lesson.  You can consider her testimony that Mirko Bucik told her that he gave the guy a kick while he was on the ground.  You can also consider Ursula Prince’s statement of September 18, wherein she said Mirko Bucik told her they were going to “kill the bastard” although he was not the one who made that remark.  [Emphasis added.]

[18]         Unfortunately, the trial judge misapprehended the evidence. According to Prince’s “K.G.B.” statement Bucik had told her that Harrington said “I’ll kill the bastard”.  Prince did not say that Bucik used the phrase, “they were going to kill the bastard”. 

[19]         The difference in the two versions of the statement was potentially of evidentiary significance.  On the version provided by the trial judge, the jury could use the statement as evidence of Bucik’s intention to jointly pursue and kill Mr. Auld.  On the evidence as actually given, the statement at its highest for the Crown was evidence of Bucik’s knowledge of Harrington’s intention to kill Mr. Auld.  If the jury found that Bucik had that knowledge, the jury could infer from the fact that Bucik continued to look for and then jointly assaulted Mr. Auld that he intended to aid Harrington knowing Harrington intended to kill, or that he had entered into a common design with Harrington to kill Mr. Auld.  The comment, however, only had that potential probative value if Bucik understood Mr. Harrington to mean the comment literally.  If Bucik understood the comment only as an expression of Harrington’s anger, it could not fix him with knowledge of Harrington’s intention to kill, even if Harrington in fact meant the statement literally. 

[20]         By describing the statement as “they were going ‘to kill the bastard’”, the trial judge effectively treated the statement as if it was adopted by Bucik, and removed Bucik’s understanding of what Harrington meant by the comment from the jury’s evaluation of the evidentiary worth of the statement.  As explained above, that understanding was a crucial determination that had to be made before the evidence could inform Bucik’s state of mind prior to, and at the time of, the assault.

[21]         Because of the trial judge’s misapprehension of the substance of the comment allegedly made to Prince by Bucik, he did not explain to the jury the analysis needed before that statement could support an inference that Bucik had the mens rea required for murder.  The jury should have been told that it must first decide whether Bucik had actually made the statement to Prince.  This was a live issue. In her trial testimony, Prince attributed the statements to a third party.  Next, the jury should have been told that if it was satisfied that Bucik made the statement to Prince, it had to be satisfied that he used the word “kill” in making the statement.  Once again, there was conflicting evidence on this issue.  Finally, and most importantly, the jury could only use the statement as evidence that Bucik had the mens rea for murder if satisfied that he understood Harrington to literally mean the words used, as opposed to meaning that he wanted to assault Mr. Auld and teach him a lesson.  The very nature of the statement made this a live issue at trial.

[22]         The trial judge’s misapprehension of what Prince said Bucik told her Harrington had said was exacerbated by his failure to put that comment in the context of the rest of the comments attributed to Bucik by Prince in her “K.G.B.” statement.  According to her statement, Bucik gave a rather detailed account of the events.  There were several elements of that account that gave credence to Bucik’s claim that he was not a party to murder.  For example, Bucik told Prince that he did not know that Harrington had a weapon while they were in the vehicle.  That comment, and other parts of the statement attributed to Bucik, should have been reviewed with the jury so that it could properly assess what Bucik understood Harrington to mean by his comment “I’ll kill the bastard.”

[23]         A misstatement of a single piece of evidence in a jury instruction will usually not result in reversible error, particularly where there is no objection by counsel.  Juries are told they should rely on their own recollection of the evidence.  However, in this case, the misstatement involved a very important piece of evidence relating to what was for Bucik the determinative issue at trial.  The misstatement was a relatively subtle one, but nevertheless gave the evidence significantly more potential probative value than it in fact had.  I am satisfied that those features of this particular case, combined with the failure to put the impugned statement in the context of the exculpatory portions of Bucik’s statement to Prince, resulted in reversible error.

IV

HARRINGTON’S APPEAL

[24]         Counsel for Harrington argues that the trial judge failed to properly explain to the jury the operation of the requirement that the Crown prove Harrington’s guilt beyond a reasonable doubt.  She submits that the trial judge’s general instructions on reasonable doubt were adequate, but that he failed to relate that fundamental principle to both the exculpatory portions of Harrington’s statement to Detective Matthews and to the eye witness evidence that excluded Harrington as the person wielding the hammer.  I agree with her submission.

[25]         The case against Harrington rested on his statement to Matthews placing him at the scene, the evidence that two people attacked Mr. Auld, the evidence that one assailant struck Mr. Auld repeatedly with a hammer while the other punched and kicked him, and the evidence that Bucik was the person punching and kicking Mr. Auld.  The Crown argued that by the process of elimination, Harrington must have been the person wielding the hammer. 

[26]         In his defence, Harrington relied on his statement to Detective Matthews that he was not the person swinging the hammer and on identification evidence given by Crown witnesses.  That evidence not only did not identify Mr. Harrington as the person with the hammer, but also was, in many respects, inconsistent with the Crown’s claim that Harrington was the person who hit Mr. Auld with the hammer. 

[27]         Harrington’s statement to Detective Matthews was obviously an important piece of evidence.  The Crown maintained that Harrington, wrongly believing that the police could connect him to the homicide, tried to protect himself by reaching out to the family friend, Detective Matthews, for help and that in doing so sought to shift the main liability for Mr. Auld’s death to others by denying using the hammer.

[28]         The Crown’s interpretation of the statement made by Harrington to Detective Matthews was a tenable one.  It made the credibility of the exculpatory portion of the statement an important consideration for the jury. 

[29]         In instructing the jury on the use it could make of Harrington’s statement to Detective Matthews, the trial judge said:

If you decide that one or both of Ian Harrington and Mirko Bucik made a remark that may help him in his defence, or if you cannot decide whether he made such a remark, you will consider that portion of the statement along with the rest of the evidence in deciding whether you have a reasonable doubt about Ian Harrington’s or Mirko Bucik’s guilt.

You may give anything you find Ian Harrington or Mirko Bucik said as much or as little importance as you think it deserves in deciding this case.  It is for you to say.  Anything you find said by Ian Harrington or Mirko Bucik, however, is only part of the evidence in this case.  You should consider it along with and in the same way as all the other evidence.

[30]         The trial judge’s instructions are accurate, although they focus primarily on the question of whether the statement was made to Detective Matthews, a fact that was not really contested at trial.  However, in instructing the jury that it could “consider” the exculpatory portion of the statement, the trial judge did not explain to the jury how they should “consider” it. 

[31]         Realistically speaking, and given the Crown’s theory of the case, if the jury believed the exculpatory portion of the statement, it would have acquitted Harrington.  I have no doubt that the jury would understand that if the exculpatory portion was believed, Harrington should be acquitted.

[32]         However, the exculpatory portion of Harrington’s statement to Detective Matthews had value for the defence, even if it was not believed, as long as it was not rejected by the jury as untrue.  It was not necessary for the jury to decide that the statement was true before that statement could, considered in the context of the entirety of the evidence, provide the evidentiary basis for a reasonable doubt as to whether Harrington was the person swinging the hammer.  The jury should have been told that the exculpatory portion of the statement had potential value to the defence even if it was not believed as long as it was not rejected by them as untrue. 

[33]         The lesson from R. v. W. (D.), [1991] 1 S.C.R. 742, is that assessments of the credibility or reliability of exculpatory evidence in a criminal case do not raise either/or choices, but must reflect the application of the burden of proof placed on the Crown to prove its case beyond a reasonable doubt.  An instruction to the jury to the effect that exculpatory evidence can be the source of a reasonable doubt even if not affirmatively believed is particularly important because it is arguably not the kind of common sense reasoning that jurors would apply in making credibility assessments in their day-to-day lives. 

[34]         The exculpatory portion of Harrington’s statement to Detective Matthews was potentially important to the defence.  The jury should have been told that unless it rejected that portion as untrue, it could consider Harrington’s exculpatory statement in the context of the rest of the evidence when deciding whether the Crown had discharged its burden of proof.

[35]         The trial judge made the same mistake in failing to relate the Crown’s obligation to prove Harrington’s guilt beyond a reasonable doubt to the eyewitness evidence.  Much of that evidence was exculpatory.  Indeed, the Crown disavowed any reliance on the eyewitness evidence beyond its use as evidence that two persons, one with a hammer, assaulted Mr. Auld. 

[36]         The evidence identifying the hammer wielder came from Mr. Auld’s girlfriend, who was assaulted by that person immediately before the attack on Mr. Auld, and two persons who saw all or part of the fatal altercation.  The descriptions they provided of the person with the hammer were inconsistent with Harrington’s facial features, his physical build, and his hair colour.  The witnesses also testified that the person with the hammer, who was wearing a short sleeved shirt, did not have any tattoos on his arms.  Mr. Harrington had tattoos on both arms.  The three witnesses also placed the hammer in the assailant’s right hand during the attack.  Mr. Harrington is left-handed.  The two witnesses who were shown photo line-ups that included Harrington’s photograph indicated that he was not the person with the hammer. 

[37]         As with the exculpatory portions of the statement to Detective Matthews, the potentially exculpatory portions of the eyewitness evidence were of no value to Harrington’s defence if the jury rejected those portions as unreliable.  However, the jury did not have to accept those portions as reliable for that evidence to assist the defence.  Unless the jury rejected the exculpatory portions, they could be used by the defence to support Harrington’s claim that the jury should have a reasonable doubt as to whether he was the person wielding the hammer:  see R. v. T.L., 2008 ONCA 763. 

[38]         The instruction was particularly significant in this case in that the exculpatory eyewitness evidence came from three different sources and demonstrated several potential significant inconsistencies between Harrington’s description and that of the person swinging the hammer.  This evidence was potentially fertile ground in which to plant the seeds of a reasonable doubt.

[39]         Counsel for Harrington specifically requested an instruction relating the reasonable doubt requirement to the potentially exculpatory identification evidence.  That request adds force to the submission on appeal that Harrington’s defence relied on that evidence.  The failure to relate the reasonable doubt requirement to the potentially exculpatory eyewitness identification constitutes reversible error in the circumstances of this case. 

V

CONCLUSION

[40]         I would allow the appeals, quash the convictions and order a new trial on the charge of second degree murder.

RELEASED:  Aug. 3, 2011                                     “Doherty J.A.”

     “DD”                                                                     “I agree Robert P. Armstrong J.A.”

                                                                                    “I agree G. Epstein J.A.”