COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Jackson, 2013 ONCA 445
DATE: 20130627
DOCKET: C49606
Rosenberg, Epstein and Lauwers JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Daniel Jackson
Appellant
Timothy E. Breen, for the appellant
Roger A. Pinnock and Scott Latimer, for the respondent
Heard: January 17 and 18, 2013
On appeal from the conviction entered on March 2, 2007 by Justice M. R. Dambrot of the Superior Court of Justice, sitting with a jury.
Rosenberg J.A.:
[1] The appellant appeals his conviction for first-degree murder following a trial before Dambrot J. and a jury. The single substantive issue in the case was identity. The prosecution alleged that the appellant executed Tyrone Downey on the dance floor of the Cheers Tavern in Toronto. The appellant relied upon an alibi, first disclosed at trial. He admitted that he went to Cheers just before the killing to purchase drugs, but testified that at the time of the killing he was in a taxi on the way back to another tavern, the Duke of York, where he had been earlier in the evening to attend a birthday party for his girlfriend’s mother.
[2] While the appellant raises several grounds of appeal, the principal grounds concern the admissibility of evidence of the narrative of the police investigation, especially evidence adduced in reply, and the cross-examination of the appellant on his alibi.
[3] The appellant submits that the evidence of investigative narrative, which included opinions and hearsay from the investigating officers, was highly prejudicial. He also submits that the cross-examination on his failure to disclose his alibi and statements made by Crown counsel during the closing address to the jury infringed on the right to silence. The Crown submits that by attacking the integrity of the police investigation, the defence made the impugned evidence of investigative narrative admissible. It submits that no prejudice was occasioned by the opinions of the police officers. The respondent also submits that no prejudice was occasioned by Crown Counsel’s cross-examination or his address to the jury.
[4] For the following reasons, I would dismiss the appeal.
[5] The following review of the evidence and description of how the trial unfolded is necessary to the proper disposition of this appeal. One thing that is important to the context of this case is that many of the witnesses, like the appellant, either grew up in or were associated with the Regent Park and Donmount Court areas of Toronto.
[6] In addition to the testimony of witnesses, the Crown relied on intercepted communications between the appellant and others. The appellant chose to testify in order to respond to the wiretap evidence. The Crown then sought to adduce reply evidence, partly in response to assertions made by the appellant in his testimony with respect to the integrity of the police investigation.
[7] In the early morning of Saturday September 6, 2003, Tyrone Downey was shot twice at the Cheers Tavern. The 911 call reporting the shooting came in just before 1:59 a.m. By chance, a surveillance team from the Guns and Gangs task force of the Toronto Police Service was keeping watch on the Cheers Tavern that night. Prior to the shooting, the officers noted a Lincoln Navigator registered to the appellant’s company circling the Tavern. A black male was driving the vehicle and a white male was in the passenger seat. The prosecution’s theory was that the appellant was the passenger and the driver was his friend Paul Dookie. Hours after the shooting, Dookie, with the appellant’s girlfriend Lynzee Freeman, would attempt to retrieve the vehicle from where it had been parked near Cheers.
[8] Around the time of the shooting, Detective Constable Jason Heard saw a man walking away from Cheers. This officer purported to identify the man as the appellant and claimed that he saw him leaving Cheers after the shooting, at 2:00 a.m. The defence attacked both the accuracy of D.C. Heard’s identification and the time that he saw the appellant walking away from Cheers.
[9] Several people who had been in Cheers at the time of the shooting described the shooter as a short white man with black hair. This general description was consistent with the appellant’s appearance. In addition, several people placed the shooter very close to R.T. Davis, an associate of the appellant’s.
[10] Charity MacGillivray, who was one of those at Cheers on the night in question, testified at the preliminary inquiry but was unavailable for the trial. Her testimony was read in at the trial. Crown counsel read in her examination-in-chief and defence counsel read-in her cross-examination. At the preliminary inquiry, she testified that she grew up in the Donmount Court area and had known both the appellant and Davis since her teens. She began the night at the Duke of York with Davis and some others, but then went to Cheers. Sometime after arriving at Cheers, she saw the appellant. Later, she heard two shots and saw the deceased on the floor. She fled the tavern and went with some friends to an apartment. She then called Patrick Malcolm to come and pick her up.
[11] In cross-examination, MacGillivray testified that on October 8, 2003, she gave a statement to Det. Sgt. Newton. She understood that the police came to see her because Malcolm told them that she had identified the appellant as the shooter, something that she denied. MacGillivray believed Malcolm had lied to the police to get their assistance with some outstanding charges he was facing.
[12] One month after the shooting, Malcolm had in fact been arrested on drug charges. He said that he had information about the Cheers shooting and asked Det. Sgt. Skubic for assistance with those charges. He was released on a promise to appear after giving his statement. He received a very lenient sentence following his conviction for possession of cocaine for the purpose of trafficking.
[13] In cross-examination, MacGillivray testified that Det. Sgt. Skubic, the investigating officer, visited her and offered her witness protection. He also told her that if she did not tell the truth, she would be charged with perjury and obstruction of justice. She testified that the police “offered me witness protection to label somebody”. Defence counsel asked: “To label Danny Jackson?” She replied, “Yes”. She testified to her belief that Skubic believed the appellant was the shooter, wanted her to identify him, and believed that she was afraid to identify him. MacGillivray denied that she was afraid of the appellant. The appellant did not apply to the trial judge to edit out from the transcript any of the defence cross-examination of MacGillivray.
[14] Patrick Malcolm testified at the preliminary inquiry but he too was unavailable at the trial. He testified that the day after the shooting, the appellant came to his home and asked him if he wanted to buy a gun. Malcolm declined.
[15] Ryan Lancelotte grew up in Regent Park. He had a lengthy criminal record and was arrested on property offences just days after the shooting. Following his arrest, he told police that he had information about the Cheers shooting, passed on some rumours and was released on a promise to appear. He testified that a few days after he was released, he ran into the appellant. Lancelotte testified that, in the course of that conversation, the appellant “told me he would get ‘em”. A few weeks later, Lancelotte was arrested again. At this time, he gave the police a statement in which he described the conversation he had with the appellant, and was released.
[16] The appellant testified that he grew up in Regent Park. He knew the deceased but denied having a motive to kill him. The appellant gave an account of his whereabouts on September 5 and 6, 2003. His testimony was that he spent the morning with his common law spouse, Sabita Persaud, and their children. Around 1:00 p.m. Persaud took the children in the Navigator to her father’s home. He denied driving the Navigator that day and in fact testified that he rarely drove it. He usually drove his truck or one of several minivans registered in Lynzee Freeman’s name. Later that evening, Persaud called and said that Paul Dookie wanted to use the Navigator. The appellant agreed. He subsequently went out for the evening, taking one of the minivans.
[17] At 11:40 p.m., the appellant arrived at the Duke of York for Freeman’s mother’s birthday party. At some point, the appellant went outside and smoked his last joint of hash. He wanted more and so called Dookie, asking him to come to the Duke of York. Dookie refused because he was on his way to Cheers. The appellant left the Duke of York and took a taxi to Cheers, arriving between 1:30 and 1:45 a.m. He found Dookie and obtained some hash from him. He asked Dookie for a ride back to the Duke, but Dookie declined. The appellant left the bar, walked to an intersection and found a taxi, which took him back to the Duke. He arrived at around 2:00 a.m. He and Freeman left the Duke around 2:30 a.m. and eventually ended up at her residence. He left Freeman’s residence at around 5:00 a.m. and went home.
[18] On the afternoon of September 6, 2003, Dookie called the appellant and told him that the Navigator was parked near Cheers and that there had been an incident, perhaps a murder. Dookie and Freeman attempted to retrieve the Navigator, and were interviewed by police, who were observing the vehicle. After Dookie told the appellant about his encounter with the police, the appellant came to believe he was a suspect in the shooting.
[19] Det. Sgt. Skubic testified that by September 10, 2003, the appellant was a suspect in the Cheers shooting. Skubic attempted to speak to the appellant in the days following the shooting but, in a voicemail, was referred to the appellant’s lawyer.
[20] Det. Sgt. Newton testified that she interviewed Charity MacGillivray as a result of information received from Patrick Malcolm. She described MacGillivray as very upset and anxious during the interview. Newton gave a similar description of her interview with another witness, Christopher Parker. Parker had also been at Cheers the night of the shooting and testified to seeing the appellant there. In cross-examination, Parker testified that Newton and another officer told him that they believed he was withholding information from them, and that he felt pressured to connect the appellant with the shooting.
[21] Skubic testified that the police believed some 80 patrons were in Cheers at the time of the shooting. In cross-examination, he testified that the police believed that witnesses from the Regent Park and Donmount Court areas were withholding information. Newton testified that none of the witnesses at Cheers came forward to offer information to the police.
[22] On June 28, 2004, the police obtained an authorization to intercept the communications of the appellant and several other people. After the wiretapping began, the police contacted people associated with the appellant, hoping to stimulate conversation. They also interviewed the appellant himself, and told him that they were aware that his Navigator was found at the scene. In a subsequent conversation, they advised the appellant that they believed he had been at the Duke of York prior to the shooting.
[23] The Crown relied upon several intercepted communications between the appellant and others. The Crown alleged that several of the conversations could be interpreted as admissions by the appellant. In his testimony, the appellant provided an innocent explanation for these conversations. The content of some of the explanations given by the appellant formed the basis of the Crown’s decision to call evidence in reply. Some of the intercepted phone calls are reviewed below.
[24] In a phone call dated June 30, 2004, the appellant and his friend October Newton discussed threats she was receiving from the deceased’s girlfriend. In the course of the call, the appellant questioned why “they” were coming after her since “they know that it’s just me”. He then said: “You know what happened to the last bully? … He met a bull.”
[25] The appellant denied that the “bull” was the deceased. He testified that he was referring to a Jameel Johnson, who he believed was responsible for shooting him on October 1, 2003, while he was driving out of the garage at his residence. Several months later, he noticed Johnson pursuing him and believed that Johnson wanted to kill him. The appellant was able to force Johnson’s car into a wall. He testified that, as a result of the accident, Johnson was arrested and found in possession of two handguns and a bullet-proof vest. In cross-examination, it was suggested to the appellant that he had fabricated the Johnson story and that Johnson was never arrested with firearms.
[26] In the course of this same call, Newton discussed needing a gun for protection. She was worried, however, about using a gun that she believed was dirty. The appellant promised her that the gun was clean and said: “the other one’s fishin. I ain’t a fool.” The appellant testified that this conversation, too, had nothing to do with the Cheers shooting. He said that the gun they were discussing had been supplied by someone named Darryl McCann, who had been arrested in connection with the discharge of a firearm, and that Newton was worried that the gun in her possession had been used by McCann. The appellant testified that McCann had told him that he had disposed of the gun involved in that incident.
[27] When this aspect of the appellant’s testimony was explored in cross-examination, the appellant testified that McCann had been arrested sometime in 2002 or 2003 for firing a gun. Relying on McCann’s criminal record, Crown counsel suggested to the appellant that McCann pled guilty to careless storage of a firearm on November 8, 2004, and that at the time of this phone call, McCann had no record for firearms offences.
[28] Subsequently, in the absence of the jury, Crown counsel told the judge and defence counsel that he had located the occurrence report for this offence, which showed that it related to an incident on August 19, 2003 when McCann allegedly had fired a gun from a car. When the jury returned, and with the consent of defence counsel, the trial judge instructed the jury that McCann’s criminal record, as revealed in the questions put by Crown counsel, was not evidence; the Crown’s suggestions were not accepted by the appellant and so were not proved. The trial judge’s handling of this evidence forms one of the grounds of appeal.
[29] Several of the intercepted phone calls discussed the events that occurred on the night of the shooting. In some, the appellant said that he had been at the Duke of York that night. In these conversations, he never mentioned that he briefly went to Cheers and was in a taxi returning to the Duke of York at the time of the shooting. The appellant testified that he suspected that the police were wiretapping his calls by this time; he did not want to disclose where he was when the murder took place because he believed the police would put pressure on people in order to discredit him.
[30] In another call, it appeared that the appellant was coaching Freeman to say that he had been at the Duke of York the whole time. The appellant denied that this was a proper interpretation of the conversation. In still others, the appellant told Freeman and another person not to say anything about his whereabouts that night.
[31] In a call dated October 9, 2004, the appellant and Freeman discussed being at the Duke of York on the night of the killing and being the last to leave, at about 2:15 a.m. In this call, the appellant appears to be seeking Freeman’s help in getting witnesses from the Duke of York to support his alibi. The appellant denied this interpretation of the call.
[32] On the first anniversary of the shooting, the police held a press conference and advertised a reward for information concerning the shooting. The following day, the police intercepted a conversation between Freeman and the appellant that could be interpreted as the appellant’s being concerned that another acquaintance, Jodie Rideout, would implicate him for the reward. The appellant, in discussing this phone call, testified that he was concerned that the police would be able to purchase testimony implicating him in the murder.
[33] The appellant’s distrust of the police came through in a number of other allegations he made against the police during his examination–in-chief. He believed that the police had provided contact information relating to several potential Crown witnesses to the deceased’s girlfriend. One of these witnesses claimed to have been threatened by the deceased’s girlfriend. In discussing his belief that Jodie Rideout had been offered a reward and witness protection if she would implicate the appellant, he likened the police to bullies who put words in people’s mouths. He had heard that the police were offering witnesses protection if they would label him. He testified that he lied on the telephone about his relationship with Freeman because he believed the police would disclose the relationship to his spouse, Persaud. He believed that, from very early on, he was the exclusive focus of the police investigation.
[34] During his cross-examination of the appellant, Crown counsel alerted defence counsel and the trial judge that he wanted to pursue three areas by way of reply evidence through Det. Sgts. Skubic and Newton. First, he wanted to lead evidence of what the police could have done had the appellant’s alibi been disclosed early enough for the police to investigate it. This would lay a foundation for a direction from the trial judge that the alibi was entitled to less weight. While the transcript is not entirely clear, it appears that defence counsel agreed that the best course would be to hear the evidence and then allow the trial judge to rule on whether the Crown was entitled to such a direction. Accordingly, Skubic and Newton testified as to investigative steps that could have been taken in respect of the alibi, such as checking taxi logs and cell phone records.
[35] Second, Crown counsel wanted to cross-examine the appellant on, and possibly lead evidence of, the appellant’s prior contacts with Det. Skubic. The appellant had previously been a suspect in an attempted murder investigation and was cleared following an investigation by Skubic. The Crown sought to have the jury infer from this encounter that the appellant had no reason to distrust the police, especially Skubic. Defence counsel objected to this evidence, and the trial judge expressed considerable concern about it. In the end, it seems that Crown counsel abandoned this issue without a formal ruling from the trial judge.
[36] Third, Crown counsel wanted to have Det. Sgt. Skubic testify as to the assertions of misconduct made by the appellant against the police investigation during his examination-in-chief. Crown counsel was permitted to call this evidence. Skubic denied providing any witness contact information to the deceased’s girlfriend. In fact, the deceased’s girlfriend was prosecuted as a result of a complaint by Freeman to the police. Defence counsel agreed that this was proper reply evidence.
[37] Skubic also testified that neither Jodie Rideout nor Charity MacGillivray were offered a reward for information identifying the appellant. Because both women had provided statements before the reward was offered, they were ineligible. Skubic testified that MacGillivray was very frightened, and had been offered witness protection. He testified that:
We believed that she knew who the shooter was, and, in fact did tell Patrick [Malcolm], as he indicated to me in that interview, that the accused, Mr. Jackson, was the shooter that night.
[38] Skubic testified that Jodie Rideout and Amanda Viggers were both offered witness protection. In Skubic’s opinion, both had crucial evidence and both expressed fear and anxiety about testifying. Both women were also charged with perjury. Skubic testified that he believed Viggers had told some of the truth but “wouldn’t go that next step and tell us the whole truth about what she saw that night”. Skubic testified that he believed Rideout was also withholding evidence; she denied knowing the appellant when shown his picture in a photo array. In cross-examination, Skubic testified that these perjury charges had been withdrawn or stayed because the Crown had failed to meet its disclosure obligations.
[39] Skubic testified that Sabita Persaud was charged with three counts of perjury, in charges unrelated to the Cheers shooting.
[40] In cross-examination, Skubic testified that on February 24, 2004, Jameel Johnson was arrested for several firearms offences. The charges arose out of a “routine traffic stop”.
[41] The appellant raises the following grounds of appeal, which he submits led to a miscarriage of justice.
1. The trial judge erred in permitting the prosecution to adduce evidence of the investigative narrative, particularly in reply, and that the appellant was prejudiced thereby.
2. Crown counsel improperly attempted to use disbelief of the appellant’s alibi testimony as positive evidence of guilt.
3. The appellant was improperly cross-examined on his alibi and his failure to preserve evidence corroborating his alibi, undermining his right to silence.
4. The trial judge erred in failing to correct Crown counsel’s erroneous suggestion that McCann did not face gun charges at the time of the wiretap conversations.
5. The trial judge erred in failing to direct the jury that a statement by an unidentified patron was admissible for its truth.
6. Crown counsel improperly cross-examined the appellant on his lifestyle.
[42] The appellant submits that the effect of the investigative narrative evidence led in chief was to place before the jury the opinion that investigating officers believed the appellant was the shooter; that any number of people in Regent Park and Donmount Court knew that the appellant was the shooter, but were afraid to disclose the information; and that if witnesses had told the police what happened, the appellant would be effectively prosecuted.
[43] To properly resolve this ground of appeal it is necessary to consider the narrative of the trial and review some of the Crown’s evidence. In his very helpful submissions, Mr. Breen referred to various parts of the record which he says show that, from the outset of the trial, Crown counsel pursued a theory that people present at Cheers were reluctant to identify the appellant as the shooter. Two types of evidence are pointed to in this regard. First, the evidence of some of the witnesses who testified; second, evidence of the investigative steps by which witnesses were contacted and details about the wiretap authorizations.
(i) Witness evidence
[44] Troy Atkinson spoke with the deceased shortly before the shooting. The Crown led evidence that Atkinson had a criminal record, was from the Donmount Court/Regent Park area and had told the police on the night of the shooting that he did not see anything. He later came forward in response to a newspaper article that identified him as a person of interest in the case. His evidence at trial was that he saw the deceased fall straight back onto the floor, and a male standing over Downey who said “how you like that”. He did not see the shooter. In cross-examination, the defence elicited evidence that Atkinson knew the appellant from the neighbourhood and had not seen him that night at Cheers. In re-examination, the Crown counsel explored the nature of his relationship with the appellant; Atkinson’s evidence was that the appellant was not a friend but “[j]ust somebody I see around the bar”. Defence counsel (not Mr. Breen) did not object to the examination or re-examination.
[45] I can see nothing prejudicial with the line of questioning by Crown counsel, nor any attempt to create a sinister atmosphere. Given that the defence made Mr. Atkinson’s non-identification of the appellant a live issue, the Crown was, within limits, entitled to explore Atkinson’s knowledge of the appellant in re-examination. For the most part, the examination-in-chief merely laid out the narrative as to how he came forward.
[46] The second witness to whom Mr. Breen referred the court was Christopher Parker. Parker testified that he saw the appellant in Cheers. Crown counsel led evidence that Parker initially did not identify the appellant when shown a photo array. Parker admitted that he did recognize the appellant at the time, but said that he did not identify him because he had “[n]o way of helping him out in any way”. In cross-examination, Parker admitted that at the preliminary inquiry he testified that he could not put the appellant in the bar prior to the homicide. He then testified that he could not be certain that the appellant was in the bar.
[47] Again, there was no objection to the Crown’s examination of this witness. I cannot see that this examination was improper in the circumstances. The examination does not support the theory that Crown counsel had embarked on an improper tactic. Parker’s reluctance to identify the appellant arose out of reasons personal to him and, possibly, because he was simply not sure if the appellant was in Cheers that night. It was not improper for Crown counsel to lay before the jury the frailties in Parker’s evidence.
[48] Mr. Breen also referred the court to the evidence of Amanda Viggers. Viggers was with a group of friends, including R.T. Davis, first at the Duke of York and then at Cheers. She was present when the deceased was shot, but did not see the shooter. In examination-in-chief, Crown counsel asked her whether Davis hade made any comment about the shooting. Crown counsel asked her what he said and whether he spoke to the shooter. Defence counsel began to object to the question, and the trial judge himself quickly intervened. After the jury left the room, Crown counsel submitted that Davis had said he was talking to the shooter. The trial judge would not permit the question.
[49] In my view, the examination–in-chief of these witnesses does not provide any evidentiary basis for the appellant’s claim that a theory about the public’s lack of co-operation was put forward as positive evidence of his guilt.
[50] There is no question that the cross-examination of Charity MacGillivray at the preliminary inquiry, including her testimony that she believed she was offered witness protection to label the appellant, included evidence that the police were questioning her in a manner that suggested she knew that the appellant was the killer. However, this evidence was led in cross-examination by the defence. Thus, it was the defence that potentially made this aspect of the investigative narrative relevant. It did so to bolster the defence position as to why the appellant did not disclose his alibi and why he counselled others not to co-operate with the police. While some evidence about MacGillivray’s demeanour when she was being interviewed was led in chief, there was no objection to this evidence. The tactical decision by defence counsel to pursue this line of questioning did not result in any miscarriage of justice.
(ii) Evidence of investigative steps
[51] During the Crown’s case in chief, Det. Sgts. Skubic and Newton gave a narrative of their investigation, including how witnesses – such as Dookie, Persaud, Parker, MacGillivray, Viggers and Davis – were contacted. In some cases, as with Davis, the police had difficulty getting the witness to agree to an interview and give a statement. No objection was taken to this evidence. This evidence was, in my view, largely irrelevant. It was also relatively harmless. It demonstrates that potential witnesses to the killing did not want to be involved in the investigation. But the evidence does not go further and support the appellant’s position that the Crown laid an evidentiary foundation for the theory that eye-witnesses to the murder knew the appellant was the shooter but refused to identify him. Admission of this irrelevant evidence did not prejudice the appellant.
[52] The Crown also led evidence from Skubic and Newton about how the wiretap authorization was obtained and executed. Skubic went into some detail about who was named in the authorization and why. It seems to me that this evidence was largely irrelevant. The fact that the police obtained an authorization was relevant, as it explained how it was that the prosecution could lead evidence of the appellant’s private conversations. The detail about the authorization process and the contents of the authorization, however, was unnecessary. But again, there was no objection to this evidence from the defence and I can see no prejudice to the appellant. It did not identify the appellant as the shooter or demonstrate that the witnesses knew more than what they were saying. At most, an inference could be drawn that the people named in the authorization may have had information about the shooting.
[53] To summarize, while the prosecution led some unnecessary and irrelevant evidence of investigative narrative, that evidence did not prejudice the appellant’s fair trial rights. The potentially prejudicial evidence led through Charity MacGillivray was led by the defence, not the Crown, and was relied upon by the defence to support the appellant’s explanation for why he said certain things in the wiretapped conversations. The leading of this evidence was a reasonable tactical decision by the defence.
[54] Ultimately, the appellant’s claim that the Crown attempted to lead evidence of a conspiracy of silence in the Regent Park/Donmount Court area of Toronto is, in my view, simply not supported by the evidence. At the end of the day, as the trial judge noted in the pre-charge discussion:
And in a sense the jury will probably agree that some people, not necessarily these witnesses, must have seen more in the bar than they’ve told the police. It’s only logical that out of 80 or whatever people, somebody saw a little more than what we’ve heard or what the police were told. So that wouldn’t come as any big surprise to them. And it probably wouldn’t be a concern.
(i) Reply evidence going to the appellant’s assertions of misconduct
[55] Investigative narrative evidence was also led by the Crown in reply. As explained earlier in these reasons, Crown counsel wanted to call Det. Sgt. Skubic to deny the appellant’s allegations of misconduct. The ruling on that issue was short and came in response to submissions from defence counsel as follows:
[Defence counsel]: … And Your Honour, I don’t want to speak for too long, but in essence, what Mr. Jackson is saying, rightly or wrongly, “I don’t trust the police. I heard that Detective Skubic was not being fair to me.” That’s what he heard. It’s all rumour. I can’t, I am not in a position, I suppose, to prove that, but that’s what Mr. Jackson felt. And I’m not trying to prove that. Mr. Jackson had a state of mind based on his own makeup, based on all kinds of stuff that he might have heard, and he took, he is taking a position. I’m not saying that the officer is, is – well, I’m gonna say some specific things about Charity MacGillivray and you know from evidence that we have before the court, and perhaps in relation to Chris Parker, because that’s before the court. But, I’m not going to cast general aspersions at Detective Skubic.
THE COURT: Well, you may not, and I understand that, but Mr. Jackson has. Not general assertions, specific assertions.
[Defence counsel]: Yes.
THE COURT: In relation to this investigation. And I mean, I have no, I don’t have a lot of doubt that the Crown would be entitled to call Detective Skubic in reply for him to deny --
[Defence counsel]: Yeah.
THE COURT: -- the specifics that have been alleged.
[56] Ordinarily, evidence of how the police conducted the investigation and interacted with various witnesses will be inadmissible because it is irrelevant to any issue in the case or may constitute hearsay. But, the conduct of the defence may make the evidence relevant and admissible. As this court held in R. v. Van, 2008 ONCA 383, 92 O.R. (3d) 462 at para. 29,rev’d on other grounds, 2009 SCC 22, [2009] 1 S.C.R. 716:
As the defence attacked the integrity of the investigation, the Crown was entitled to lead evidence about the police investigation that included hearsay evidence as part of the narrative necessary to explain how the investigation proceeded.
[57] Further, depending on the nature of the evidence led and the extent to which it is prejudicial, the trial judge will be required to give a limiting instruction referencing the inadmissible opinion or hearsay evidence, and the use the jury can permissibly make of the evidence: see R. v. Van, 2009 SCC 22 at para. 33. For example, if the prosecution has been allowed to lead hearsay evidence, perhaps to explain why the police focused on the accused as opposed to other suspects, the jury will have to be told that the evidence was not admitted for its truth but simply to explain why the police did certain things. In other cases, no special instruction will be required because the limited use of the evidence will be obvious.
[58] A simple example is Skubic’s reply evidence that the police did not provide the deceased’s spouse with private information about the appellant’s family. The jury would not need a special instruction as to the limited use of this evidence, since it was obvious why it was led. The Crown was entitled to meet the appellant’s allegation that the police investigation put his loved ones at risk and show it had not done so. Of course, the jury could still accept that the appellant really believed the police were unfairly targeting him and his family. But there was no reason for any special direction as to how use this evidence. Its use was apparent by reference to the Crown and defence theories.
[59] The appellant submits that the reply evidence was not admissible to rebut an attack on the integrity of the investigation, because there was no such attack. Rather, the appellant was merely responding to the prosecution case as presented in the wiretap conversations: the appellant was entitled to explain why he did not co-operate with the police and urged others not to co-operate. Central to this explanation was the appellant’s belief that the investigation was biased; an attempt by the police to frame him. Mr. Breen submits that the reply evidence, to the extent that it disclosed that a reward was offered, witnesses were offered witness protection, and that Amanda Viggers and Jodie Rideout were charged with perjury, tended, in fact, to confirm this belief.
[60] The trial judge’s opinion that the appellant did mount an attack on the integrity of the investigation beyond what was necessary to explain the wiretap conversations is entitled to deference. The trial judge had presided over a lengthy trial, had observed the examination and cross-examination of the witnesses and made interventions of his own when he was concerned about the direction some of the prosecution questioning was taking. He was in the preferred position to determine the tenor of the appellant’s defence. Provided there was a basis in the evidence for the trial judge’s opinion, it is not for this court to second-guess that decision.
[61] In my view, there was an evidentiary basis for the trial judge’s holding that there was an attack on the integrity of the investigation. I will summarize several examples.
[62] First, a wire-tapped conversation from September 7, 2004 between the appellant and Lynzee Freeman contained several references to Jodie Rideout from which it could be inferred that the appellant believed she had information, and that he wanted Freeman to keep Rideout from talking. In explaining this conversation, the appellant testified repeatedly that he had heard a rumour that the police had offered Rideout “a reward to implicate me and a spot in the witness protection and I was just saying like if Jodie takes that money and says it’s me, when it’s not me, it – the truth will tell.”
[63] The appellant was entitled to explain that he had heard Rideout was going to falsely accuse him, that she had no evidence against him and that it would be wrong for her to lie and take the reward money and enter the witness protection programme. It was not necessary to his defence to allege that the police would counsel Rideout to commit perjury. The prosecution was entitled to meet that allegation by explaining how the reward and witness protection programmes operated. And, in a direction that I will set out in full below, the trial judge made it clear that these rumours were not admissible for their truth, but only to support the appellant’s belief.
[64] A second example can be seen in a conversation between the appellant and Charlene Barr on September 16, 2004, in which the appellant referred to the reward. Instead of asking the appellant to explain the conversation, defence counsel asked the appellant how he felt about the reward. The appellant responded by saying that a reward is normal in a homicide investigation, but then went on to say that he had heard that police were offering witness protection “to label me”. In the same call, the appellant described a conversation between him and Skubic in which he accused Skubic of putting his height and description out to potential witnesses.
[65] Finally, in a conversation on October 20, 2004 between the appellant, Lisa Freeman, Lynzee Freeman and Ginean Jackson (the appellant’s sister), the appellant discussed the fact that he had heard some women had been charged with perjury. Defence counsel again asked how he felt about that, to which the appellant testified: “I felt that because they never said anything towards me that the police said, you’re, we’ll arrest you, you don’t say, tell us stuff that it’s him, this and that, that’s what I felt why those females got arrested”. This was a gratuitous comment. It did not explain any of his behaviour or what he said in the wiretaps. The prosecution was entitled to meet the allegation that Viggers and Rideout had been wrongly charged with perjury because they would not falsely implicate the appellant in the shooting.
[66] When, in discussing the same call, the appellant started to testify that Lynzee Freeman made a complaint about Violet Halliday, the deceased’s common-law spouse, the trial judge intervened to remind the appellant to answer the question asked. However, defence counsel then asked the appellant to explain why, in the same conversation, he told Lynzee Freeman not to refer to the deceased’s spouse by name but to call her “some dumb bitch”. The appellant responded by testifying that from the beginning he believed the police were giving out the address and telephone number of October Newton and the appellant’s sister Ginean. These answers were not responsive to the question. More importantly, once the appellant made this allegation, supposedly to support his reasons for providing a false alibi and counselling others not to co-operate with the police, the prosecution was entitled to show that these allegations were untrue. If they were, it made the appellant’s claim less credible. In any event, the allegations constituted an express attack on the integrity of the investigation.
[67] As I have shown, in my view, there was an evidentiary basis for the trial judge’s conclusion that the appellant had attacked the integrity of the investigation. Thus, at least some of the investigative narrative that was led in reply was properly admissible, in particular, the following:
· That the police did not provide private information about witnesses to Violet Halliday;
· That Violet Halliday was charged by the police with assaulting and threatening Lynzee Freeman;
· That rewards were not offered to people who had already provided statements to the police;
· That the police did not offer rewards to people to implicate the appellant;
· That witnesses were not pressured by the police to implicate the appellant and were not as part of this pressure offered a place in the witness protection programme.
[68] All of this evidence was directly relevant to rebut the appellant’s attack on the integrity of the investigation. If the jury accepted the reply evidence, it made the appellant’s claim about his reasons for providing a false alibi and counselling other witnesses not to co-operate with the police less credible. The reason for the false alibi was a central issue in the case. Evidence to fairly rebut the appellant’s explanation was admissible in reply. Further, in my view, the trial judge’s directions to the jury concerning the use to be made of some of the investigative narrative were sufficient in the circumstances.
[69] Two parts of the reply evidence should not have been adduced, however. As part of explaining why Charity MacGillivray was offered a place in the witness protection program, Sergeant Skubic explained that MacGillivray appeared very scared and disturbed. He then went on to say this:
We believed that she knew who the shooter was, and, in fact, did tell Patrick [Malcolm], as he indicated in that interview, that the accused, Mr. Jackson, was the shooter that night.
[70] Skubic then testified that he introduced the idea of witness protection to MacGillivray.
[71] It was unnecessary to meeting the appellant’s allegation to introduce what Malcolm had said. If used for its truth, this was potentially prejudicial hearsay. There was, however, no objection to this evidence. This is not surprising since the defence had introduced the same evidence during its cross-examination of MacGillivray. Thus, the inadmissible reply evidence added nothing to what the jury already knew about MacGillivray’s interactions with the police.
[72] That the defence was the first to introduce the subject and did not object when Skubic returned to it in reply persuades me that the appellant was not prejudiced by the reference. This is confirmed by the pre-charge discussion, during which counsel discussed with the trial judge whether the trial judge should mention this exchange in his charge and give the jury a limiting instruction. Defence counsel agreed with the trial judge that no instruction was necessary:
[Defence counsel]: And that wasn’t evidence, certainly wasn’t evidence at trial. And it came out very quickly, and I am not even sure that it’s going to create any sort of - -
THE COURT: The jury will remember it - -
[Defence counsel]: - - yeah.
THE COURT: - - as well as I do, you think?
[Defence counsel]: We might be highlighting it. That’s always the problem when you raise these things.
THE COURT: I am going to tell them I have a little piece on hearsay, which is mostly unspecific, because we’ve had lots of - -
[Defence counsel]: Yeah.
....
THE COURT: So I am going to tell them that that’s why it’s there, but they can’t use that for the truth of it, and I am going to say that’s an example and there are others, so if you want me to add in that Detective Skubic testified that based on the wiretap he had reason he thought that MacGillivray was not telling the truth, that’s hearsay, too, and that’s not something that they can rely on.
[Defence counsel]: Yes.
THE COURT: Now, again, I mean, I don’t know how much you want me to underline that, not that you want me to underline it; if you want me to say it, I am happy to say it.
[Crown counsel]: The Crown position is if [defence counsel] wants it, Crown’s in agreement. If [defence counsel] doesn’t want it, Crown’s in agreement.
[Defence counsel]: Quite frankly, Your Honour, contemplating it, I think the general instruction is probably better.
THE COURT: Better
[Defence counsel]: Highlighting it is perhaps the worse thing.
THE COURT: Yes.
[Defence counsel]: Because I, [Crown counsel] mentioned it to me and I noticed it when it came up, but I wasn’t really, I didn’t attach a lot of significance to it.
[Emphasis added.]
[73] In addition, when the trial judge reviewed MacGillivray’s evidence he pointed out that she denied that she ever told Patrick Malcolm that she had seen the appellant do the shooting.
[74] More troubling was Skubic’s testimony as to why Amanda Viggers and Jodie Rideout were charged with perjury. The appellant testified that he believed the police were using perjury prosecutions and witness protection as a way to persuade witnesses to falsely implicate him. In effect, Skubic’s reply evidence confirmed some of this theory. He testified as follows:
Q. We’ve also heard some evidence about Amanda Viggers. Was Ms. Viggers ever charged with perjury?
A. Yes, she was.
Q. And can you tell us why?
A. Ah, again, in the circumstances of this investigation, ah, I believe that Amanda Viggers was a witness who, ah, told us some of the truth. Insofar as she was at Cheers and she described the activities immediately before the shooting. Based on this investigation and all of the wiretaps and conversations that were intercepted. I believe that she, in fact, knew Mr. Jackson and just, ah, wouldn’t go that next step and tell us the whole truth about what she saw that night.
Q. So what was the purpose of charging her at this point?
A. The purpose of charging her? She had provided a statement to us under oath earlier in this investigation and, ah, I had given her an opportunity, as I had with other witnesses, to go and obtain independent counsel, tell their lawyers everything that they saw and make, you know, an informed decision as to whether or not they wanted to participate in another statement.
Q. Did Ms. Viggers take you up on that suggestion?
A. I believe she contacted counsel, but she did not provide any further statement.
Q. Was Jodie Rideout ever charged with perjury?
A. Yes, she was.
Q. And why?
A. Again, under the same circumstances. Jodie Rideout was a named party in this investigation. And based on the information we had received, ah, I believe that she was withholding the truth from us and when she provided us a statement under oath, uhmm, one of the things that is done with Jodie was she was shown, ah, a photographic line-up, and while I believe that she knew Mr. Jackson, she failed to pick him out of a line-up simply as a person that she knew. Not as a shooter, but just a person that she knew. She denied knowing him.
Q. Were either Amanda or Jodie offered the witness protection plan?
A. Yes, they were.
Q. And again, can you explain to us why they were offered to each of them specifically.
A. Ah, again, the circumstances were the same I expect with all the witnesses. There was, ah, in my opinion, they had crucial evidence with respect to the commission of this offence and they had, ah, expressed fear, anxiety, uhmm, with respect to testifying. So that was again, an option available to them, uhmm, to consider whether or not they were going to continue and participate in the administration of justice and tell us the whole truth.
[Emphasis added.]
[75] The Crown was entitled to meet the allegation that the prosecution was improperly using perjury prosecutions, but Skubic’s personal belief that the witnesses were lying and saw the appellant in Cheers went beyond meeting that allegation. That said, for the following reasons, any prejudice was relatively muted. First, Skubic’s evidence ended up bolstering the appellant’s testimony. It made his claim more credible, and his explanations for giving a false alibi and attempting to persuade witnesses not to talk to the police depended upon his credibility. Second, it could have come as no surprise to anyone at the trial that the police believed in the appellant’s guilt. Third, and again, the pre-charge discussion confirms that defence counsel was not concerned that the appellant was prejudiced by these comments:
THE COURT: I don’t remember mentioning it, but I do remember noting it in my mind. But again, it’s, ah, I mean I guess the jury knows and that the police felt that witnesses were not telling them the whole story.
[Defence counsel]: Yes.
THECOURT: And in a sense the jury will probably agree that some people, not necessarily these witnesses, must have seen more in the bar than they’ve told the police. It’s only logical that out of 80 or whatever people, somebody saw a little more than what we’ve heard or what the police were told. So that wouldn’t come as any big surprise to them. And it probably wouldn’t be a concern.
The only thing is there was a specific mention of MacGillivray and the wiretaps.
[Defence counsel]: Mm-hmm.
THE COURT: So, but I just, I doubt myself that that would have made an impression.
[Defence counsel]: Mm-hmm.
THE COURT: I would be inclined to think you are better with the general instruction than the specific.
[Defence counsel]: I agree.
[Emphasis added.]
[76] Finally, the trial judge gave a lengthy explanation about the use of hearsay evidence including the following:
So when you come to consider any of this hearsay evidence, remember that it may not be used to prove what is said in it, but it is used to help you understand other pieces of evidence. You also heard a bit of evidence of a particularly unfair type of hearsay, and I do not mean you heard it unfairly in this trial, but it is evidence that would be unfair to rely on. That is, you heard a bit of evidence of rumour. You heard that people on the street, and particularly relatives and friends of Mr. Downey, were saying that Mr. Jackson was the shooter. You heard that evidence because Mr. Jackson relies on it to show you why he knew or he concluded or he believed that he was a suspect early on in this case, and why he concluded, or part of why he concluded, that he was being wiretapped, and so he relies on that evidence to some extent to explain why he was so careful not to reveal anything about the Cheers shooting in his private communications.
You may not use the rumour evidence for any other purpose. In particular, you may not use it as evidence that Mr. Jackson committed the murder. The fact that Mr. Downey’s relatives or friends believed that he was the murderer is completely irrelevant to your consideration. But you may use it for the purpose it was led, to help you understand what was in the mind of Mr. Jackson at that time. [Emphasis added.]
[77] As has been repeatedly pointed out by this, and other, courts, attacking the integrity of a police investigation can be a hazardous tactic for the defence: R. v. Mallory, 2007 ONCA 46, 217 C.C.C. (3d) 266 at para. 85, citing R. v. Dhillon (2002), 166 C.C.C. (3d) 262 (Ont. C.A.); R. v. Van, 2009 SCC 22 at para. 46. Both counsel and the trial judge must be vigilant to ensure that the prosecution evidence in response does not overshoot the mark. The probative value of the evidence must outweigh its prejudicial effect. Depending on the nature of the evidence led, a limiting instruction may be required. In this case, I am satisfied that no special instruction about Skubic’s opinion was required, given the position taken by defence counsel. That position was a reasonable one to take and I see no basis for second-guessing trial counsel’s assessment of the prejudicial effect of the evidence.
[78] Leaving aside these aspects of Skubic’s evidence, the appellant’s submission on the reply evidence really comes down to two propositions. The first is that there was no allegation of police misconduct that needed to be met in reply evidence: the appellant was merely responding to the Crown’s case. I have explained above why, in my view, it was open to the trial judge to take a contrary view, and the trial judge’s view must be accorded considerable deference. He was at the trial from the beginning to the end. He saw how the case unfolded and how the defence strategy played out.
[79] Second, the appellant submits that, in any event, the reply evidence simply confirmed the appellant’s belief that he was the target of a biased investigation. There was no question that some parts of the reply evidence did confirm the appellant’s view of the investigation. But, it is difficult to see how admission of that evidence could prejudice the appellant since it assisted the appellant’s case by making his claim of a biased investigation more credible. Nevertheless, the appellant was not entitled to present a distorted picture of the investigation. For example, if the appellant wanted to allege that Viggers was charged with perjury because she would not falsely implicate the appellant, the prosecution was entitled to provide their explanation as to why Viggers was charged with perjury.
[80] In my view, this case is similar to Van. In that case, although the trial judge gave no limiting instruction respecting the investigative narrative, a majority of the Supreme Court of Canada found that the accused was not prejudiced. As the court said at para. 39:
Second, it must be conceded that Det. Sgt. Nealon’s statement of his opinion of the respondent’s guilt was unwarranted and clearly foreclosed by the jurisprudence, due to the danger of the jury uncritically accepting the witness’s opinion without drawing their own conclusions about the evidence (e.g. R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 49). However, the expression of this opinion in the absence of a limiting instruction likely had an insignificant impact on the verdict in the context of Det. Sgt. Nealon’s testimony and the trial as a whole. Detective Sergeant Nealon was relating to the jury the reasons for which he and his partner changed the focus of their investigation from known loan-shark enforcers to Mr. Van. In so doing, it would be natural for him to suggest that he believed he was pursuing the appropriate leads by investigating Mr. Van. It would come as no surprise to a jury that a police officer will investigate the person that he or she thinks is most likely to be guilty. Furthermore, the trial judge had instructed the jury at numerous points in his charge that it was their opinion of the evidence, and only theirs, that mattered. I trust that they would have understood their role as primary fact finders at trial. [Emphasis added.]
(ii) Reply evidence going to investigative steps that could have been taken
to confirm the alibi
[81] Skubic also testified in reply to steps he might have taken if the appellant had disclosed his alibi earlier. These included contacting taxi companies to see if they had a record of the appellant as he was travelling from The Duke of York to Cheers and then from Cheers back to the Duke of York, and contacting cell phone companies to see if they had records of the appellant’s calls to Dookie. This evidence was potentially relevant for two reasons. It would help meet the appellant’s claim that he did not reveal his alibi because the police would not honestly investigate it, and it would lay a foundation for a direction from the trial judge that the jury could draw an adverse inference from the appellant’s failure to provide his alibi at an earlier occasion. This evidence was fleshed out in greater detail in Det. Sgt. Newton’s evidence. In the end, it became clear that by the time the appellant should have revealed his alibi, the evidence, such as records from the taxi companies, no longer existed. Thus, the trial judge ruled that the Crown was not entitled to an adverse inference direction.
[82] In my view, this aspect of the reply evidence did not prejudice the appellant. As I have said earlier, while it is not entirely clear, it does appear that the procedure agreed to by the appellant was for evidence of the investigation of the alibi to be led during reply. The trial judge would then decide whether an adverse inference instruction was warranted. Defence counsel told the trial judge that he had “a certain opinion of [the proposed reply evidence related to the late alibi] based on the summary [he had been given by Crown counsel]”. He then went on to say: “But I guess that’s something we can deal with.”
[83] In the end, the trial judge decided not to give the instruction. Rather, he limited his instructions to explaining to the jury what evidence they could rely upon to draw the inference that the appellant attempted to create a false alibi, and what inference the jury could draw from such attempts. He made no mention of the reply evidence concerning possible investigative steps to confirm or disprove the alibi. Defence counsel did not ask for any special instruction, probably because the jury would understand from the cross-examination of Det. Sgt. Newton, that the appellant was not obliged to disclose his alibi until well after any useful steps could be taken. Given that defence counsel agreed to the procedure adopted and that he did not object to the charge about this evidence, I am satisfied that its admission did not unfairly prejudice the appellant.
[84] In related submissions, the appellant argues that the trial judge erred in his instructions with respect to the false alibi. In particular, the appellant contends that the trial judge erred in instructing the jury that the appellant’s testimony in court as to his alibi could be used as evidence of his guilt. This submission is not based on the trial judge’s legal instructions about the false alibi, but on Crown counsel’s jury address and that part of the charge in which the trial judge set out the position of the Crown. In his jury address, after a detailed review of the wiretap conversations relied upon by the prosecution to show that the appellant was creating a false alibi that he was at the Duke of York at the time of the shooting, Crown counsel said this:
It’s all made up for this trial in an attempt to fit it in with what the Crown evidence has been. That alibi is just as false as the very first alibi about being at the Duke all night. Both of his alibis have always been false. Why do people come up with false alibis? There is only one reason, because they are guilty. [Emphasis added.]
[85] And in the charge the jury, the trial judge, in reviewing the Crown’s position, made this reference to the false alibi provided at the trial:
The most incriminating aspect of Danny Jackson’s post offence conduct was that he was creating or orchestrating a false alibi that he was at The Duke all night. He never admitted to being in Cheers in any of the calls. At this trial, Danny Jackson has concocted a new alibi that he has revealed for the first time, that he was on his way back to The Duke in a taxi at the relevant time. Both alibis are false. [Emphasis added.]
[86] In his own explanation in the charge to the jury of the relevancy of the false alibi, the trial judge referenced only the conversations in the wiretaps as evidence on which the jury could find an attempt by the appellant to “orchestrate a false or misleading alibi”.
[87] In my view, for the following reasons, the appellant was not prejudiced by the jury address and the trial judge’s reference to Crown counsel’s theory concerning the false alibi.
[88] In R. v. O’Connor (2003), 62 O.R. (3d) 263 (C.A.), at para. 22, this court explained that mere disbelief of an alibi cannot be used as proof of guilt; there must be independent evidence of concoction before an adverse inference against the accused could be drawn. The court explained, at para. 23, that the circumstances or manner of the accused’s testimony could not constitute such independent evidence.
[89] There was no dispute that the alibi as the appellant revealed it in the wiretapped conversations, that he was at the Duke of York the entire night, was false. The appellant conceded in his testimony that he was not at the Duke of York at the time of the shooting, contrary to what he said in the wiretapped conversations. Whether an inference of guilt could be drawn from this false alibi depended upon what the jury thought of the appellant’s explanation. As I have said earlier, that explanation, in short, was that the appellant did not trust the police and believed that if he revealed his true alibi, the police would not fairly investigate and might even fabricate evidence to undermine the alibi.
[90] The other potentially false alibi was the one given in court; that the appellant was in a taxi having left Cheers minutes before the shooting. The appellant submits that there is no extrinsic evidence that this alibi was false, but argues that the use of the word “concocted” in the trial judge’s review of the Crown’s position would lead the jury to believe that they could infer guilt simply from disbelief of the alibi.
[91] There is no question that one way of reading Crown counsel’s jury address was that Crown counsel invited the jury to use the appellant’s testimony that he was in the taxi as positive evidence of guilt. I refer again to the last three sentences set out above: “Both of his alibis have always been false. Why do people come up with false alibis? There is only one reason, because they are guilty.” I would not, however, give effect to this submission for these reasons.
[92] Crown counsel’s jury address is admittedly problematic. But, in my view, this single improper reference to “both alibis” was not so prejudicial as to require a new trial. First, when instructing the jury about post-offence conduct, the trial judge only referred to the false Duke of York alibi referred to in the wiretapped conversations.
[93] Second, there is no reason to think that the use of the single word, “concocted”, in the trial judge’s review of the Crown position would lead the jury to believe that as a matter of law simple disbelief of the alibi could be positive evidence of guilt. Throughout the trial, the focus was on the false alibi as revealed in the wiretapped conversations. In particular, the focus was on the appellant’s attempts to mislead the police, who he believed were monitoring the conversations and his attempts to recruit Lynzee Freeman to assist in fabricating evidence to bolster the false Duke of York alibi.
[94] Finally, most of Crown counsel’s jury address on the alibi was proper. He was entitled to argue to the jury that the first alibi, the Duke of York alibi, was fabricated and that the appellant’s attempts to fabricate it could be used as circumstantial evidence of guilt. He was also entitled to argue that the trial alibi was false, that there was no extrinsic evidence to support it, that it was a recent fabrication designed to meet the overwhelming evidence that the appellant was at Cheers around the time of the shooting, and that it should be rejected. The fact that Crown counsel may have improperly invited the jury to use rejection of the trial alibi as additional evidence of guilt was not sufficiently prejudicial as to require a new trial, especially given the overwhelming evidence that the first alibi was concocted.
[95] The appellant submits that Crown counsel’s cross-examination of him infringed his right to silence by suggesting to the jury that an innocent person would have proclaimed his innocence and would have preserved evidence supporting his alibi.
[96] In cross-examination about a conversation with Lynzee Freeman about the police press conference on the anniversary of the shooting when the reward was offered, the appellant was asked why, if he were really innocent, he would be worried about a reward. Would he not be pleased that police were offering a reward? The appellant testified that he was not worried about the reward; he was worried about Charity MacGillivray, Jodie Rideout and others who the police hoped would implicate him as the shooter. Crown counsel then asked:
Q. Right. And again, again I am going to suggest you were caught off guard is because, I am going to suggest to you, knowing that, if you were innocent, your first reaction would be to start proclaiming your innocence. Right?
A. I don’t agree with you.
[97] Crown counsel returned to this theme in cross-examining the appellant about his failure to disclose his alibi:
Q. So, Mr. Jackson, you knew that you were not in Cheers at the time of the shooting. Correct?
A. Yes.
Q. Okay. And you chose to say nothing to the police about that fact. Correct?
A. I chose to say nothing to them? I, I didn’t wanna say anything to the police about anything.
Q. Okay. And you knew basically as soon as you believed you were a suspect that you could clear your name, but you chose not to speak to the police?
A. I chose not to speak to the police. My lawyer had informed me that I’m on charges, so I should, I should, if the police wanna talk to me, they could talk to, to him for me.
Q. Okay. I am talking about as soon as you learned that you were a suspect, which was basically the same day of the murder. Right?
A. If, if I would tell the police what?
Q. Evidence or witnesses that could prove your innocence.
A. I, I, I don’t wanna talk to the police period.
[Emphasis added.]
[98] Crown counsel also pressed the appellant in cross-examination that it must have been important to him to remember where he was at the time of the shooting. It was also suggested that he could have “started finding out about the taxi”.
[99] The trial judge explicitly instructed the jury that the appellant had a right to remain silent and was not required to provide information to the police. However, the trial judge pointed out that when the appellant attempted to counsel people not to speak to the police and to withhold information, the jury could take this post-offence conduct into account. The trial judge’s direction on the right to silence was as follows:
So the first category [of post-offence conduct evidence]: The evidence of efforts by Mr. Jackson to keep information from the police. Now, I want to make one thing clear to you. When I speak of evidence of efforts to keep information from the police, I am not speaking of the fact that Mr. Jackson did not volunteer information to the police. Mr. Jackson was a suspect throughout the period of the interceptions. He had the right to silence. He had no obligation to speak to the police and so you cannot use his failure to provide information to the police against him. So then what am I talking about? I am talking about his efforts to keep other people from revealing information about him or about the Cheers shooting from the police, either while the people were talking to him, since he strongly suspected that the police were intercepting him, or later, when the police attempted to interview these people. [Emphasis added.]
[100] The trial judge returned to the issue of the right to silence when reviewing the position of the Crown:
The secrecy of Lynzee Freeman, the guarded conversation between her and Jackson and most importantly, Danny Jackson’s reaction to the press conference and news release were totally inconsistent with the behaviour of someone who was innocent but totally consistent with him having a great deal to hide, because he is guilty. For example, he never speaks of the reward assisting the police to get information about anyone else. He never proclaims his innocence, but, on the other hand, tells Lynzee Freeman to throw away the newspaper article about the reward and ends the call by telling her to “tell everyone stop the talking, man”.
The post offence conduct in the wiretap phone calls is very indicative of Danny Jackson’s guilt for the murder. Mr. Jackson’s discussion about the Cheers Tavern murder in heavy code, his response in reaction to developments in the investigation of the Cheers Tavern murder, and his instruction and at times orders to his friends and family as to how they should respond to the investigation are completely inconsistent with the actions of an innocent man, but rather totally consistent with someone who is attempting to hide his guilt. [Emphasis added.]
[101] The appellant submits that Crown counsel’s cross-examination was an improper attack on the appellant’s right to silence. He submits that the trial judge should have expressly instructed the jury to disregard the cross-examination, and that the trial judge’s instructions were not sufficient to remove the prejudice caused by the cross-examination.
[102] I do not accept this submission. In considering the adequacy of the trial judge’s response to the impugned cross-examination, that cross-examination must be put in context. That context was unusual. The appellant testified that he believed the police were listening to his conversations. It was open to the jury to infer from these conversations that the appellant was attempting to take advantage of the fact that the police were monitoring his conversations by devising a false alibi. In other words, he was talking to the police through the intercepted communications, and attempting to mislead the police into believing that he was at the Duke of York at the time of the shooting. In that context, the appellant’s position was somewhat akin to an accused who arguably gives up his right to silence by talking to the police but failing to mention what becomes an important point of his defence, as suggested in R. v. Paris (2001), 150 C.C.C. (3d) 162 (Ont. C.A.) at para. 41.
[103] The appellant’s situation was different from that of the accused in either R. v. Parrington (1985), 20 C.C.C. (3d) 184 (Ont. C.A.), or R. v. Chambers, [1990] 2 S.C.R. 1293. Those accused had been arrested and advised of their right to silence. Nevertheless they were cross-examined at trial on the fact that they failed to disclose their defence. Here, the appellant selectively relied upon his right to silence. I agree that the appellant was not required to go to the police, disclose his defence, and proclaim his innocence. He had a right to remain silent. To the extent that Crown counsel’s cross-examination suggested otherwise, it was improper and it would be improper for the jury to use the appellant’s failure to speak to the police against him. But, it was not improper to cross-examine the appellant on his attempt to concoct an alibi through the wiretaps when he was aware that the police were listening.
[104] In that context, it is my view that the trial judge’s directions were sufficient. The trial judge drew a distinction between exercising the right to silence and fabricating evidence. Given the unusual context, in my view, this case is more like Paris than either Chambers or Parrington. In Paris, the court held as follows, at para. 45:
Every non-direction does not, however, amount to reversible error. The Trial Judge told the jury that as a matter of law, Paris was not obliged to say anything. Paris had testified that he did not say anything to the authorities because his lawyer told him not to say anything. In my view, the jury would reasonably take from the Trial Judge's instructions, and Paris' answers to Crown counsel's questions, that Paris followed his lawyer's advice and that the advice was proper advice in the eyes of the law. I do not think that a jury would draw any adverse inference against Paris for following perfectly proper advice given to him by his lawyer. I am satisfied that the Trial Judge's instructions adequately protected against the potential miscarriage of justice occasioned by Crown counsel's improper questions. [Emphasis added.]
[105] In this case, too, there was a clear statement of the appellant’s right to silence. As in Paris, the appellant had referred to his lawyer’s advice in answering Crown counsel’s questions. No objection was taken to this aspect of the charge to the jury and counsel did not seek a specific direction that the jury disregard the impugned questions. Crown counsel ought not to have attacked the appellant’s right to remain silent, but neither those questions nor the non-direction resulted in a substantial wrong or miscarriage of justice. I would not give effect to this ground of appeal.
[106] It will be recalled that the Crown relied upon a conversation with October Newton in which the conversation turned to talking about a gun, and the appellant said “the other one’s fishin. I ain’t a fool.” The Crown’s theory was that the appellant was talking about the gun used at the Cheers shooting. The defence’s position was that the appellant was talking about a gun used by Daryl McCann, and that Newton should not be worried that the gun she had was the one that McCann had used in the commission of a crime. In cross-examination, Crown counsel pressed the appellant on why Newton should be assured. The appellant then gave this answer:
I’m basing it [assuring Newton] on the fact that he, he had, he got arrested for firing a certain gun, and I’m trying to assure her, you know.
[107] When asked when McCann was arrested, the appellant said he was not really sure but thought it was sometime around 2002 or 2003. In cross-examination, Crown counsel put to the appellant that McCann was convicted on November 8, 2004 of careless storage of a firearm and received a suspended sentence after taking into account 30 days of “dead time”. In other words, the McCann incident took place after the wiretapped conversation, which occurred on June 30, 2004. The appellant answered that he did not know when or for what McCann was convicted, only:
I basically know that, that basically the type of gun that he was used or whatnot that she, he never sold her that type of gun. That’s all. That’s why I gave her assurance.
[108] After a break, and in the absence of the jury, Crown counsel informed the court that he had found the police synopsis relating to the November 8 conviction and that it related to an incident on August 19, 2003 in which McCann did indeed discharge a firearm. Originally, Crown counsel wanted to correct any mistaken impression that might have been left as to what McCann had done and, particularly, the timing. Defence counsel wanted to go further and have the version of events as disclosed in the synopsis put before the jury. The trial judge pointed out that this would be hearsay. Defence counsel was still concerned that because of the cross-examination, the jury would be left with a mistaken impression as to the significance of the McCann incident. The trial judge quite properly pointed out that the appellant had not acknowledged the truth of any of Crown counsel’s questions about what McCann had done or been convicted of. In the end, defence counsel agreed with the trial judge’s approach, which was to simply tell the jury that propositions put in questions were not evidence, if not accepted by the witness:
THE COURT: So, I don’t know. That’s why I say we’re in some kind of, I feel we are in the twilight zone. We are talking about stuff that’s not evidence before the jury. And correcting mis-statements about things that haven’t been proved, my notion is that that’s just not proved. Nothing is proved about this other offence. Frankly, including, and it sort of troubles me about this correction, and I, that’s why I asked you if you wanted the correction because the correction is in the way of saying, this is the true facts, when, in fact, I don’t think there are any true facts about this conviction, that are before the jury. At the moment.
[Defence counsel]: Your Honour, I – and I think now that you’ve said it, that makes a lot of sense.
THE COURT: So, we could leave it as it is?
[Crown counsel]: I agree.
THE COURT: And just move on. And then when I charge the jury, I will tell them, remind them as I always do, that as I said in the outset, questions aren’t evidence, only answers and I could use this as an example, and say, you will recall that the Crown asked questions about what Mr. McCann did and made suggestions to the witness; the witness didn’t know that, and it’s not evidence.
[Defence counsel]: All right. I am content with that, Your Honour.
[109] As promised, the trial judge gave the agreed upon direction immediately after the jury returned, and gave a similar direction in the charge to the jury.
[110] Prior to Det. Sgt. Skubic being called, defence counsel sought a ruling from the trial judge that he could lead through Skubic the information showing what McCann was charged with in August 2003, in order to clear up some of the uncertainty arising from the earlier cross-examination of the appellant. The trial judge refused to permit defence counsel to do so, holding that production of the information would not prove what McCann actually did.
[111] In my view, the trial judge made no legal error. The trial judge was correct that there was no admissible evidence as to what McCann did in August 2003. His direction to the jury during the appellant’s cross-examination and in the charge to the jury was correct.
[112] That said, I agree that Crown counsel’s questions could have left a false impression as to the date of McCann’s charge. However, the appellant has not shown that any miscarriage of justice occurred. Defence counsel expressly agreed with the approach taken by the trial judge. There is no reason to second-guess his decision that the best solution was the direction to the jury as proposed by the trial judge.
[113] As to the attempt to file the information through Det. Sgt. Skubic, the appellant was not entitled to put before the jury what was nothing more than hearsay. It must also be said that this issue is far removed from the real question in dispute, which was whether the appellant, in the wiretapped conversation, was referring to the murder weapon or some other firearm that may have originated with McCann. What use McCann actually made of the firearm, before it may or may not have been given to October Newton, was of little importance.
[114] The appellant submits that what McCann was charged with was relevant to Newton’s state of mind. However, October Newton did not testify and her state of mind was of only minor importance to the case. The appellant’s state of mind was highly relevant, but all the admissible evidence on his state of mind as it related to the gun was before the jury. If the appellant wanted to lead further evidence to support his state of mind he could have done so by calling McCann. He did not do so and it was not open to him to get McCann’s evidence in indirectly and through hearsay sources.
[115] The appellant submits that the trial judge erred in failing to direct the jury that a statement made by an unidentified patron at Cheers and reported by Deborah Robinson, a waitress at Cheers, was admissible for its truth. Right after the shots were fired, Robinson heard a female customer yell “grab the guy in the white shirt”. The defence relied upon this evidence as proof that the shooter wore a white shirt; the appellant was wearing a black leather jacket that night, according to Lynzee Freeman’s mother.
[116] In his jury address, Crown counsel argued that the jury should reject the defence theory that Robinson was referring to the shooter because it was speculation and, in any event, hearsay. In his charge to the jury, in the excerpt set out above dealing with hearsay evidence, the trial judge did not specifically refer to Robinson’s evidence, but did tell the jury that second-hand descriptions of the shooter were not admissible for their truth. The appellant submits that this particular comment, testified to by Robinson, was admissible for its truth.
[117] The trial judge was never asked to rule on the admissibility of this evidence as an exception to the hearsay rule. Even assuming the evidence was available for its truth, no substantial wrong or miscarriage of justice was occasioned by its treatment by the trial judge in the charge to the jury. There was simply no evidence as to whether the unknown patron was referring to the shooter or had an opportunity to observe the shooter.
[118] Finally, when reviewing the evidence of the people at Cheers, the trial judge specifically referred to Deborah Robinson’s evidence, including her statement about grabbing the guy in the white shirt. The trial judge did not suggest the evidence was not available for its truth. Defence counsel did not object to the charge on this basis.
[119] I would not give effect to this ground of appeal.
Discreditable conduct
[120] Mr. Breen made a very brief oral submission about admission of evidence of discreditable conduct of the appellant. The trial judge gave an extensive and entirely proper direction to the jury about the limited use of evidence of what he referred to as “an unflattering description of Mr. Jackson’s lifestyle”. I would not give effect to this ground of appeal.
[121] Accordingly, I would dismiss the appeal.
Released: MR
“M. Rosenberg J.A.”
“I agree Gloria Epstein J.A.”
“I agree P. Lauwers J.A.”