



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Precup, 2013 ONCA 411

DATE: 20130619

DOCKET: C54006

Cronk, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Vlad Nicolae Precup

Appellant

Michael A. Crystal, for the appellant

Greg Skerkowski, for the respondent

Heard: February 14, 2013

On appeal from the convictions entered by Justice Roydon
    J. Kealey of the Superior Court of Justice, sitting with a jury, on May 20,
    2011.

Cronk J.A.:

I.        Introduction

[1]

Following a trial by judge and jury, the appellant was convicted of
    dangerous driving causing death and failing to remain at the scene of an
    accident that resulted in death.  He was sentenced to two years less one day imprisonment,
    plus three years probation.  A three-year driving prohibition was also
    imposed.  The appellant appeals from his convictions.

[2]

Although the appellant raised various grounds of appeal in his factum,
    during oral argument he narrowed the focus of his appeal to one main issue 
    whether the trial judge erred in his treatment of bad character evidence concerning
    the appellant.

[3]

The evidence in question emerged on cross-examination at trial of a
    defence psychiatrist who offered his opinion concerning the appellants mental
    illness and its effect on the appellants state of mind and conduct at the time
    of the collision.  During cross-examination of this witness, the Crown elicited
    evidence, based on information in the appellants medical records, tending to
    show that the appellant has a propensity for violence.

[4]

The appellant asserts that the trial judge erred in his treatment of the
    witnesss evidence regarding this information: (1) by failing to instruct the
    jury on the limited permissible use of evidence of bad character, including by
    failing to tell the jury that the evidence at issue was based on hearsay, which
    could not be relied upon for the truth of its contents; and (2) by permitting
    Crown counsel, without a remedial instruction, to invite the jury to engage in prohibited
    propensity reasoning.

[5]

For the reasons that follow, I conclude that the trial judge did err in
    the ways urged by the appellant.  In my view, the trial judges non-directions
    are fatal to the jurys verdicts.  The Crown does not suggest that the curative
    proviso of s. 686(1)(b)(iii) of the
Criminal Code
, R.S.C. 1985,
    c. C-46 can be applied to uphold the appellants convictions.  Accordingly, a
    new trial is required.

II.       Factual Background

(1)

The Incident

[6]

The charges against the appellant arose from a late-night driving
    incident in the City of Ottawa.  While the appellant was stopped in his sports
    car (a Mazda RX-8) at a red light, an apparently intoxicated pedestrian,
    Mitchell Anderson, wandered in front of the vehicle.  Mr. Anderson made
    gestures at the car, seemingly in admiration of the vehicle.  It appears that
    he stood in front of the car and either touched the hood with his hand or
    possibly kissed his hand and then touched the hood.  He did not approach the
    appellant or the appellants girlfriend, who was seated in the front passenger
    seat.  Nor did he directly threaten the appellant or his girlfriend in any
    way.

[7]

It is undisputed that when the light changed to green, the appellant
    drove away from the intersection at a high rate of speed.  Several witnesses to
    the collision testified at trial.  They said that as the appellant left the
    scene, they saw his vehicle fishtail, heard the sound of screeching tires, smelled
    burning rubber, and observed that the appellants car appeared to be out of
    control.

[8]

Mr. Anderson was struck by the appellants car as it proceeded through
    the intersection.  On impact, Mr. Anderson was thrown into the air and fell to
    the ground, striking his head.  Tragically, he died shortly thereafter from his
    resulting head injuries.  The appellant learned of Mr. Andersons death some
    days later.

[9]

The police interviewed the appellant about the collision because he was
    one of only a limited number of people in Ontario who owned a vehicle similar
    to the car that struck Mr. Anderson.  In his initial police statement, the
    appellant denied any involvement in the collision.  The appellant repeated this
    denial in a second police statement given several months later.

[10]

However,
    about five months after the collision, the appellant gave a third statement to
    the police.  In this statement, he acknowledged for the first time that he was
    the driver of the car on the night in question and that his girlfriend was
    present at the time.  He acknowledged seeing Mr. Anderson and maintained that
    he was worried by his behaviour because [h]e didnt seem right.  He said that
    Mr. Anderson moved on after a few moments, out of his sight.  Only then did he move
    his car forward, through the intersection, after the light turned green.

[11]

In
    a statement given to the police at about the same time, the appellants
    girlfriend (now his wife) confirmed the appellants version of events.  In
    contrast, at least one eyewitness to the collision testified at trial that Mr.
    Anderson was still in front of the appellants car when the appellant drove
    away from the intersection on a green light.

(2)

The Evidence of Mental Illness and Bad Character

[12]

Neither
    the appellant nor his girlfriend testified at trial.  The defence called Dr.
    Reghuvaran Kunjukrishnan, a psychiatrist at the Royal Ottawa Medical Centre,
    who testified concerning the appellants mental illness and the effect of that illness
    on the appellants state of mind and conduct during the collision.  Prior to
    trial, Dr. Kunjukrishnan had conducted a psychiatric assessment of the
    appellant, interviewed the appellants wife, and reviewed the appellants
    previous medical records from the Royal Ottawa Medical Centre.

[13]

During
    his examination-in-chief, Dr. Kunjukrishnan offered the opinion that the
    appellant has suffered from chronic, paranoid schizophrenia since 1996, for
    which he has received medical treatment over the years, including
    anti-psychotic medications.  Dr. Kunjukrishnan said that although the positive
    symptoms of the appellants mental illness were in partial remission, the
    negative symptoms of the illness, including social anxiety, hyper-vigilance and
    paranoia, persist.  According to Dr. Kunjukrishnan, these negative symptoms may
    have affected the appellants ability to appreciate the risk caused by his
    driving on the night in question, and accounted for the manner of his departure
    from the intersection.

[14]

Dr.
    Kunjukrishnan also testified that the appellant told him that: (1) Mr. Anderson
    was acting in a bizarre and threatening manner; (2) he feared that Mr. Anderson
    might attack him or his girlfriend; (3) he drove away from the scene rapidly in
    order to flee from the threat posed by Mr. Anderson; and (4) he did not realize
    at the time that Mr. Anderson had been struck by his car.

[15]

Dr.
    Kunjukrishnan indicated that he had considered anger management issues as a
    possible diagnosis for the appellant, based on reports in the appellants
    medical records of past incidents of friction, arguments and some minor
    physical altercations between the appellant and his wife.  He attributed these
    incidents to the appellants underlying schizophrenic illness rather than to
    any independent anger management problems.

[16]

On
    cross-examination, the Crown challenged the extent of Dr. Kunjukrishnans knowledge
    of the appellants psychiatric condition and medical history.  The Crown also
    attacked his claims that the appellant had no independent anger management
    problem, that schizophrenia was his prevailing psychiatric condition on the
    night in question, and that his prior violent behaviour towards his wife was
    only minor in nature.

[17]

In
    so doing, the Crown elicited information from Dr. Kunjukrishnan, based on entries
    in the appellants medical records, of various prior physical altercations
    between the appellant and a co-worker, strangers on a bus, the appellants
    three-year old nephew, a convenience store owner, and the appellants wife (the
    Prior Incidents).

[18]

Crown
    counsel suggested to Dr. Kunjukrishnan that some of these Prior Incidents,
    which the Crown described as aggressive outbursts, indicated that the appellant:
    (1) had reacted inappropriately, with anger on some occasions; (2) is
    volatile and has a hair trigger, in terms of [his] temper; (3) has had
    consistent anger management issues, notwithstanding other psychotic
    disorders, for 15 years; (4) has exhibited signs of serious anger issues; and
    (5) had engaged in random acts of aggression towards strangers  with no
    provocation.  Dr. Kunjukrishnan agreed with each of these suggestions.

(3)

Defence Pre-Charge Objection

[19]

After
    the completion of Dr. Kunjukrishnans testimony, the defence closed its case. 
    The Crown offered no reply evidence and the jury was excused for lunch prior to
    the closing submissions of counsel.  The trial judge then indicated that he
    intended to provide counsel with a draft of his jury charge in the areas that
    may be of concern to [them], including those parts of the charge relating to
    Dr. Kunjukrishnans evidence.

[20]

A
    short time later, after the trial judge had provided the draft charge to
    counsel, defence counsel voiced concern regarding the instructions to be
    provided to the jury pertaining to the Prior Incidents.  The following exchange
    occurred:

MR. GIANCATERINO: Sure.  Can I just ask Your Honour one
    question.  I mean weve heard a little bit about it this afternoon, I dont
    think it became an issue until this afternoon, but the  I guess that what I
    would classify as bad character evidence of Doctor  Vlad Precup 
my
    friend had read out some passages to Doctor Kunjukrishnan detailing some
    violence, detailing some other acts
, Im not sure whether or not we
    anticipated that coming out in terms of this draft,
but I think there has
    to be a specific type of warning or instruction to the jury of the use that
    they can make of that
.

THE COURT:
Thats not evidence
.  He was really out to
    cross-examine  this is part of the record  the medical records that he got
    late.

MR. GIANCATERINO: Right.

THE COURT:
Hes reading to the doctor what was in the
    medical records
, some of  I mean  and then he said he didnt  he read
    some of it, he didnt read all of it,
but I mean it was just to alert him
    to another side to Mr. Precup
.

MR. GIANCATERINO:
Well, my concern is that the jury might
    make bad use  like they may misuse that evidence
.

THE COURT:
Well, I told  and Ill tell the jury again and
    I may specifically identify  I mean those are part of the medical records that
    were read to  it also is not evidence, its just  its to suggest to Doctor [Kunjukrishnan]

that maybe he didnt know everything about this man that he was testifying
    about
.

MR. GIANCATERINO:
Thats fine
. 
    [Emphasis added.]

(4)

Crown Counsels Closing Address

[21]

During
    his closing address to the jury, Crown counsel at trial (not counsel on appeal)
    urged the jury to conclude that the appellants conduct at the time of the
    collision was unrelated to his schizophrenia, which was being treated by
    medication under the supervision of health care professionals.  He told the
    jury that the appellants anger management problem has nothing to do with his
    mental illness.  It has everything to do with his impulsivity and his volatile
    nature and his hair trigger temper.

[22]

Later
    in his address, Crown counsel suggested that Dr. Kunjukrishnans evidence
    established that there was no doubt that the appellant has anger management
    issues apart from his schizophrenia.  Counsel told the jury:

But you all heard how the anger management issues remain.
[Dr.
    Kunjukrishnan] even said Mr. Precup is volatile.  Well, we know that.  We know
    Mr. Precup is volatile.  He has a hair trigger.  It doesnt take much for him
    to hurt someone
.  [Emphasis added.]

[23]

Elsewhere
    in his closing, Crown counsel invited the jury to consider the appellants
    conduct in this fashion:

Again, ask yourselves about his behaviour after the incident as
    well as during the incident when youre determining his guilt.
Ask
    yourselves
about his lack of symptoms;

about

his professionally
    monitored treatment;
and about his separate anger management issue.  That
    will surely lead you down a path to finding Mr. Precup guilty beyond any
    reasonable doubt for dangerously driving and causing the death of Mr. Anderson
    as well as fleeing the scene
.  [Emphasis added.]

[24]

Crown
    counsel returned to this theme at the end of his closing address.  He concluded
    with these remarks:

A man obsessed by his vehicle, a man who treats it as an
    extension of himself, felt his integrity violated when Mitch Anderson merely
    touched the hood of his car.
His reaction wasnt based on schizophrenia. 
    His reaction was of a man angered by the boldness of this stranger touching his
    car.  His inability to manage his anger is a function not of his disease, but
    of his own personality
.

He employs physical violence to sort out his issues
. 
    And when you apply your common sense to the evidence youve heard, you will
    know beyond a reasonable doubt, that Vlad Precup is guilty of both of these
    offences.  [Emphasis added.]

III.      Issues

[25]

As
    advanced during oral argument, there is one main issue on appeal.  The
    appellant argues that the trial judge erred in his treatment of the information
    concerning the Prior Incidents and Dr. Kunjukrishnans related evidence: (1) by
    failing to properly instruct the jury on the limited permissible use of that
    evidence, including failing to tell the jury that the information regarding the
    Prior Incidents on which the evidence was based was hearsay, which could not be
    relied upon by the jury for the truth of its contents; and (2) by permitting
    Crown counsel, without a remedial instruction, to invite the jury to engage in
    prohibited propensity reasoning.

IV.     Analysis

[26]

The
    appellant concedes that once the defence led expert evidence that his
    schizophrenia might have affected his appreciation of the risk of his driving
    and accounted for the manner of his driving at the time of the incident, it was
    open to the Crown to challenge Dr. Kunjukrishnans diagnosis of schizophrenia and
    to explore the alternative diagnosis of anger management.

[27]

I
    agree.  The defence relied on Dr. Kunjukrishnans evidence to suggest that the
    appellant suffered from a psychiatric condition that cast doubt on his
    culpability for the offences charged.  Dr. Kunjukrishnans evidence thus put the
    appellants psychiatric condition on the night in question in play.

[28]

Dr.
    Kunjukrishnan identified a possible differential diagnosis of anger management
    issues for the appellant, grounded in his evaluation of the appellant and his
    review of the historical entries in the appellants medical records.  The
    entries concerning the Prior Incidents, which Dr. Kunjukrishnan had not
    reviewed prior to his testimony at trial, cast a different light on the nature and
    effect of the appellants medical condition from that advanced by Dr.
    Kunjukrishnan during his examination-in-chief.

[29]

In
    addition, Dr. Kunjukrishnans admitted failure to read the appellants entire
    medical record, including the entries concerning the Prior Incidents, was
    relevant to the creditworthiness of his opinion about the appellants mental
    illness and its effect on the appellants driving behaviour.

[30]

The
    Crowns cross-examination of Dr. Kunjukrishnan on the Prior Incidents was a
    concerted attempt to undermine the witnesss credibility and the reliability of
    his expert opinion.  The cross-examination, therefore, was unobjectionable.

[31]

However,
    the appellant argues that the trial judge erred by failing to instruct the jury
    that the facts from the appellants medical records concerning the Prior
    Incidents put to Dr. Kunjukrishnan on cross-examination were unproven hearsay
    and could not be relied upon by the jury as evidence.  The appellant submits
    that the prejudicial effect of this error was exacerbated by Crown counsels
    closing address, described above, which invited the jury to engage in
    prohibited propensity reasoning based on the Prior Incidents.

[32]

The
    Crown counters that the jury charge was adequate in the circumstances.  The
    charge was sufficient, the Crown submits, to alert the jury that the only permissible
    use it could make of Dr. Kunjukrishnans evidence concerning the Prior
    Incidents was to assess the weight to be attached to his opinion that the
    appellants schizophrenia might have affected the appellants state of mind and
    driving behaviour at the time of the collision.

[33]

The
    Crown next contends that Crown counsels closing address at trial was directed
    to the contention that Dr. Kunjukrishnans opinion should be accorded little
    weight.  Counsels impugned remarks, it is said, were designed to underscore
    that there was evidence of a possible alternative diagnosis  difficulties with
    anger management  that accounted for the appellants conduct on the night in
    question.

[34]

I
    conclude that the trial judges failure to provide a limiting instruction on the
    permissible use of Dr. Kunjukrishnans evidence regarding the Prior Incidents,
    coupled with the absence of a remedial instruction concerning the Crowns
    closing address, require a new trial.  I am not satisfied that the jury would
    have understood that the entries in the appellants medical records concerning
    the Prior Incidents, as discussed by Dr. Kunjukrishnan in his evidence, were
    unproven hearsay that could not be used for the truth of their contents or to
    reason from general character or disposition to guilt.  I say this for the
    following reasons.

(1)     Non-direction Regarding the Prior Incidents

[35]

I
    begin with two controlling principles.  First, the adequacy of the jury charge
    in this case must be assessed in the context of the function of a jury charge. 
    As Watt J.A. of this court put it in
R. v. J.S.
, 2012 ONCA 684, 296
    O.A.C. 184, at para. 35: Proper instructions leave the jury with a sufficient
    understanding of the facts as those facts relate to the issues the jury has to
    decide.  He added, at para. 36:

In the end, the jury must understand:

i.

the factual issues to be determined;

ii.

the legal principles applicable to the issues and the evidence adduced
    at trial;

iii.

the
    positions of the parties; and

iv.

the
    substantial parts of the evidence relevant to the positions of the parties on
    the issues to be decided.

[36]

Second,
    in the recent case of
R. v. Prokofiew
, 2012 SCC 49, [2012] 2 S.C.R.
    639, the Supreme Court again confirmed that when considering the adequacy of a
    jury charge, the charge must be considered in its entirety.

[37]

With
    these important principles in mind, I conclude that the jury charge in this
    case was deficient in two significant respects.  The charge failed to caution
    the jury against utilizing bad character evidence for propensity reasoning.  It
    also failed to identify the information in the appellants medical records
    about the Prior Incidents as hearsay, which could not be relied upon for the
    truth of its contents.

[38]

The
    trial judge recognized the need for a specific caution about the Prior Incidents. 
    During his pre-charge exchange with defence counsel, quoted above, the trial
    judge twice acknowledged, correctly, that the facts put to Dr. Kunjukrishnan
    concerning the Prior Incidents were not evidence.  He indicated that these
    facts were put to the witness to alert him to another side to Mr. Precup.  The
    trial judge went on to say that he would tell the jury that the relevant
    exchanges were to suggest to Doctor [Kunjukrishnan] that maybe he didnt know
    everything about the appellant.

[39]

On
    the basis of the trial judges comments, defence counsel replied, [t]hats
    fine.  In light of those comments, defence counsel no doubt would have assumed
    that a limiting instruction on the permissible use of the evidence concerning
    the Prior Incidents would form part of the jury charge.  Yet the charge
    contained no explicit instruction to the jury about the impropriety of using the
    information about the Prior Incidents as evidence or for the truth of the facts
    set out in the relevant entries in the appellants medical records.  The trial
    judge did not tell the jury that the facts concerning the Prior Incidents were
    hearsay or that they were put to Dr. Kunjukrishnan to bolster the Crowns
    attempts to undermine Dr. Kunjukrishnans opinion evidence by demonstrating
    that his review of the appellants medical records and his knowledge of the
    appellant were incomplete.

[40]

The
    Crown acknowledges that the evidence of the Prior Incidents was based on
    hearsay, that the relevant entries in the appellants medical records were not
    admissible for the truth of their contents and, accordingly, that they could be
    used by the jury only to assess the weight to be given to Dr. Kunjukrishnans
    opinion evidence.

[41]

That
    said, the Crown contends that the jury charge contained sufficient instructions
    regarding the impermissible use of hearsay evidence to offset the absence of a
    specific caution about the hearsay nature of the information concerning the
    Prior Incidents and the limited permissible use of evidence of bad character. 
    I disagree.

[42]

I
    note, first, that no mid-trial instruction was furnished to the jury concerning
    Dr. Kunjukrishnans evidence about the Prior Incidents or about the hearsay
    nature of the facts pertaining to the Prior Incidents contained in the appellants
    medical records.

[43]

In
    my view, this is a case where, once the Crowns approach to Dr. Kunjukrishnans
    cross-examination and Crown counsels highlighting of the Prior Incidents
    revealed itself, it would have been preferable for the trial judge to have provided
    a limiting mid-trial instruction to the jury at the time when the evidence was
    received.  See Hon. Mr. Justice David Watt,
Helping Jurors Understand
(Toronto:
    Thomson Canada Limited, 2007), at 141.  A mid-trial instruction would have
    alerted the jury to the proper use of the evidence concerning the Prior
    Incidents and of the information on which that evidence was based, about which
    the jury could then have been reminded later in the charge.  A limiting
    mid-trial instruction might also have alerted the Crown to be more circumspect
    in its closing jury address.

[44]

Although
    defence counsel did not request a mid-trial corrective instruction, he
    expressly requested the inclusion of a cautionary instruction in the charge
    itself.  As I read the transcript of the pre-charge discussions, defence
    counsel was assured that a limiting instruction would be provided.  Yet, as I
    have said, the jury charge contains no explicit reference to the jurys use of
    the evidence concerning the Prior Incidents or of the underlying hearsay
    information in the appellants medical records.

[45]

There
    is no doubt that the trial judge warned the jury generally that hearsay
    evidence must be approached with caution.  The jury charge contains this
    general instruction:

When you assess the opinion of an expert witness, you should
    consider whether the opinion is based on proven facts.  If for example, the
    expert opinion is based on hearsay evidence or on propositions that have not
    been provided, or on testimony which you do not accept, then you should attach
    less or perhaps no weight to the opinion.

Please know that the opinion of an expert is admissible in
    evidence even if it is based on secondary or hearsay evidence.  The secondary
    evidence is only admissible however, to show the information on which the
    experts opinion is based.  It is not evidence as to the truth of the second
    hand evidence, nor does it prove the existence of the facts on which the
    opinion is based.

[46]

While
    general jury instructions of this type are helpful, there must nonetheless be a
    real effort to tie the substantial parts of the evidence to the issues to be
    decided by the jury.  This occurred, for example, when the trial judge addressed
    certain of the appellants hearsay statements to Dr. Kunjukrishnan,
    specifically, his assertions that he had been assaulted on an unrelated past occasion
    while sitting in his car at a red light, and his claim that he had been fearful
    of Mr. Anderson on the night of the collision.  The trial judge told the jury:

In this case, what Mr. Precup told Dr. Kunjukrishnan is hearsay
    and cannot be considered by you in determining what happened in this case.  It
    can only be used in assessing the opinion of the doctor.  In particular, Mr.
    Precups hearsay statement describing some incident which allegedly happened a
    few years ago whenever [
sic
] he was allegedly attacked and assaulted
    while his vehicle was stopped at a red light, is clearly, hearsay.

The same is true of his claim that he was [concerned] that the
    victim was coming towards the passenger side window and he was concerned for his
    own safety and that of his girlfriend, Ms. Lou.

These

were

foundational

facts

used

by

Dr.
    Kunjukrishnan in forming his opinion.

[47]

The
    trial judge continued as follows:

Before any weight can be given to an experts opinion, facts
    upon which the opinion is based, must be found by you to exist.  The more the
    expert has relied upon facts not proved in evidence before you, for example,
    the hearsay statements to which I have just made reference, the less weight if
    any you may attribute to the opinion.

If you find there is no factual basis or a limited factual
    basis in the evidence to support the experts opinion, then you would consider
    attaching no weight or less weight respectively, to such an opinion.  It is for
    you to decide.

[48]

But
    the trial judge failed to provide a similar or other warning to the jury
    regarding Dr. Kunjukrishnans evidence about the Prior Incidents and the
    entries in the appellants medical records on which that evidence was based.  This
    omission, in my opinion, gives rise to two serious concerns.  First, the facts about
    the Prior Incidents were highly prejudicial to the appellant.  They strongly
    suggested that he has a propensity for aggressive and unprovoked, violent
    behaviour, as the Crown argued had been in play at the time of the collision.

[49]

As
    reflected in the trial judges promise to provide a cautionary instruction, the
    nature of the Prior Incidents called out for a clear warning to the jury as to
    what uses the evidence of bad character could and could not be put.  As the
    Supreme Court emphasized in
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R.
    908, at para. 141, propensity evidence is of a poisonous nature, requiring a
    high awareness of its potentially prejudicial effect.

[50]

However,
    the charge does not identify the Prior Incidents as hearsay or mention evidence
    of bad character in any way.  Nor does the charge contain any caution to the
    jury that it could not rely on the Prior Incidents for propensity reasoning. 
    The jury was not told that the facts contained in the appellants medical records
    concerning the Prior Incidents were admissible only for the limited purpose of
    attempting to undermine the extent of Dr. Kunjukrishnans knowledge of the
    appellant and, hence, his opinion about the nature and effect of the appellants
    mental illness, by illustrating that his opinion had been cast too narrowly, or
    was based on incomplete information.

[51]

Second,
    the instructions provided to the jury, quoted above, were directed at the facts
    relied upon by Dr. Kunjukrishnan to support his opinion of the appellants
    proper diagnosis  chronic schizophrenia with persisting negative symptoms 
    and his testimony that this mental illness may have affected the appellants
    state of mind and, hence, his criminal culpability for the collision.  In other
    words, the instructions provided by the trial judge were directed at hearsay or
    foundational facts relied on by Dr. Kunjukrishnan in forming his opinion.

[52]

The
    facts concerning the Prior Incidents were not relied on by Dr. Kunjukrishnan
    and formed no part of the foundation for his opinion.  They were merely
    unproven facts asserted by the Crown to undercut Dr. Kunjukrishnans opinion
    and the weight to be accorded to it by the jury.  Nowhere in the charge was the
    jury told that unproven facts
relied on by the Crown
to attack Dr.
    Kunjukrishnans opinion, like unproven facts relied on by Dr. Kunjukrishnan to
    form his opinion, also constituted hearsay that could not be treated as
    evidence.

[53]

In
    my view, in the absence of a limiting instruction and based on the charge as a
    whole, it cannot be said that the jury necessarily would have understood the
    limited permissible use of the information and evidence regarding the Prior
    Incidents.  To the contrary, absent such an instruction, there was a realistic
    concern, as expressed by defence counsel prior to the charge, that the jury
    might place evidential value on the Prior Incidents.

[54]

The
    Crown points out that defence counsel did not object on this basis, following
    the charge.  The Crown also submits that a specific instruction concerning the
    Prior Incidents could only have worked to the appellants disadvantage since an
    itemization of the Prior Incidents would have reminded the jury of the damaging
    nature of the entries in the appellants medical records regarding his apparent
    character and past violent behaviours.

[55]

While
    a relevant factor, defence counsels failure to renew his objection after the
    charge does not cure the trial judges non-direction.  It is well established
    that the failure to object to parts of a jury charge is not dispositive of a
    subsequent challenge to the propriety of the charge: see
e.g. R. v. Daley
,
    2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58;
R. v. Jacquard
, [1997]
    1 S.C.R. 314, at paras. 3738.

[56]

I
    also do not accept that an itemization of the Prior Incidents was appropriate
    or necessary in order to provide an adequate jury instruction concerning the
    limited permissible use of evidence of bad character, the hearsay nature of the
    information regarding the Prior Incidents, and the dangers of prohibited
    propensity reasoning.

[57]

The
    appropriate jury instruction was a simple warning that the Crown was in no
    better position than the defence when it came to the use of hearsay.  In this
    case, as with the hearsay relied on by Dr. Kunjukrishnan, the unproven facts in
    the appellants medical records concerning the Prior Incidents could not be
    relied upon by the jury for the truth of their contents.  Nor could the Prior
    Incidents be used by the jury to reason that the appellants suggested character
    or past conduct made his commission of the charged crimes more likely.  The
    absence of a limiting instruction in this regard effectively left the jury with
    no guidance on troubling evidence of bad character:
R. v. Philip
,
    2010 ABCA 79, 477 A.R. 380, at paras. 78.

(2)     Crown Counsels Closing Address to the Jury

[58]

In
    my opinion, the trial judges failure to provide a limiting instruction on the
    permissible use of the information and evidence relating to the Prior Incidents
    was exacerbated by the absence of a remedial instruction concerning Crown
    counsels closing address.

[59]

I
    have earlier set out in these reasons the salient parts of Crown counsels
    closing.  I agree with the appellants submission that the impugned comments by
    Crown counsel invited the jury to conclude that the appellant purposely ran Mr.
    Anderson down in an uncontrolled fit of anger or rage.  I also agree with the
    appellants contention that the effect of Crown counsels closing was to paint
    the appellant as a volatile and angry individual with a hair trigger for
    violence.  Although Crown counsel did not explicitly mention the Prior
    Incidents, it cannot have been lost on the jury that these suggested
    characteristics were related directly to Dr. Kunjukrishnans evidence
    concerning the Prior Incidents during cross-examination.

[60]

Two
    examples will suffice to make this point.  First, Crown counsel twice told the
    jury that the appellant has a volatile nature and a hair trigger.  Indeed,
    he went further, stating that, [
W]e know Mr. Precup is volatile
 and
    
It doesnt take much for him to hurt someone
 (emphasis added). 
    There was no admissible evidence of these facts.  These were assertions only, based
    on hearsay entries in the appellants medical records.  The fact that Dr.
    Kunjukrishnan agreed with these assertions did not convert the unproven facts
    of the Prior Incidents into affirmative, independent evidence.

[61]

Nonetheless,
    in my view, these facts were positioned by Crown counsel as if they had been
    affirmatively established in the evidence led at trial.  Recall again the
    claim, [W]e know Mr. Precup is volatile.  In my opinion, Crown counsel
    essentially invited the jury to use the Prior Incidents as evidence of the
    appellants character and disposition for violence and, hence, as indicative of
    his guilt.  This was improper.

[62]

Second,
    Crown counsel closed his jury address by asserting that the appellant, in
    addition to suffering from schizophrenia, had a separate anger management
    issue that was a function not of his disease, but of his own personality. 
    Counsel then said: [The appellant] employs physical violence to sort out his
    issues.

[63]

The
    Crowns theory that the appellant had independent anger management issues apart
    from his schizophrenia was put to Dr. Kunjukrishnan in cross-examination.  Dr.
    Kunjukrishnan acknowledged that he considered anger management to be a possible
    diagnosis for the appellant.  However, he did not accept that it was, in fact,
    an appropriate diagnosis, separate and apart from schizophrenia.  Similarly,
    while the medical charts contained references to historical anger management
    issues, they were not affirmatively established by Dr. Kunjukrishnans
    testimony as a separate  issue from schizophrenia.

[64]

Crown
    counsel, however, invited the jury to conclude that the appellant suffered from
    uncontrolled anger management issues, which, rather than schizophrenia,
    accounted for his conduct at the time of the collision.  Moreover, Crown
    counsels suggestion that the appellant employs physical violence to sort out
    his issues was directly grounded in the Prior Incidents.  The Prior Incidents
    were not evidence.  And there was no independent evidence of any pattern by the
    appellant of resolving his issues with physical violence.

[65]

Taken
    as a whole, Crown counsels impugned statements were tantamount to encouraging the
    jury to engage in impermissible propensity reasoning.  They cried out for an
    explicit, remedial instruction or, alternatively, a clear instruction on the
    limited use of Dr. Kunjukrishnans evidence about the Prior Incidents.  The
    absence of these instructions is fatal to the jurys verdicts, necessitating a
    new trial.

(3)      Other Issues

[66]

As
    I have said, during the appeal hearing, the appellant did not press the other
    grounds of appeal raised in his factum.  In any event, as I would allow the
    appeal for the reasons set out above, it is unnecessary to address the other
    grounds advanced by the appellant.

V.      Disposition

[67]

For
    the reasons given, I would allow the appeal, set aside the verdicts entered and
    direct a new trial.

Released:

JUN 19 2013                                    E.A.
    Cronk J.A.

EAC                                                I
    agree Gloria Epstein J.A.

I
    agree P. Lauwers J.A.


