



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Cliff,









2015 BCCA 15




Date: 20150114

Docket: CA039855

Between:

Regina

Respondent

And

Jamie Michael
Cliff

Appellant






Before:



The Honourable Madam Justice Newbury

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Tysoe




On appeal from:  An
order of the Supreme Court of British Columbia, dated
June 10, 2011 (
R. v. Cliff
, Vancouver Docket No. 25247).




Counsel for the Appellant:



J. Narwal





Counsel for the Respondent:



F.G. Tischler





Place and Date of Hearing:



Vancouver, British
  Columbia

December 12, 2014





Place and Date of Judgment:



Vancouver, British
  Columbia

January 14, 2015









Written Reasons by:





The Honourable Madam Justice Newbury





Concurred in by:





The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Tysoe








Summary:

Appellant was convicted of
second degree murder following a jury trial. Crown led evidence from a witness
in respect of whom trial judge issued a Vetrovec warning. Crown also cross-examined
the appellant on his post-offence conduct, which included giving police a false
name. Although there was evidence the appellant had been drinking, the trial
judge did not instruct the jury on intoxication after defence counsel agreed
such warning was unnecessary. Appellant argued on appeal that trial judge erred
in not instructing the jury on his right to silence, in failing to instruct the
jury that corroboration was not required with respect to the appellants own
testimony, and in not providing instructions on intoxication.

Held: appeal dismissed.
Appellants right to silence was not violated by the Crowns questioning, the
purpose of which was clearly to challenge his credibility rather than to
suggest he had a duty to co-operate with police. Even though appellant had a
similar history to the Vetrovec witness, an anti-Vetrovec warning was not
required. The standard W.(D.) instruction was sufficient to allay any potential
prejudice in these circumstances. Finally, trial judge did not err in failing
to instruct jury on intoxication. There was no air of reality to an
intoxication defence, nor was there sufficient evidence of intoxication upon
which a reasonable jury could infer the appellant did not have the requisite
intent or capacity for murder.

Reasons for Judgment of the Honourable
Madam Justice Newbury:

[1]

Following a trial of some 11 weeks, the appellant Mr. Cliff was
convicted by a jury of the second degree murder of Lana Christopherson and
Andrew Gawley. The murders took place in Vancouver on the morning of October
25, 2008 at about 8:00 a.m. Ms. Christopherson died as a result of
multiple stab wounds shortly after she was attacked in a two-bedroom apartment
rented by Mr. Gawley. He had his throat slit and was doused with gasoline
and set on fire in the same attack. He survived a few months but ultimately
died without being able to identify his killer. He told the police, however,
that after he was stabbed, the assailant told him to Go to sleep, you are
dead. Mr. Gawley managed to call 9-1-1 before the man came back into his
room, poured gasoline on him and lit it on fire.

[2]

It appears that the relationship between Ms. Christopherson and Mr. Gawley
was simply one of roommates, while Mr. Cliff and Ms. Christopherson
had recently lived together. Both were drug addicts and Ms. Christopherson
had assisted the appellant in his business as a drug dealer and seller of
stolen goods. Prior to October 25, police had raided Mr. Cliffs
residence. He had escaped and was hiding out elsewhere lest the police
return to arrest him on drug offences. Ms. Christopherson had remained at
the residence and was in contact with him by phone, email and text. Various
emails written by Mr. Cliff to various friends and associates suggested
that he had begun to suspect her of stealing from him, and that she might even
inform on him to police in order to keep custody of her child. Two days
before the murders, Ms. Christopherson had given him a letter (the
Hey Crazy letter) in which she purported to break off their relationship.

[3]

The case against Mr. Cliff was entirely circumstantial, but was
nevertheless very strong. There was evidence that he and Ms. Christopherson
had been together the night before October 25, 2008 at a meth emporium
operated by a friend, Ms. Montgomery. They had argued and were told to be
quieter. They packed up and took a cab at about 2:30 a.m. to the apartment
building (Earls Court) where Ms. Christopherson was sharing a suite
with Mr. Gawley. A resident of the building saw a man and woman in the fourth
floor hallway at about 4:20 a.m. and later identified Mr. Cliff as the man.
Video surveillance from Earls Court showed the appellant and Ms. Christopherson
entering the building, Mr. Cliff carrying a red carrying case.

[4]

A red gas can was found in the hallway after the attack; it appears this
contained the gasoline by which the fire was set. This container could have
been carried in the case carried by Mr. Cliff in the video surveillance
from Earls Court.

[5]

A blood-stained jacket and shirt belonging to the appellant were later found,
along with the Hey Crazy letter from Ms. Christopherson, in a housing complex
nearby. The shirt tested positive for Mr. Cliffs DNA. When he was arrested
on October 28, he had second-degree burns on his left hand and thighs, and
initially provided a false name. One (and only one) series of footprints
leading from the fifth floor of the building to the ground floor and then
to the back exit were found; Mr. Cliffs left-hand print was found in Ms. Christophersons
bedroom and on the bannister of a stairwell in the building. There was
no evidence of forced entry to Mr. Gawleys suite, #508.

[6]

Counsel agreed at trial that the critical issue was the identity of the
killer(s). The only evidence called by the defence was Mr. Cliffs
testimony. A great volume of his testimony in chief consisted of his
explanation of various email messages he had sent to and received from friends
and associates over the weeks prior to the murders. These were difficult to
decipher, but painted a picture of an erratic and at times paranoid
personality.

[7]

With respect to the events of October 24-25, 2008, the appellant
acknowledged that he and Ms. Christopherson had arrived at Earls Court after
having argued, and that she had given him the Hey Crazy letter breaking off their
relationship. They had arrived carrying his computer equipment, surveillance
cameras, clothing, body armour, alcohol and drugs. He said the red carrying case
contained drugs and he denied bringing a can of gasoline.

[8]

Mr. Cliff testified that when they arrived at Mr. Gawleys
suite, he and Ms. Christopherson were a little bit drunk. They drank a
little more, had sex, and then went to sleep. He said he was woken by two men
whom he first thought were police. One had a gun, and a third was talking to Ms. Christopherson.
They were not wearing masks. The appellant was taken into the living room and
told to sit; he said he did not recognize any of the three men. The assailants
demanded drugs and when Mr. Cliff refused to hand any over, gas was thrown
on him and he was lit on fire. He rolled around the floor and was burned
between his legs and on his hand. The assailants did not try to stop him
rolling around. He finally told the men that it was in the red bag.

[9]

Meanwhile, Mr. Cliff said, he could hear commotion in Ms. Christophersons
room, and then a scream. He heard Ms. Christopherson say Hes going to
kill me and then an explosion occurred. He said he managed to break free and
ran to her room. He saw that she was not moving, although her eyes were open.
He said he did not think there was anything he could do to help her. He ran out
the door into the hallway to an exit, ran down the stairs and jumped over the
back fence to another apartment complex where he shed most of his clothes and
the Hey Crazy letter.

[10]

Mr. Cliff testified that he began looking for a hose because his
legs were burning. He first removed his jacket after emptying the pockets,
then threw off his other wet clothes and left the apartment complex. (His
discarded clothes showed no signs of burning.) By this time, he was in his
underwear. He found a ladys shirt or sweater on someones porch and put it on.
Eventually he found some shoes in the back of a truck. He went into a local
mall where he bought a pair of jogging pants and another shirt. He then caught
a bus to Burnaby, where he transferred to another bus going downtown and went
to the house of a friend where he stayed for one night. He then went to the
house of another friend.

[11]

When asked in chief if he had killed Ms. Christopherson or stabbed Mr. Gawley,
Mr. Cliff said he had not, and that he did not know who the assailants had
been. In his words:

I didnt get to see the one guy and the other two guys, Ive
never seen them before. My friends have been asking me that since Ive been in
jail. They wanted, like, they  like, they want to go after these people. Like,
what do you think?
Like, if I knew who they were, like, Id be doing
something about it. Like, whether it be by the law or not, like, I would want
to be telling my friends or telling somebody. At this point Id probably want
to tell the police
. Like, weve talked about this before. I would  I would
do anything right now. Like, Im willing to cooperate. Like, Im willing to be
as open as I can.

Because you know what?
Being
called a  being called a rat right now to me isnt important
. Like, two
people got killed and its like, I think everybodys looking at me probably
like Im a piece of shit. Like, putting me on the news. My family wont, like,
talk to me. Everybody looks at me like Im a monster. I want people to
know who did it. I dont want people to be scared of me everywhere. [Emphasis
added.]

[12]

The Crowns theory was that Mr. Cliffs testimony regarding three
intruders was a total fabrication. There was no physical or surveillance
evidence to suggest that three men had entered Earls Court or been in suite
508. In cross-examination, Mr. Cliff acknowledged that although the love
of his life had been stabbed and there was a fire in her apartment, he had not
called an ambulance or the police to come to her assistance. Instead, he said, he
had called a friend who was a pretty prominent leader of an organized crime
group and his friend Alison Cain and another friend because he wanted help for
himself. Ultimately, he agreed he had done whatever he could not to get caught
and ... absolutely nothing to help ... Lana. Although the theory of the
defence was that Mr. Cliff himself, as an important drug dealer, was the
high value target of the three intruders, he could provide no explanation for
the fact that Ms. Christopherson and Mr. Gawley (whom Mr. Cliff
said he had never met) had been killed and he, Mr. Cliff, had not been
killed. He acknowledged that the intruders had not chased him down the hall as
he left the apartment; nor had he seen anyone pursuing him as he jumped over
the fence to the other complex  even though he had been an eyewitness to
horrific crimes. He had made no effort to obtain medical attention for his
burns.

[13]

Mr. Cliff testified that when he read about Ms. Christophersons
death in the newspaper, he had felt bad. The following exchange with Crown counsel
then ensued:

Q         Mr. Cliff, if you really, truly thought
there was hope for Lana and if you really and truly loved Lana as you say you
did, you would not have hesitated but to take that cellphone of yours, call
911, call the ambulance so that immediate help could arrive for your lover,
Lana. Isn't that right?

A          I made a mistake, yes.

Q         You made a mistake and on your evidence that
mistake cost Lana her life?

A          I don't want to
think of it that way. But you're right, I could have.

and

Q         And by giving the police a false name, you
thwarted the police efforts to find who you say were the real killers.

A          I'm not sure that I thwarted their efforts to
do that by giving a false name. That had to do with arresting me for
questioning and that had to do with  yeah, potentially if I  if I was willing
to give a statement  that would be assuming a lot of things. To say that,
you've got to assume I'm going to make a statement once I'm arrested and I did
call a lawyer right away. I called [a Vancouver lawyer] and [the lawyer] told
me there's no way I should give a statement whatsoever. My counsel instructed
me and they told me, they go, "Just keep your mouth shut. Sit there. Get
medical attention and then we're going to talk to you."

Then I had to wait. He couldn't
do me  he couldn't be my lawyer. I then got [defence counsel at trial] as
counsel, I called him and then he instructed me upon the same things. So I
haven't  I haven't given the police any statements at all.

Q         By giving the police a false name, the name of
Adam Warkinson when you were arrested on October the 28th, you did anything but
cooperate with the police which you say  said yesterday you really wished you
would do now. Isn't that right?

A          Yes.

There was no evidence of any statement the appellant gave to
police apart from his providing the false name when arrested.

[14]

In cross-examination Mr. Cliff was asked to view the video
surveillance of the front entrance of Earls Court on the day of the attacks.
He agreed that none of the persons shown entering or leaving looked like the
assailants.

Discussions
between Counsel and the Court Regarding Jury Charge

[15]

The trial judge had extensive discussions with counsel concerning his
proposed charge. As noted in the Crowns factum, both counsel agreed, first of
all, that there was no basis for the judge to charge on manslaughter as opposed
to murder, given the nature of the injuries suffered by both deceased and the
fact that gasoline had been brought to the apartment and poured over Mr. Gawley.

[16]

Second, although Mr. Cliff had testified that he and Ms. Christopherson
had finished the booze when they reached her room at 4:00 a.m., counsel were
in agreement that there was no air of reality to the suggestion that Mr. Cliff
had been intoxicated at the time of the attacks (8:00 a.m.) to the extent that
would justify putting the defence of intoxication to the jury. Indeed, experienced
defence counsel agreed there was no reasonable chain of reasoning on the
evidence that could lead [the jury] to manslaughter by intoxication.

[17]

Counsel agreed with the judge that a
Vetrovec
warning should be
given with respect to the evidence of Ms. Montgomery, who in the words of
counsel for the defence at trial ran a crystal meth emporium. Counsel also agreed
with the suggestion that the jury should be charged specifically on three acts
of post-offence conduct  Mr. Cliffs flight from the murder scene, the
discarding of his clothing with Ms. Christophersons blood on it, and the
giving of false names upon arrest. It is important to note that no challenge was
made on appeal regarding the judges instruction on this conduct.

[18]

In the course of the colloquy with the Court, defence counsel asked the
judge to emphasize the fact that the jury must be diligent to contain the
bad character evidence that theyve heard of the accused. He continued:

And that, I think extends to some
of the unlawful, not just the unlawful activities of the accused but the
unlawful possessions of the accused. Or maybe not unlawful but unsavoury
possessions of the accused. So like the smoke bombs and the false ID and the
crossbow, of course. Drugs, as testified to.

The trial judge responded that he was not inclined to spend
a lot of time cataloguing all of the things that they might find to be
disreputable or illegal conduct, not only because he might leave something
out, but because it just has the effect of re-emphasizing it. Counsel replied
Okay and the discussion ended there.

[19]

In his charge, the trial judge gave a
Vetrovec
warning with
respect to Ms. Montgomery in the usual terms, ending with the admonition
that the jury should be reluctant to accept her testimony in the absence of
any supporting evidence or confirming evidence. The judge then immediately told
the jury that:

During the testimony of Lynn
Montgomery, you heard her say that Mr. Cliff may have been someone
involved in drugs. You also heard her say that he had gotten out of jail. You
also have before you evidence of text messages and emails that refer to drugs
or sexual matters or the police. You also heard Mr. Cliff testify about
such things.
I must warn you that you must not use this as evidence that Mr. Cliff
is a person of bad character who was therefore more likely to have committed
the offences for which he is now on trial
. He is charged on the indictment
only with the murder of Lana Christophersen and with the murder of Andrew Gawley.
He is not on trial for any of his past conduct other than the matters set out
in the indictment.
You must not use evidence of other disreputable or even
illegal conduct to infer that he was therefore more likely to have committed
the offences set out in the indictment, nor may you use the evidence to punish Mr. Cliff
for other past misconduct by finding him guilty of the offences charged.

and further:

You should approach his evidence the same way you would
approach the evidence of any other witness, bearing in mind what I told you
earlier about the credibility of witnesses. Please remember that you do not
have to accept or reject all of the evidence of any witness, including Mr. Cliff.
It is up to you whether you accept all of his testimony, part of his testimony,
or none of his testimony.

It is not a question of whether
or not you believe Mr. Cliffs testimony. If his evidence raises a
reasonable doubt in your mind about his guilt, then you must return a verdict
of not guilty.

[20]

In his review of the evidence relating to identity, the judge told the
jury to consider all the relevant evidence and to:

consider Mr. Cliff's
testimony that he did not stab either Lana Christophersen or Mr. Gawley
and his testimony that he did not set Mr. Gawley on fire. Consider his
testimony that three unknown men had entered the apartment, apparently looking
for his drugs, and that they attacked him, causing burns to his body. He says
that these are the men who attacked Lana Christophersen and Andrew Gawley. Consider
Mr. Cliff's testimony that after the attack he tried to pick up Lana and
in doing so got her blood on him. Consider his testimony that when he left the
apartment he did not know whether she was still alive. Consider the cellphone
records and the fact that after he left the apartment he called several of his
associates but he did not try calling Lana and did not call 9-1-1 or an
ambulance. Consider the evidence of the police witnesses that they found no
evidence of forced entry to suite 508.

As already mentioned, the jury convicted Mr. Cliff of
the second degree murder of both Ms. Christopherson and Mr. Gawley.

On Appeal

[21]

In this court, the appellant asserts the following three errors on the
part of the trial judge:

A.         The
learned trial judge erred in failing to instruct the jury that it could draw no
adverse inference from the fact that the Appellant exercised his right to
silence and his right to counsel.

B.         The
learned trial judge erred in his instruction to the jury regarding their
assessment of the Appellants evidence and in particular failed to instruct the
jury that corroboration of the Appellants evidence was not required.

C.        The learned trial judge erred in
failing to instruct the jury on the defence of intoxication or, in the
alternative erred in failing to review and relate the evidence of the
Appellants consumption of drugs and alcohol to the required intent for
second-degree murder.

[22]

Mr. Narwal for the appellant acknowledged that defence counsel at
trial argued
against
the trial judges instructing the jury on
intoxication, and that counsel said nothing about a warning to the jury
concerning the appellants right to silence or about corroborative evidence
in relation to the appellants testimony. Mr. Narwal pointed out that
although this is a factor to be considered by this court on appeal, it is not necessarily
fatal. Mr. Tischler for the Crown did not disagree, but contended that the
position of counsel at trial is a significant demonstration of the
correctness of the trial judges instructions and that it is very rare
that an appellate court will find an error on a matter agreed upon by counsel
and the trial judge. (See, e.g.,
R. v. Shannon
2014 BCCA 250 at para. 12,
citing
R. v. Fontaine
2011 BCCA 140 at para. 13.) I would add
that as the trial judge suggested in this case, defence counsel might also make
a
tactical
judgement that the risks of a trial judges emphasizing certain
evidence in the course of a warning or other instruction outweigh the possible
beneficial effects of such a warning. This is a judgement that generally lies
within the expertise of counsel in consultation with his or her client.

Right to Silence

[23]

Counsel for the appellant submitted that in cross-examining Mr. Cliff
as to his failure to take any steps to protect or assist Ms. Christopherson
after the appellant had fled the apartment, the Crown had trenched on his
right to remain silent. Although Mr. Narwal acknowledged that the Crowns
questions  including those reproduced above at para. 13  had been
intended to challenge the credibility of Mr. Cliffs assertions that he
had loved Ms. Christopherson, counsel contended that the Crown had acted unfairly
in suggesting that Mr. Cliff was required to call police or emergency
services to assist her. As well, it was said, the appellant had not thwarted
the police by giving them a false name when he was first detained.

[24]

Mr. Narwal referred us to
R. v. Snelson
2013 BCCA 550, in
which the trial judge was held to have erred in admitting into evidence the
accuseds statement, in the course of a long interview with police, that
he had not yet decided whether he intended to plead guilty or not. In charging the
jury, the trial judge mentioned the statement and observed that it was both
unambiguous and obviously inconsistent with ... innocence. He gave no further
warning regarding the accuseds right to silence and, as this court found, left
the jury with the impression that they could draw an inference of guilt from
the statement. No such error was made in this case, and indeed as noted
earlier, there was no evidence of
any
statement made to the police by Mr. Cliff.

[25]

We were also referred to
R. v. Chambers
[1990] 2 S.C.R. 1293. In
that instance, the Crown in cross-examining the accused suggested that he had
recently concocted a story involving his co-accused, one Kuko. The Crown then
asked the accused why he had not provided this story when he had been arrested.
Mr. Chambers replied that As a lawyer I would never talk to the
authorities under any condition where theyve laid conspiracy charges and
arrested a whole bunch of people. The questioning continued along these lines
until defence counsel objected and the jury was excused. The trial judge
reserved his ruling on the issue. (See p. 1314.) Evidently, documentary
evidence was available that demonstrated that the accused
had
put
forward the defence that he was pretending to participate in a conspiracy with
Kuko but had never intended to become a party to it. It was unclear exactly
when the Crown became aware of this defence, but it had clearly been conveyed
to Crown counsel prior to commencement of the trial. (Para. 55.)

[26]

The Supreme Court described what occurred next:

Eventually Crown counsel appeared
to agree with the position taken by counsel for the appellant. Both counsel
requested the trial judge to direct the jury to ignore completely the questions
and answers given pertaining to the appellant's silence not only on the issue
of guilt or innocence, but also with respect to the issue of the appellant's
credibility. The trial judge undertook to give these directions. It was on this
basis that defence counsel advised that he would not re-examine the appellant
with respect to the issues arising from his right to silence. Although the
trial judge confirmed that it was his responsibility to give these instructions
to the jury, he neglected to do so. Neither counsel reminded him of his
undertaking at the completion of the charge. Counsel must share with the trial
judge the responsibility for the omission of this important direction. The
remaining question is whether the omission constitutes a reversible error. [At 1315.]

[27]

The Court concluded that unless the Crown could establish a real
relevance and a proper basis for the admission of the questions of the
investigating officers and the evidence as to the accuseds ensuing silence,
that evidence should not have been admitted. Further, without a direction from
the trial judge to the effect that the accused had been under no duty to
disclose the Kuko story to a person in authority when asked, the curative
proviso in s. 613(1)(b)(iii) of the
Code
could not be applied. In
the words of Mr. Justice Cory for the majority:

... As a result of the Crown's
cross-examination, the jury could well have been left with the erroneous
impression that Chambers was under a duty to disclose the Kuko story to a
person in authority. The failure to disclose a defence of alibi in a timely
manner may be considered in assessing the credibility of that defence but that
is a unique situation. As a general rule there is no obligation resting upon an
accused person to disclose either the defence which will be presented or the
details of that defence before the Crown has completed its case.
There was
clearly no obligation resting upon the appellant to disclose either his defence
of double intent or the Kuko story to the Crown or anyone in authority. The
failure to correct such an impression by direction from the trial judge
rendered the right to silence a snare of silence for the appellant.
Without
any direction to ignore these questions and answers, it is impossible to say
that the verdict would necessarily have been the same. [At para. 66;
emphasis added.]

[28]

In my view, however, these cases and others cited by the defence
(including
R. v. White
2011 SCC 13 at para. 168 and
R. v.
Poirier
(2000) 146 C.C.C. (3d) 436 at 442-4) do not assist Mr. Cliff.
The questions addressed to him in cross-examination by the Crown were not aimed
at the fact  he had remained silent in any interaction with the police or
failed to disclose some aspect of his defence; rather, the Crown was attacking
the credibility of his
testimony
that he had loved Ms. Christopherson;
that he had run away from the apartment because he did not think he could do
anything; that he would do anything to co-operate with the police; and that
being known as a rat was not important to him given that two people had been
killed. The Crown was not suggesting that Mr. Cliff had a duty to co-operate
with them, but that his testimony to the effect that he would help the police
if he could, was not believable, given his flight from the scene of the attacks,
the fact he made no effort to call emergency services, the giving of a false name
when he was arrested, and his refusal to name the friend he had called on after
the murders. I do not regard the questions asked by Crown counsel in
cross-examination of Mr. Cliff, or the admission of his testimony in
response, as undermining his right to silence in any material way. His
right to silence did not mean the Crown could not cross-examine him at trial on
his testimony in chief.

[29]

I would not accede to this ground of appeal.

Anti-Vetrovec
Warning?

[30]

Under this rubric, Mr. Narwal submits that since a
Vetrovec
warning was given to the jury concerning their use of Ms. Montgomerys
evidence, and the appellant was, like her, a drug dealer and otherwise
unsavoury character, the trial judge should have told the jury that they should
not
, or need not, look for corroboration of
Mr. Cliffs
evidence before believing him. Instead, as we have seen (see para. 19 above),
the judge told the jury to approach Mr. Cliffs evidence in the same way
as the evidence of any other witness
and
that they should not use
evidence of his illegal conduct to infer that he likely committed the murders.
Near the beginning of his charge, the judge had also given the usual
W.(D.)
warning concerning the matter of credibility in relation to Mr. Cliffs
testimony. The defence contends the jury should have been warned specifically,
however, that corroboration was
not
required with respect to Mr. Cliffs
evidence in order to raise a reasonable doubt.

[31]

Counsel were unable to refer us to any case in which a warning of this
kind has been required or even requested. We were referred to the decision of
the Ontario Court of Appeal in
R. v. Chenier

and Farley
(2006)
205 C.C.C. (3d) 333, which concerned an alleged murder conspiracy on the part
of the two accused. The Crowns case relied largely on the evidence of one
Boisclair, one of the alleged co‑conspirators, and to a lesser extent the
testimony of one Moore. Boisclair testified about several abortive plans to
kill the deceased and about the murder itself, which he said Chenier had
arranged to be carried out by Boisclair and Farley. He testified that Farley
had shot the deceased with a gun provided by Chenier and that he, Boisclair,
drove the get-away car. Boisclair had made a deal with the Crown under
which he was permitted to plead guilty to manslaughter in return for his
testimony against Chenier and Farley. Neither of those men testified at trial,
but the defence position was that it was Boisclair who alone had committed the
murder and that he had fabricated his evidence.

[32]

In his charge in
Chenier
, the trial judge told the jury that in
weighing the testimony of Boisclair and Moore, they should look for whatever
you feel tends to confirm the reliability and truth of their accounts before
deciding what of their evidence to accept. (At 349.) This warning was found to
be inadequate for a number of reasons. In the words of Mr. Justice Blair:

... First, while the trial judge
instructed the jurors to be very careful about accepting the evidence of
Boisclair and Moore without other confirmatory evidence, he did not make it
clear - expressly or by implication - that it was dangerous to convict on the
basis of their evidence alone in the circumstances of this case. Secondly, the
trial judge failed to properly explain the concept of confirmatory evidence in
the context of a
Vetrovec
warning. Finally, the trial judge's
instruction that Boisclair's plea of guilty to manslaughter was of no
evidential value - although correct in the narrow context in which it was
given - may well have misled the jury into giving less weight to the extent of
the benefit that Boisclair and Moore received through their plea bargain than
should have been the case. [At 347-8.]

[33]

Another successful ground of appeal in
Chenier
arose from the
fact that the trial judge gave a
Vetrovec
warning concerning the
evidence of one Gagnon, who was Boisclairs father. He was called
by
the defence
to support the assertion that it was Boisclair who had killed
the deceased because he, Boisclair, had owed money to the deceased. Regarding
Gagnons evidence, the trial judge told the jury:

I would give you the same caution about Andy [Gagnon], who
took the stand near the end of the trial, Boisclair's father
.

His serious criminal and
antisocial background and dysfunctional early life and his time spent in prison
and possible interest in the outcome of the case is also cause for giving his
evidence most careful scrutiny before deciding whether to place any reliance
and if so, what amount of reliance, upon that evidence. [Emphasis added.]

This was followed by a
W.(D.)
-like
instruction in relation to Gagnons testimony, including the following:

However, when you consider the
evidence of Andy Gagnon, called by the defence to support the suggestion that
it was Boisclair who may have killed Earl Joe because he had become indebted to
him and as Gagnon said, had got into deep shit,
you will not be asked or
called on to decide whether you believe Gagnon beyond a reasonable doubt but
only whether that evidence raises a reasonable doubt in your mind whether it
was Farley who shot Earl Joe
or indeed, André Boisclair as Mr. Murphy
suggests and as I think was the obvious inference to be taken from Andy Gagnon's
testimony before you. [Emphasis added.]

[34]

The Court of Appeal rejected the Crowns argument that the impact of any
Vetrovec
direction with respect to Gagnon had been neutralized by the
W.(D.)
instruction. Again in the words of Blair J.A.:

... The rationale behind the
principle that
a
Vetrovec
warning is not to be given in connection
with defence evidence is that the instruction to look for
confirmatory/corroborative evidence impermissibly transfers a burden to the
accused and is contrary to the requirements of
W.(D.)
. Defence evidence
need only raise a reasonable doubt
. In spite of this relationship between
Vetrovec
and
W.(D.)
in the context of defence evidence, however, the purpose of a
Vetrovec
warning and the purpose of a
W.(D.)
instruction are quite
different. The former is designed to help equip the jury to assess the
reliability of, and the weight to be given to, the testimony of a disreputable
or unsavoury witness called to advance the Crown's case. The latter is designed
to help equip the jury to assess whether the Crown has met its onus of proving
the case beyond a reasonable doubt on all of the evidence, once the reliability
or non-reliability of the defence evidence has been determined.
Thus, where
the charge goes beyond what is permissible commentary on the credibility of an
unsavoury defence witness and directly or implicitly instructs the jury to find
independent confirmation of the witness testimony, it is unlikely that
coupling such a direction with a specific
W.(D.)
-like directive will
mitigate the erroneous
Vetrovec
warning respecting the defence witness.
Such was the case here.
[At 353-4; emphasis added.]

Ultimately, the appeal was allowed and a new trial ordered.

[35]

The Court in
Chenier
did not refer to an earlier decision of the
Ontario Court of Appeal,
R. v. Oliver and Morrison
(2005) 194 C.C.C. (3d)
92. The accused in that case were charged jointly with the second degree murder
of a Mr. Pace. The theory of the Crown was that the two accused had
accosted and beaten Pace and were guilty of murder as co-perpetrators or as
aiders and abetters. Oliver did not testify, but Morrison did. He testified
that Oliver and Pace had gotten into a fight which Morrison had been unable to
break up and that he, Morrison, had left the scene. The fight between
Oliver and Pace had continued. Both Oliver and Morrison were convicted of
second degree murder.

[36]

One of the grounds of appeal arose out of the following instruction
given to the jury:

Subject to any specific contrary instructions that I may give
you, you may consider the testimony of Mr. Morrison to help you decide the
case of Mr. Morrison and of Mr. Oliver. You do not consider that
testimony only to help you decide the case of Mr. Morrison.

I would add this caution. Mr. Morrison
has given testimony that tends to show that only Mr. Oliver was involved
in any assault on Mr. Pace. You should consider that testimony with
particular care because he may have been more concerned about protecting
himself than about telling you the truth. Bear that in mind when you decide how
much or little you can believe of or rely on what Mr. Morrison told you
about Mr. Oliver's involvement in deciding this case. [At 107.]

[37]

The defence argued that this caution was akin to a
Vetrovec
warning, which the Court of Appeal agreed is inappropriate in respect of any
defence witness much less the accused. The Crown emphasized that the caution
was
not
a
Vetrovec
warning but had been directed at the jurys
potential use of
Morrisons
evidence to implicate
Oliver
[and
that] the caution protected Olivers fair trial right without
compromising Morrisons equivalent right to a fair trial. (At 107; my emphasis.)

[38]

Mr. Justice Doherty for the Court of Appeal ultimately agreed with
the Crown on this point. He ruled that the instruction had achieved the
appropriate balance:

... The trial judge told the jury
that his "caution" should be borne in mind when considering
Morrison's evidence as it applied to Oliver's involvement in the homicide. He
immediately followed this "caution" with the classic reasonable doubt
instruction from
R. v. W.(D.)
, 63 C.C.C. (3d) 397 (S.C.C.). That
instruction made it clear to the jury that when considering Morrison's evidence
as it related to the case against Morrison, the jury was required to acquit if
that evidence alone, or in combination with other evidence, left them with a
reasonable doubt. [At 108.]

He went on to observe that:

The second point I would make is
this. Where a trial judge determines that the fair trial rights of a co-accused
require a "caution" with respect to the testimony of the other
accused,
the trial judge should expressly tell the jury that the caution
applies only to the case against the co-accused
and has no application when
considering the case against the accused who has testified.
While I am
satisfied that this instruction had that effect, a more express limitation of
the "caution" would have been preferable.
[At 109.]

[39]

Chenier
, then, involved the giving of an
erroneous

Vetrovec
warning, while
Oliver
involved a warning given correctly concerning an
alleged co-conspirators testimony which the Court found would not, given the
W.(D.)
warning, have been misused by the jury. Neither case stands for the proposition
that where a
Vetrovec
warning is
properly
given, the trial judge
must, or should, caution the jury against extending it beyond its clear
boundaries.
Oliver
indicates that a
W.(D.)
instruction can
operate to neutralize any possible misunderstanding of a specific caution,
and I believe the same reasoning applies here. If it were otherwise, the
consequences would be far-reaching: in addition to giving the usual proper cautions,
trial judges would be obliged to assume that their instructions would be
misapplied and would have to warn against applying the cautions to other
circumstances. As stated by Charron J. for the majority in
R. v.
Griffin
2009 SCC 28:

To make too much of the risk that
the jury
might
misuse evidence is contrary to established principles of
law regarding jury trials. As Côté J.A. aptly noted, juries must be trusted to
have the requisite intelligence to perform their duties in accordance with the
instructions given to them by the trial judge. [At para. 72.]

In my view, only a real risk of prejudice to an accused
could justify requiring trial judges to provide a caution of the kind sought
here by Mr. Cliff.

[40]

In my opinion, no such risk existed here. The jury was told that it
should consider the appellants evidence just like that of any other witness;
that Mr. Cliffs disreputable or even illegal conduct after the murders should
not be weighed in determining his guilt; and that even if they did not know
whom to believe, they must acquit if they were left with a reasonable doubt as
to his guilt. It was clear from the charge where the onus lay at all times and
that as long as the jury was left with a reasonable doubt, they could not
convict.

[41]

I would not accede to the second ground of appeal.

Intoxication

[42]

Finally, Mr. Narwal contends that despite the agreement of defence
counsel at trial to the contrary, the trial judge should have instructed the
jury on intoxication or alternatively, should have instructed that the evidence
of drug and alcohol consumption was relevant to the accuseds intent for
murder. In counsels submission, by declining to do so in the absence of an
air of reality to the intoxication defence, the trial judge effectively
required Mr. Cliff to prove that he had been intoxicated to the degree
required to establish the defence of intoxication.

[43]

It is true, of course, that the position taken by defence counsel at
trial on the relevance of intoxication cannot be determinative of this issue.
On the other hand, Mr. Cliffs version of events was that Ms. Christopherson
and Mr. Gawley had been killed by three intruders, not by himself in an
intoxicated state. Thus counsel for Mr. Cliff at trial had to make a
tactical decision whether to assert an intoxication defence as an alternative
to the outright denial that he had killed the deceased. The risks to the
accused of doing so before a jury would have been substantial; counsel chose,
or was instructed, not to run it. Furthermore, Mr. Cliffs evidence
regarding his consumption of alcohol prior to the murders was vague and at best
amounted to a statement that he was kind of drunk. As the Crown points out, Mr. Cliff
was not asked any questions in chief whether he was still feeling the effects
of alcohol consumption when he was allegedly awoken at 8:00 a.m. by the
assailants. Even on his own testimony, he seemed to be well in control of
his actions at the time, exhibiting a single-minded determination to avoid any
contact with police or emergency services.

[44]

In my view, these circumstances preclude any evidentiary basis for a
defence of intoxication which if believed would have allowed a reasonable jury,
properly instructed, to acquit on the basis of lack of capacity or intent. (See
R. v. Lemky
[1996] 1 S.C.R. 757 at 767.) This is an issue that
trial judges are well placed to determine, given that they have seen the
evidence unfold, including in this case the testimony of the accused. The
following observations of Chief Justice McLachlin in
Lemky
seem to apply
in this case:

... the evidence, considered most
favourably for the accused, falls short of supporting such an inference. His
blood alcohol level shortly after the shooting was only slightly over the legal
limit for driving an automobile. He carried out purposeful actions both before
and after the shooting, actions which ranged from ordering drinks at the dance
beforehand to calling his mother and the police immediately afterward. His
conduct before and after the shooting demonstrated an awareness of the
consequences of what he was doing. This demonstrates that he in fact foresaw
the consequences of what he was doing immediately before and after the
shooting. [At para. 20.]

[45]

In the result, I would not accede to this third ground of appeal.

[46]

In light of my conclusions on the other two grounds of appeal, I would
dismiss the appeal, with thanks to both counsel for their able
submissions.

The Honourable Madam Justice Newbury

I AGREE:

The Honourable Mr. Justice
Lowry

I AGREE:

The Honourable Mr. Justice
Tysoe


