



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vorobiov, 2018 ONCA 448

DATE: 20180514

DOCKET: C56598

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

BETWEEN

Her Majesty the Queen

Respondent

and

Ivgeny Vorobiov

Appellant

Scott Hutchison and Apple Newton-Smith, for the
    appellant

Eric Siebenmorgan and Rachel Young, for the respondent

Heard: November 30, 2017

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

Laskin J.A.:

A.

Introducton

[1]

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

[2]

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

[3]

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

[4]

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

[5]

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

[6]

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

[7]

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

[8]

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

1.

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

2.

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

3.

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

[9]

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

B.

Additional Background

(a)

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

[10]

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

[11]

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

[12]

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

(b)

The scene and timing of the murder

[13]

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

[14]

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

[15]

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

(c)

The case against Vorobiov

[16]

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

·

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

·

Vorobiov eventually agreed to kill Davis for Ross.

·

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

·

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

·

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

·

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

·

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

·

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

·

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

·

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

·

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

·

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

·

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

·

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

(d)

Vorobiovs defence

[17]

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

[18]

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

[19]

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

[20]

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

C.

the issues

(1)

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

[21]

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

[22]

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

[23]

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

[24]

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

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

[25]

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

[26]

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

[27]

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

[28]

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

(a)

Smiths evolving narrative

[29]

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

[30]

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

[31]

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

[32]

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

(b)

The cross-examination of Moreira

[33]

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

[34]

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

[35]

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

[36]

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

·

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

·

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

·

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

·

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

·

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

·

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

[37]

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

(c)

The cross-examination of Smith

[38]

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

[39]

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

[40]

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

·

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

·

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

·

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

·

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

·

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

(d)

Conclusion on this ground of appeal

[41]

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

(2)

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

[42]

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

as
    follows:

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

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

[43]

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

·

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

·

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

·

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

·

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

[44]

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

[45]

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

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

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

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

[46]

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

[47]

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

[48]

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

[49]

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

[50]

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

[51]

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

[52]

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

[53]

I
    would not give effect to this ground of appeal.

(3)

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

[54]

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

[55]

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

[56]

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

[57]

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

[58]

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

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

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

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

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

[59]

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

[60]

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

[61]

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

[62]

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

[63]

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

[64]

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

[65]

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

[66]

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

[67]

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

[68]

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

[69]

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

[70]

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

[71]

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

[72]

I would not give effect to this ground of appeal.

D.

Conclusion

[73]

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

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

John Laskin J.A.

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

I Agree. Arthur M. Gans J.





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



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


