



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jackson, 2013 ONCA 632

DATE: 20131017

DOCKET: C52605

Rosenberg, Sharpe and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Douglas Jackson

Appellant

Catriona Verner, for the appellant

David Lepofsky, for the respondent

Heard: June 18, 2013

On appeal from the conviction entered by Justice James R.
    H. Turnbull of the Superior Court of Justice, sitting with a jury, on March 11,
    2010, and the sentence imposed on June 16, 2010.

Gillese
    J.A.:

[1]

After a month-long trial for first-degree murder, Douglas Jackson was
    convicted of second degree murder by a judge sitting with a jury.  He was
    sentenced to life imprisonment, with a 15-year period of parole eligibility.

[2]

At trial, Mr. Jackson admitted that he shot the deceased, Derrick
    Campbell, but claimed that he acted in self-defence, had been provoked and that
    due to a combination of provocation, self-defence and extreme intoxication on
    crack cocaine, he lacked the requisite intent for murder.

[3]

Mr. Jackson (the appellant) appeals his conviction and seeks leave to
    appeal his sentence.

[4]

For the reasons that follow, I would dismiss the conviction appeal, and
    grant leave to appeal sentence but dismiss the sentence appeal.

BACKGROUND IN BRIEF

[5]

On December 13, 2006, the appellant and several other individuals were drinking
    and using crack cocaine in an apartment in Hamilton. At some point in the
    evening, they ran out of drugs.  A plan was formed to lure Mr. Campbell, a
    crack dealer, to the apartment where they were partying so that they could rob
    him.

[6]

When Mr. Campbell arrived at the apartment around 11:00 p.m., he was led
    to a washroom where some of the participants tried to convince him to
front them some crack.  While they were talking to Mr. Campbell, the
    appellant stuck a gun in the bathroom and demanded Mr. Campbells money and
    drugs.

[7]

One of the others in the washroom intervened and the robbery was called
    off.  The appellant left the washroom area.

[8]

According to the appellant, Mr. Campbell then approached him in an aggressive
    fashion, calling him names.  The appellant testified that Mr. Campbell reached under
    his oversize sweater with his left hand, revealing what he believed to be the
    handle of a black gun.  At that point, the appellant pulled out the gun that he
    had earlier pointed at Mr. Campbell and fired a number of shots.  One of them
    entered Mr. Campbells heart.

[9]

Mr. Campbell turned and began to run from the apartment.  In the
    process, the appellant shot him in the back.  He then followed Mr. Campbell into
    the hallway, continuing to brandish the gun.

[10]

Mr.
    Campbell was able to run down four floors in the apartment staircase before
    collapsing and dying.  Four bullets were recovered from his body.  He had been
    shot in the chest, arms, and back.  When he was found and searched, no gun or
    other weapon was found.

[11]

Defence
    counsel argued at trial that the appellant acted in self-defence upon seeing
    Mr. Campbell reach for his gun.  However, the police found no guns at the
    scene, not even the one that had been used to shoot Mr. Campbell.  Further, the
    evidence of the witnesses was largely inconsistent on the details of the planned
    robbery and the shooting.  Thus, a critical issue at trial was whether Mr.
    Campbell (the deceased) had a gun with him at the time he was killed.

THE ISSUES

[12]

The
    appellant raises three issues on appeal. He argues that the trial judge erred by:

1.

excluding evidence
    of the deceaseds three prior convictions relating to guns;

2.

improperly
    limiting the jurys use of a prior consistent statement made by Tammy Stringer,
    one of the defence witnesses, which indicated that the deceased had a gun at
    the time he was shot; and,

3.

unfairly interfering
    with defence counsels examination of two witnesses.

ISSUE 1:     EXCLUSION
    OF EVIDENCE OF THE DECEASEDS     CONVICTIONS

[13]

Defence
    counsel brought a pre-trial application to introduce the deceaseds criminal
    record, which consisted of three firearms offences:  one count of transfer of a
    firearm, prohibited or restricted weapon without authority; and two counts of possession
    of a prohibited or restricted firearm with ammunition.  In the application,
    defence counsel initially sought to introduce the underlying facts surrounding
    the convictions.  However, he abandoned this part of his application at the
    outset of oral argument on the application.

[14]

The
    Crown brought a cross-application, conditional upon the appellant succeeding on
    his application.  To ensure that the jury had a fair and balanced picture, if
    the defence application were granted, the Crown sought to introduce evidence of
    the appellants disposition for violence, including his criminal record, the
    resultant sentences, and the underlying facts surrounding those convictions. 
    The Crown submitted that the background facts for the appellants aggravated assault
    conviction could not be entered simply by filing that information.  Instead,
    evidence would have to be called from the victims of the aggravated assault. 
    Further, the Crown sought to introduce statements made by the appellant
    regarding his convictions and to refer to the facts relating to a then-outstanding
    robbery charge against the appellant, arising from an incident that took place a
    few months after the deceased was shot and killed.  The Crown argued that this latter
    evidence should be admitted because the appellant had confessed to the offence
    and it was proximate in time to the shooting.

[15]

The
    trial judge dismissed the appellants application, without prejudice to his right
    to renew the application during the trial.

[16]

On
    appeal, the appellant argues that the trial judge erred in excluding evidence
    of the deceaseds convictions.  Specifically, he submits that the trial judge
    erred: (1) by using the wrong test for admissibility of the evidence; (2) in
    finding that the convictions had no probative value; and (3) in finding that it
    would have taken an unreasonable amount of time to introduce the convictions
    into evidence.

[17]

For
    the reasons that follow, I would dismiss this ground of appeal.

A.      THE APPLICATION AND THE RULING



(1)     The Application


[18]

Defence
    counsel at trial argued for the admission of the deceaseds criminal record on the
    basis that the convictions showed a disposition for violence, making it more
    likely that the deceased was in possession of a gun on the night he was shot
    and, therefore, was more likely to have been the aggressor.  If it were more
    likely that the deceased was the aggressor in the altercation with the accused,
    this gave an air of reality to the appellants claims of self-defence and
    provocation.

[19]

To
    assist the court with his submissions on the application, defence counsel filed
    a flow chart entitled Disposition Chart, which contained an overview of his
    reasoning.  The chart shows the following reasoning.  The deceaseds criminal
    record indicated a specific disposition re: guns. The specific disposition
    re: guns led to two inferences:

·

First, it made it more likely that, as a drug dealer, the
    deceased had a gun in the apartment on the night in question, which made it
    more likely that the deceased reached for a gun, and thus made it more likely
    that he was the aggressor.

·

Second, the deceaseds specific disposition re: guns also suggested
    that the deceased was potentially dangerous, which was suggestive that he was
    of bad character. His bad character made it more likely that the deceased
    was the aggressor.

[20]

In
    his oral submissions, defence counsel reviewed case law on the admissibility of
    evidence of a deceaseds previous acts of violence, beginning with
R. v.
    Scopelliti

(1982),

34 O.R. (2d) 524 (C.A.).  On the basis of
Scopelliti
, he argued that the deceaseds criminal record made it more
    likely that he had a gun, which made it more likely that he was the aggressor. 
    I will refer to this as the 
Scopelliti

argument.

[21]

Relying
    on
R. v. Watson
(1996), 30 O.R. (3d) 161 (C.A.), defence counsel also argued
    that because the deceased had a criminal record involving guns, it was more
    likely that he had a gun at the time of the shooting.  I will refer to this as
    the 
Watson
argument.

[22]

Towards
    the end of defence counsels submissions, the trial judge attempted to clarify
    the basis of which defence counsel sought to introduce the evidence:

THE COURT: The purpose, the submission youre making is, is
    that, as you laid out in your chart here, that if [the jury is] aware of the
    criminal convictions for the possession and the sale [of guns] that hes more
    likely to have a gun, hes more likely to be a drug, he was a drug dealer, more
    likely to be the aggressor?

[DEFENCE COUNSEL]: Ultimately, thats the chain of reasoning.

(2)     The Ruling

[23]

The
    trial judge gave thorough reasons for dismissing the application, reported at
R
    v. Jackson
,

[2009] O.J. No. 1642 (S.C.).  In his reasons, he
    includes a summary of the relevant portions of the criminal records of both the
    deceased and the appellant; the background information relating to the
    convictions of both; and the factual allegations surrounding the then-outstanding
    robbery charge against the appellant.

[24]

In
    relation to the
Scopelliti

argument, the trial judge found that
    the deceaseds convictions for possession and sale of weapons three years prior
    to the shooting did not directly link him to acts of violence and lacked the
    requisite proximity in time.  He also noted that the deceased had no
    convictions for violent offences.  Consequently, the trial judge found that the
    convictions did not constitute evidence of acts of violence and did not have
    probative value in terms of the deceaseds disposition for violence.

[25]

The
    trial judge rejected the
Watson

argument on the basis that its
    reasoning did not apply to the case before him.  He noted that in
Watson
,
    the evidence was current, related to the victims invariable habit of carrying
    a concealed gun, and was to be given by a witness who knew of the victims
    habit.  In his view, the evidence of the deceaseds convictions was disposition
    evidence, not evidence of a habit of the deceased.

[26]

The
    trial judge went on to hold that even if he had found the proposed evidence to
    be relevant, he would have excluded it.  At para. 36 of his reasons, he states:

I am acutely aware of the general principle that a trial judge,
    in the interests of fairness to the accused, should permit him to introduce
    evidence which may be relevant to creating a doubt that he is guilty of the
    offence.  I am mindful, that even if I felt the proposed evidence of [the
    deceaseds] convictions was relevant, I have a residual discretion to exclude
    the evidence if I felt the prejudicial effect of the evidence exceeded its
    probative value.

[27]

A
    footnote at the end of the first sentence in para. 36 refers the reader to
R.
    v. Seaboyer
,
[1991] 2 S.C.R. 577, at p. 611.

[28]

The
    trial judge returns to
Seaboyer

in the following paragraph,
    where he sets out and applies the four factors that
Seaboyer

indicates
    should guide a court in determining the admissibility of defence evidence of
    reputation.  Of the four factors, the trial judge found that two were engaged: 
    (1) the danger that the proposed evidence and any evidence in response would
    create a side issue that would unduly distract the jury from the main issue in
    the case; and (2) the likelihood that the evidence would consume an undue
    amount of time.

[29]

At
    para. 39 of his reasons, the trial judge stated that even if he had found that
    the deceaseds criminal convictions had some probative value to show a
    disposition for violence, based on the evidence on the
voir dire
, he
    would not exercise his discretion and admit it because its admission would
    trigger a side issue that would consume an undue amount of time and that would
    distract the jury unduly from the main issue in the case.



B.      ANALYSIS

(1)     Did the Trial Judge use the Wrong Test for Admission
    of the Evidence?

[30]

Relying
    on
Seaboyer
, the appellant points out that relevant defence evidence
    is to be excluded only where the potential prejudice to the trial process of
    admitting the evidence clearly outweighs its value.  He submits that the trial
    judge erred by failing to apply this legal test when determining whether to
    admit the evidence of the deceaseds convictions.  In support of this
    submission, the appellant points to the last line of para. 36 of the trial
    judges reasons, set out above, where the trial judge states he would exercise
    his discretion to exclude the proposed evidence if he found that the
    prejudicial effect of the evidence exceeded its probative value.  This, the appellant
    contends, demonstrates that the trial judge did not appreciate that the proposed
    evidence should have been excluded only where its probative value was
    substantially or clearly outweighed by prejudice to the trial process.  The
    appellant contends that the trial judges failure to articulate the high
    threshold for excluding relevant defence evidence suggests that the evidence
    was excluded for reasons of trial efficiency.

[31]

I
    do not accept this submission.

[32]

The
    record shows that counsel fully and fairly argued this application with extensive
    reference to the correct legal principles.  In light of that and the trial
    judges repeated reference to
Seaboyer
in his reasons, there can be no
    doubt that he was fully alive to its dictates.  Indeed, as he states in the
    first sentence of para. 36 of his reasons, he was acutely aware of the
    general principle operating in favour of the admission of relevant defence
    evidence.

[33]

Understood
    in this context, it is clear that the trial judge was not operating under a
    mistaken view of the threshold for admissibility of defence evidence.  The
    impugned sentence in para. 36 of the reasons comes after the trial judges finding
    that the proposed evidence had no probative value.  While the wording of the
    impugned sentence could be improved, in my view, read in context, it reflects
    the trial judges conclusion that even if the proposed evidence were to have
    some probative value, that minimal value was significantly outweighed by the
    prejudicial effect of its admission.

(2)     Did the Trial Judge Err in His Assessment of the
    Probative Value of the Evidence?

[34]

The
    appellant submits that the trial judge erred in finding that the deceaseds convictions
    had no probative value.

[35]

I
    do not accept this submission.

[36]

As
    I have explained, with the benefit of hindsight, it can be seen that defence
    counsel argued the application on a two-pronged basis.  First, he advanced the
Scopellitti

argument, to the effect that the convictions showed that the deceased had a
    propensity for violence.  Second, he advanced the
Watson
argument, to
    the effect that the convictions showed that the deceased had a propensity to
    possess firearms.

[37]

The
    trial judge dealt with both prongs.

[38]

In
    rejecting the
Scopelletti

argument, the trial judge found that
    the deceaseds convictions for possession and sale of firearms did not directly
    link him to acts of violence.  He noted that the convictions were dated and that
    the deceased had no convictions for violent offences.  He concluded that the
    convictions did not have any probative value in terms of showing that the
    deceased had a propensity for violence.

[39]

I
    see no error in this aspect of the trial judges reasons.  Possession and sale of
    firearms are not acts of violence.  Furthermore, it will be recalled that in
    his reasons, the trial judge set out the underlying facts for the convictions. 
    A review of those facts shows that they deal with the deceaseds business of
    selling handguns.  They do not show the deceased involved in acts of violence
    or using weapons.  And, as the trial judge noted, the convictions were dated. 
    The deceaseds convictions were in 2002 and the shooting took place in December
    2006.

[40]

As
    for the
Watson

argument, the trial judge rejected it on the
    basis that its reasoning did not apply to the case before him.

[41]

Again,
    I see no error in the trial judges reasoning or conclusion.  As the Crown
    submitted, the facts in this case are a far cry from those in
Watson
,
    where the evidence showed that the deceased was habitually in possession of a
    firearm.  In this case, the defence was attempting to introduce disposition
    evidence, not evidence of the deceaseds habits.  Unlike in
Watson
, there
    was no evidence that the deceased always carried a gun.  In addition, as has
    been mentioned, the proposed evidence was not current and did not involve the deceaseds
    use of guns.  Moreover, it was not going to be tendered by a witness who knew
    the deceased and his habits.

[42]

Furthermore,
    at the time the application was heard, it was clear that ample evidence would
    be before the jury showing that the deceased was actively involved in the drug
    trade, as a dealer.  It is notorious that drug dealers often carry hand guns. 
    In this context, the convictions would have added little, if anything.

(3)    Did the Trial
    Judge Err in His Assessment of the Time Involved?

[43]

The
    appellant contends that this whole matter could have been dealt with in a
    matter of seconds by simply admitting the convictions.

[44]

I
    do not agree.

[45]

Admission
    of the deceaseds convictions would have put his character in issue.  As defence
    counsel acknowledged at the time of the application, this means that the
    appellants character would have been in issue as well.  The Crowns
    cross-application would have proceeded.  In it, the Crown sought to adduce the
    appellants full criminal record; the evidence underlying the appellants
    convictions; and the alleged facts surrounding the outstanding robbery charge. 
    It may very well have succeeded in being permitted to adduce much more evidence
    of the appellants violent past than it was permitted to lead pursuant to the
Corbett
[1]

ruling.  As this court said in
R. v. Williams
, 2008 ONCA 413, 233
    C.C.C. (3d) 40, at para. 58:

[T]he Crown may lead reply evidence of the accuseds propensity
    for violence  where it is necessary to enhance fairness and ensure that the
    trier of fact has a balanced, not a distorted picture of what occurred between
    the deceased and the accused and of their respective dispositions for
    aggression.  [Citations omitted.]

[46]

Consequently,
    if the deceaseds convictions had been admitted into evidence, the door would
    have been opened to the Crown to adduce evidence of all of the appellants offences
    involving guns and violence, including his convictions as a youth for two
    robberies, assault with a weapon, and careless use of a firearm may have been
    admitted.

[47]

Further,
    the door would have been opened to the Crown to introduce the facts underlying
    the appellants convictions, including his aggravated assault conviction
    stemming from an attempted murder incident in which the appellant shot a number
    of people.

[48]

And,
    the door would have been opened to the Crown to adduce the factual allegations
    underlying the appellants then-outstanding robbery charge, in which the
    appellant robbed a convenience store and threatened to kill the clerk.

[49]

Adducing
    the facts underlying both the deceaseds and the appellants convictions would
    have protracted the trial and distracted the jurors from the issues before them. 
    In this regard, it is worthy of note that defence counsel abandoned his initial
    request in the application to introduce the facts underlying the deceaseds
    convictions precisely because he thought their introduction would have taken
    the jurys attention away from the facts of the charge which the appellant
    faced and in order to dampen the Crowns chances of introducing the facts
    underlying the appellants convictions.

[50]

All
    of these considerations were before the trial judge.  It is these
    considerations to which the trial judge is referring when he stated that
    admission of the proposed evidence would trigger a side issue that would
    consume an undue amount of time and unduly distract the jury from the main
    issue in the case.  And, in my view, it was this body of evidence to which the
    trial judge was referring when he found that introduction of the deceaseds
    convictions would occasion significant prejudice to the appellant.

[51]

For
    all of these reasons, in my view, there is no basis on which to interfere with
    the trial judges ruling to exclude evidence of the deceaseds convictions.

ISSUE 2:     USE OF THE PRIOR CONSISTENT STATEMENT

[52]

The
    appellants second ground of appeal arises from a statement allegedly made shortly
    after the shooting by Tammy Stringer to Jennifer Hall, both of whom were in the
    apartment at the time of the shooting.  The appellant submits that the trial
    judge erred by not allowing the jury to consider the statement to rebut the
    Crowns allegation of recent fabrication by Ms. Stringer.

[53]

For
    the reasons that follow, I reject this submission.

A.      THE EVIDENCE AND THE INSTRUCTION

(1)     Jennifer Halls Evidence

[54]

Jennifer
    Hall was in the apartment taking a shower at the time of the shooting.  She
    only became aware of the shooting when Ms. Stringer entered the bathroom and
    told [her] to get out of the shower because someones been shot.

[55]

In
    a statement to the police on December 14, 2006, shortly after the shooting, Ms.
    Hall said that when Ms. Stringer entered the bathroom moments after the
    shooting, Ms. Stringer said Burlington [the appellant] went towards the guy
    with his gun and the other guy [the deceased] took out his gun out of his pants
    and started firing (the Statement).

[56]

Ms.
    Hall was called as a Crown witness at trial.

[57]

Defence
    counsel sought permission to elicit the Statement from Ms. Hall in
    cross-examination.  He anticipated that he would call Ms. Stringer as a
    witness, and that Ms. Stringers trial testimony would be that she saw the
    deceased reach for something in his waistband, and that she thought there was
    going to be a gunfight.  Defence counsel also anticipated that the Crown would
    allege recent fabrication in respect of this aspect of Ms. Stringers evidence
    and argued that he was entitled to introduce the Statement, through Ms. Hall, as
    a prior consistent statement to rebut that allegation.  Defence counsel further
    argued that he could put the Statement to Ms. Hall pursuant to s. 10 of the
Canada
    Evidence Act
, R.S.C. 1985, c. C-5.

[58]

Crown
    counsel argued against admission of the Statement on a number of grounds, one
    of which was that the Statement might be used to improperly bolster Ms.
    Stringers credibility.

[59]

After
    receiving both oral and written submissions, the trial judge ruled that defence
    counsel could put the Statement to Ms. Hall.  He observed that Ms. Halls
    credibility was important to the Crowns case and that the defence was entitled
    to test her credibility.  Further, he held that pursuant to s. 10 of the
Canada
    Evidence Act
, the defence had the right to cross-examine Ms. Hall on the
    written statement she had given to the police.

[60]

In
    response to the Crowns concern that the Statement might be used improperly to
    bolster Ms. Stringers credibility, the trial judge stated that if Ms. Stringer
    testified and her evidence was consistent with that of Ms. Halls, he would
    hear submissions on how to instruct the jury in respect of the proper use of
    the Statement.

[61]

During
    cross-examination, defence counsel put the following portion of Ms. Halls police
    statement to her:

Q.      Why do you know  there was two [guns]?

A.      Because
    I was told that um Burlington [the appellant] went towards the guy with his gun
    and the other guy [the deceased] took out his gun out of his pants and started
    firing.

Q.      Did you hear the gun shots?

A.      No actually I didnt.

Q.      Where were you?

A.      I was
    in the shower and that is why  I cant believe I didnt hear them. It started
    in the living room I guess.

Q.      Who told you this?

A.      Tammy [Stringer].

[62]

Although
    Ms. Hall did not initially remember the Statement, after having her memory
    refreshed she adopted this part of her statement to the police.

(2)     Tammy Stringers
    Evidence

[63]

The
    police interviewed Ms. Stringer on December 14, 2006, and again on December 19,
    2006.  In neither interview did Ms. Stringer tell the police that she had seen
    the deceased reaching for something in his waistband at the time of the
    shooting.  She gave this information for the first time immediately prior to
    the preliminary inquiry, nearly two years after the offence.  She gave that
    information again at the preliminary inquiry.

[64]

At
    trial, Ms. Stringer was called as a defence witness.  In examination-in-chief,
    she testified that she believed the deceased had been reaching for something in
    his waistband at the time of the shooting.  She specifically testified that she
    could not say whether it was a gun for which he was reaching.

Q.      Okay.
    Was [the deceased] moving his hands about or

A.      Yeah,
    he was moving his hands about, he was putting his hands in his waist or
    somewhere, like I thought he had a gun too.



Q.      Okay.
    And you said something about a gun in a waist  sorry, could you elaborate on
    that?

A.      I
    didnt say anything about a gun in a waist, I said he was reaching inside
    himself, like you know, like reaching  like I thought he was gonna pull out a
    gun too.

[65]

Defence
    counsel returned to this topic later, again asking Ms. Stringer about what she had
    seen at the time of the shooting:

Q.      All
    right. And you testified that while he was saying that, he was reaching inside
    his waist for a gun or something; thats your testimony?

A.      No its
    not. I didnt say he was reaching for a gun, I said it perceived to me he was
    reaching for a gun, a weapon

Q.      Your perception

A.       he
    couldve been reaching for his toothbrush, for all I know. But as far as Im
    concerned, he was reaching for something; because he was going to disarm
    whoever had a gun in that house and had pulled it on him.

[66]

During
    cross-examination, the Crown put to Ms. Stringer the timing of her disclosure
    that the deceased had been reaching for something in the waistband of his pants,
    alleging recent fabrication.

[67]

Defence
    counsel sought to put extracts of Ms. Stringers preliminary inquiry transcript
    to her in re-examination on the basis that she had been cross-examined as to an
    omission or inconsistency with a prior statement.

[68]

The
    trial judge rejected that request for two reasons.  First, in cross-examination
    the Crown had not challenged Ms. Stringer with respect to an omission or
    inconsistency.  The Crowns questioning had not suggested that Ms. Stringer
    gave the information about the deceased reaching towards the waistband of his
    pants, as if for a weapon, for the first time at trial.  Rather, the Crowns
    cross-examination indicated that Ms. Stringer had revealed the information in a
    meeting with the police and the Crown just prior to the preliminary inquiry.  Second,
    defence counsel had already drawn Ms. Stringers attention to this aspect of her
    preliminary inquiry evidence during cross-examination pursuant to s. 9(2) of
    the
Canada Evidence Act
.
[2]


[69]

Defence
    counsel then moved to re-examine Ms. Stringer on the Statement to rebut the
    Crowns allegation of recent fabrication.

[70]

The
    trial judge allowed the motion, saying:

I am satisfied that in re-examination, under the umbrella of
    recent fabrication, that a question can be posed to Ms. Stringer with respect
    to any statement she recalls having made to Ms. Hall immediately after the
    shooting.

[71]

A
voir dire
was then conducted to determine what Ms. Stringer could
    remember having said to Ms. Hall on the night in question.

[72]

On
    the
voir dire
, Ms. Stringer testified as follows:

Q.      Ms.
    Stringer, do you recall making any statement in the washroom to Ms. Hall, just
    after the shooting?



A.      Yes.

Q.      Okay. And what was that statement, maam?

A.      I said
    something like, Come on weve got to go. Do you know just what happened here?



Q.      And do you recall what you told her?

A.      I said, Come on weve got to get out of here.

Q.      Okay.

A.      Do you realize what just happened here?

Q.      All right. And did you say anything else to her?

A.      I dont think so.

[73]

Defence
    counsel then said Well, there you go, Your Honour.  He did not ask Ms.
    Stringer any questions about the Statement in re-examination.

(3)     Instruction on
    Use of the Statement

[74]

In
    his closing submissions, defence counsel reviewed the Statement and said that
    it could be used only to evaluate Ms. Halls credibility, and not for the truth
    of its contents.

[75]

Crown
    counsel objected to the defence closing on this point.  He argued that although
    defence counsel said the Statement could be used only in respect of Ms. Halls
    credibility, the way in which defence counsel had presented the Statement left
    the impression that it could be considered for the truth of its contents.

[76]

The
    trial judge agreed, stating that defence counsels use of the Statement

was somewhat excessive. [Defence counsel] not only burned the
    words into [the jurors] minds by putting it on the screen, [he] highlighted
    some of the words and read [so as]to distinguish them from other words.

[77]

The
    trial judge instructed the jury as follows:

I specifically direct you to consider this statement not as the
    truth of its contents (that is, not as evidence of what actually happened) but
    it can only be used by you to consider the credibility of the evidence of
    Jennifer Hall. I further remind you that Tammy Stringer gave no evidence to
    this effect. This is a statement that demonstrates why hearsay evidence is not
    admissible in our courts. The person who allegedly told her that statement is
    not available to be cross-examined. The statement itself is inherently
    inaccurate. There is no evidence before the court that two guns were fired.
    There is no evidence that [the appellant] went towards the deceased with his
    gun. There is no evidence that the deceased took a gun out of his pants and
    started firing.
You are to ignore the statement save and except if it helps
    you to assess the credibility of Jennifer Hall
. [Emphasis added.]

[78]

No
    objection was taken to this part of the charge.

B.      ANALYSIS

[79]

In
    his factum, the appellant framed the second ground of appeal in two different ways. 
    Initially, this ground is stated as:

The trial judge erred in excluding a prior consistent
    statement, which resulted in the jury being left with the impression that the
    first time Stringer said the deceased had reached towards his waistband, was
    months after the shooting.

Later, the ground is stated
    to be:

Did the trial judge err in not allowing the jury to consider
    Stringers statement to rebut an allegation of recent fabrication?

[80]

The
    first formulation of this issue rests on a factual inaccuracy  the trial judge
    did not exclude the Statement.  It will be recalled that he permitted defence
    counsel to elicit the Statement through Ms. Hall.  Thus, the jury heard Ms.
    Halls evidence about Ms. Stringers alleged statement to her shortly after the
    shooting.

[81]

Furthermore,
    the trial judge expressly ruled that defence counsel was entitled to use the
    Statement in Ms. Stringers re-examination to rebut the Crowns allegation of
    recent fabrication.  However, on the
voir dire
, Ms. Stringer could not
    remember having made the Statement.  All she recalled was telling Ms. Hall that
    they had to get out of the apartment.  Defence counsel then chose to not pursue
    the Statement with Ms. Stringer in re-examination.  Nothing precluded defence
    counsel from going further, as for example, by trying to refresh Ms. Stringers
    memory, just as he had done with Ms. Hall when he presented Ms. Hall with her
    statement to the police.

[82]

The
    fact that defence counsel did not choose to pursue the Statement in
    re-examination does not mean that the trial judge prohibited him from doing so
    or that the trial judge excluded the Statement.  To the contrary, as I have
    explained, the trial judge expressly ruled that defence counsel could introduce
    the Statement and use it both to challenge Ms. Halls credibility and to rebut
    the allegation of recent fabrication.

[83]

The
    appellant also mistakenly suggests that the Crown misled the jury in its
    closing by saying that Ms. Stringers memory of the deceased reaching for a gun
    was a revelation that came to her just prior to the preliminary hearing.  What
    the Crown said in closing was that Ms. Stringer did not tell anyone
in
    authority

about the deceased reaching for a gun until just prior to the
    preliminary inquiry.  That is correct.  Ms. Stringer was interviewed by the
    police twice:  on December 14 and December 19, 2006.  Ms. Stringer did not tell
    the police in either interview that the deceased had a gun or was reaching into
    his pants for a gun or other weapon.  The first time that she told someone in
    authority that the deceased was reaching into his pants at the time of the
    shooting was when she was being interviewed by the Crown and police in
    preparation for the preliminary inquiry.

[84]

I
    turn then to the heart of the appellants submission on this ground of appeal, namely,
    that the trial judge erred in not allowing the jury to consider the Statement
    to rebut an allegation of recent fabrication.  I reject this submission because
    it rests on the false premise that Ms. Stringer made a prior
consistent

statement.

[85]

It
    is well established that although prior consistent statements are generally
    inadmissible because they lack probative value, an exception to this general
    exclusionary rule can be made to rebut an allegation of recent fabrication:
R.
    v. Stirling
, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5.  A prior
    consistent statement has probative value in the context of an allegation of
    recent fabrication where the statement can illustrate that the witnesss story
was the same
even before a motivation to fabricate arose:
Stirling
,
    at para. 5 (emphasis added).

[86]

In
    this case, the Statement could not illustrate that Ms. Stringers story was the
    same because the words that Ms. Hall attributed to Ms. Stringer in the
    Statement and Ms. Stringers trial testimony are materially different.

[87]

In
    the Statement, Ms. Stringer is said to have told Ms. Hall that she saw the
    deceased take a gun out of his pants and start firing it.  Ms. Stringers trial
    testimony was that she saw the deceased reach towards the waistband of his
    pants, as if to withdraw a weapon.  Ms. Stringer did not testify that she saw
    the deceased with a gun.  She did not testify that she saw the deceased take a
    gun out of his pants.  Nor did she testify that she saw the deceased fire a
    gun.  Her trial testimony was clear:  all she saw was the deceased reach
    towards the waistband of his pants and, from that movement, she perceived that
    the deceased was reaching for some kind of a weapon.

[88]

The
    differences between the story related in the Statement and Ms. Stringers trial
    testimony are so significant that the Statement cannot be seen to meet the
Stirling
test, which requires that the witness story be the same.  This
    conclusion is inescapable, particularly when the Statement is considered in the
    context of this trial, where the question whether the deceased had a gun at the
    time of the shooting was a critical issue.

[89]

Accordingly,
    the trial judge made no error in not instructing the jury that they could use
    the Statement to rebut an allegation of recent fabrication.

[90]

I
    would add that this ground of appeal also fails to recognize the context within
    which the instruction was given.  The trial judge did not, as the appellant
    contends, explicitly instruct the jury to not consider the Statement in respect
    of Ms. Stringers credibility.  The instruction was given for two reasons. 
    First, to let the jury know that the Statement could be used when assessing Ms.
    Halls credibility.  Second, and very significantly, the instruction was
    designed to correct the impression left by defence counsels closing that the Statement
    could be used for the truth of its contents.  As all counsel have acknowledged,
    both here and at trial, a prior consistent statement is not admissible for the
    truth of its contents.  The trial judge was right to instruct the jury that
    they could not use the Statement for that purpose.

[91]

Accordingly,
    in my view, this ground of appeal must fail.

ISSUE 3:     ALLEGED
    INTERFERENCE WITH DEFENCE COUNSELS     CROSS-EXAMINATION

[92]

The
    appellant submitted that the trial judge improperly interfered with defence
    counsels cross-examinations of two witnesses.

[93]

The
    court found it unnecessary to hear from the Crown on this issue.

[94]

I
    accept the Crowns characterization of the trial judges two very brief
    interventions as innocuous questioning on a marginal issue.  Accordingly, I
    would reject this ground of appeal.

THE SENTENCE APPEAL

[95]

The
    appellant received a life sentence, with a 15-year period of parole
    ineligibility.  He submits that the trial judge erred in failing to acknowledge
    that his culpability was reduced by his consumption of crack cocaine and
    alcohol, and Mr. Campbells aggressiveness just before he was shot.  He argues
    that his intoxication at the time of the offence should have been considered as
    a mitigating factor in sentencing.  He submits that an appropriate period of
    parole ineligibility for a case of this nature is 10 to 13 years.

[96]

I
    see no error in the imposition of a 15-year period of parole ineligibility.

[97]

The
    appellant committed the offence just five weeks after being released from
    custody on a prior offence, in circumstances that violated multiple release
    conditions, including four firearms prohibitions.  At trial, defence counsel conceded
    that shooting Mr. Campbell in the back as he fled was aggravating.  Further,
    the appellant has a serious criminal record characterized by escalating
    violence, including numerous convictions for guns offences and robberies.  Earlier
    sentences, including penitentiary time for a shooting incident, have failed to curb
    his recidivism.  And, the appellant was involved in the aborted attempt to rob
    Mr. Campbell, which ultimately resulted in Mr. Campbells murder.  Finally, I would
    simply note that in imposing the 15-year period of parole ineligibility, the
    trial judge accepted the guidance of 11 jurors who recommended a minimum of 15
    years ineligibility.

DISPOSITION

[98]

Accordingly,
    I would dismiss the conviction appeal and, while I would grant leave to appeal
    sentence, I would also dismiss the sentence appeal.

E.E. Gillese
    J.A.

I agree. Robert J. Sharpe J.A.




Rosenberg J.A. (Dissenting):

[99]

I
    have had the opportunity to read the reasons of Justice Gillese for dismissing
    this appeal. Those reasons are compelling and I am convinced she is right on
    the second and third issues.

[100]

I respectfully
    disagree with her reasons only on the issue of the admissibility of the
    evidence of the deceaseds prior convictions for firearms offences. For the
    following reasons I would allow the appeal and order a new trial.

ISSUE 1: Admissibility of the deceaseds prior firearms
    convictions

A.

background

[101]

Justice Gillese
    has outlined the facts in this case. However, it is worth stressing a few
    matters. The claim of self-defence turned almost entirely on the appellants
    evidence. His credibility was crucial, and any relevant evidence that could
    support his credibility was important. A pivotal issue to the self-defence claim
    was whether the deceased was armed. The appellant claimed that, in the course
    of an aggressive encounter, the deceased pulled out a gun. In response, the
    appellant shot the deceased. The appellant testified that he later picked up
    the deceaseds gun and disposed of it. There was no other evidence that the
    deceased was in possession of a gun that night. Any evidence that could
    legitimately support an inference that the deceased was in possession of a gun
    at the critical time was, therefore, of significant importance to the
    self-defence claim.

[102]

In his reasons,
    reported at [2009] O.J. No. 1642, the trial judge held, at para. 25, that
    neither the deceaseds convictions nor their underlying facts linked him
    directly to acts of violence, that the deceased had no prior convictions for
    acts of violence and that the convictions lacked the required proximity in
    time. He went on to hold, at para. 36, that the prior convictions constitute
    at most a disposition to possess a handgun. Then, at paras. 37 to 39, the trial
    judge considered the probative value and prejudicial effect of the evidence:

37
In
R. v. Seaboyer
,
    supra, McLachlin J. listed four factors a judge should take into account in
    determining the admissibility of evidence and in doing so, she referred to
McCormick's
    Handook of the Law of Evidence
, 2nd ed. (1972) at pages 438-440. Those four
    factors, which are general principles that ought to guide a court in
    determining the admissibility of defence evidence of reputation, may be
    summarized as follows:

1. The danger that the evidence will arouse the jury's
    emotions of prejudice, hostility or sympathy. I am satisfied that the proposed
    evidence would not unduly engage any of these concerns.

2. The danger that the proposed evidence and any evidence in
    response will create a side issue that will unduly distract the jury from the
    main issue in the case. I find that this is a real concern in this matter.

3. The likelihood that the evidence will consume an undue
    amount of time. I find that this is a significant concern in this case.

4. The danger of unfair surprise to the opponent who had no
    reasonable ground to anticipate the issue and was unprepared to meet it. I do
    not believe this would be a concern in this case.

38
I find that the proposed
    evidence of Mr. Campbell's criminal convictions does not have significant
    probative value to prove that he had a disposition for violence. I am not
    satisfied that his convictions would assist the jury in arriving at a just
    verdict with respect to the defence of self defence.

39
Even if I found that the
    criminal convictions had some probative value to show a disposition for
    violence, based on the evidence provided on this
voir dire
, I would not
    exercise my discretion to allow the evidence to be admitted because it would
    trigger a side issue that would consume an undue amount of time and that would
    distract the jury unduly from the main issue in the case. [Footnote omitted.]
    [Emphasis added.]

[103]

I disagree with
    the reasons of Gillese J.A. in holding that the trial judge did not err in refusing
    to permit the appellant to adduce evidence of the deceaseds convictions for
    firearms related offences. These are my reasons for that conclusion.

B.

analysis

(1)

Determining the relevance of the proposed disposition evidence in light
    of
Scopelliti

[104]

As is well
    known, in
R. v. Scopelliti
(1982), 34 O.R. (2d) 524, this court held
    that uncommunicated acts of violence were admissible at the accuseds trial to
    support a claim of self-defence. Even though the accused in that case was
    unaware of the deceaseds prior acts of violence, those acts were held to be
    admissible to show the probability of the deceased having been the aggressor
    and to support the accuseds evidence that the deceased attacked him. In
    holding that the evidence was admissible, Martin J.A., speaking for the court,
    took a principled approach to the admissibility of disposition evidence. His
    reasoning is summarized in this passage, at p. 536:

However the admission of such evidence accords in principle
    with the view expressed by this Court that the disposition of a person to do a
    certain act is relevant to indicate the probability of his having done or not
    having done the act. The law prohibits the prosecution from introducing
    evidence for the purpose of showing that the
accused
is a person who by
    reason of his criminal character (disposition) is likely to have committed the
    crime charged, on policy grounds, not because of lack of relevance. There is,
    however, no rule of policy which excludes evidence of the disposition of a third
    person for violence where that disposition has probative value on some issue
    before the jury: see
R. v. McMillan
(1975), 7 O.R. (2d) 750, 23 C.C.C.
    (2d) 160 at 167, 29 C.R.N.S. 191; affirmed [1977] 2 S.C.R. 824, 33 C.C.C. (2d)
    360, 73 D.L.R. (3d) 759;
R. v. Schell and Paquette
(1977), 33 C.C.C.
    (2d) 422 at 426.

[105]

Thus, the
    admissibility of disposition evidence turns not on the particular label
    attached to it, but on its relevance to the issues in the case. In
Scopelliti
,
    the accused sought to admit the evidence of the deceaseds prior acts of
    violence to show, in a self-defence case, that it was more likely that the
    unarmed deceased were the aggressors. But, evidence of propensity is nothing
    more than circumstantial evidence, and it can be admissible for a myriad of
    reasons. Doherty J.A. made this point in
R. v. Watson
(1997), 30 O.R.
    (3d) 161 (C.A.), where self-defence was not raised and the evidence sought to
    be admitted was evidence of habit rather than mere disposition. As he said, at
    p. 174: [l]ike evidence of habit, evidence of disposition can constitute
    circumstantial evidence of conduct on a specific occasion.

[106]

The relevance of
    the prior convictions becomes clear when seen in the light of the position
    taken by defence counsel on the application. While it may have been defence
    counsels ultimate aim to establish that the deceased was the aggressor, the
    record shows that counsel sought to have the evidence adduced for the narrower
    purpose of showing the likelihood that the deceased was in possession of a
    handgun.

[107]

These are not
    mutually exclusive positions. Defence counsel made this point in his
    submissions on the
voir dire
:

So at the end of the day, the deceased has a criminal record
    for a gun, therefore hes more likely to have, in Jacksons case, therefore,
    hes more clearly, hes more likely, okay; to what degree more likely, I dont
    know. And I dont, I dont, well, Im not speculating, and therefore, its more
    likely that he had a gun. And remember, hes a drug dealer, its more likely he
    had a gun when he was in Apartment 1003 on December 13
th
, which
    therefore makes it more likely that what Tammy Stringer is saying, that she
    thought it was going to be a gunfight, is actually not some concoction but an
    actual, you know, a credible assertion by a third party, which makes it
    therefore likely that what Troy Michaud is saying about the, about the deceased
    moving aggressively towards the accused was more likely because youre going to
    be a bit more emboldened if youve got a gun, which also makes it more likely
    that when the accused testifies and states, I thought he was reaching for a
    gun that his version of events becomes more believable and therefore this type
    of disposition evidence is relevant along those likely lines of inquiry to
    self-defence.

[108]

Thus, evidence
    that the deceased was in possession of a gun could be used by the jury as
    circumstantial evidence that, at the critical moment, he reached for a gun.
    This, in turn, would support the appellants self-defence claim.

[109]

Even if defence
    counsel was overreaching in his ultimate position, the trial judge should have
    considered whether the evidence was admissible on the more narrow basis
    advanced by the defence: see e.g.
R. v. Abbey
, 2009 ONCA 624, (2010), 97
    O.R. (3d) 330 at para. 101. In my view, merely finding that the facts of this
    case are not as compelling as in
Watson
does not answer the
    admissibility question. I will return to
Watson
below.

(2)

The test for excluding probative defence evidence

[110]

I also differ
    with Justice Gillese in her assessment of the test used by the trial judge for
    excluding probative defence evidence.

[111]

As Justice
    Gillese properly points out the trial judge referred to
Seaboyer
in
    identifying the factors a judge should consider in determining the
    admissibility of defence evidence of reputation. Unfortunately, his only
    statement of the balancing test it entails was drawn from the trial decision in
R. v. Yaeck
, [1989] O.J. No. 3002 (S.C.J.), which he summarized, at
    para. 24, as follows: The evidence which is proposed for admission must have
    significant probative value to prove a disposition for violence. At para. 38
    of his reasons, the trial judge stated that he found the evidence of the
    deceaseds criminal conviction does not have significant probative value.

[112]

However, on the
    appeal in
Yaeck,
this court held that the trial judge had stated too
    strict a test and that the test for admissibility is not whether the evidence
    had significant probative value, but whether it had sufficient probative value
    for the purpose for which it is tendered to justify its admission: (1992), 6
    O.R. (3d) 293 at 310, citing
Scopelliti
at 539.

[113]

Further, leaving
    aside the use of significant probative value as the test, the trial judge
    appeared to use a simple balancing test, such as would apply to Crown evidence
    but does not apply to defence evidence. He said this, at para. 36:

I am mindful, that even if I felt the proposed evidence of Mr.
    Campbells convictions was relevant, I have a residual discretion to exclude
    the evidence
if I felt the prejudicial effect of the evidence exceeded its
    probative value
. [Emphasis added.]

[114]

Again, as stated
    in
Seaboyer
and made clear in
Watson
, at p. 176:

Where the evidence found to be relevant is offered by the
    defence in a criminal case, it will be excluded  only where the prejudice
    substantially outweighs the probative value.

[115]

Despite the
    several references to
Seaboyer
in the trial judges reasons, I am
    convinced that he did not use the correct test.

(3)

Probative Value

[116]

I have already
    dealt, to some extent, with the question of whether the prior convictions were
    probative of the deceaseds disposition for acts of violence. As I have said,
    the evidence should have been dealt with on the narrower basis of whether it
    showed that the deceased had a disposition to carry firearms. In my view,
    evidence that the deceased had one conviction for transferring a firearm and
    two convictions for possessing restricted firearms with ammunition had
    sufficient probative value on the issue of whether he had a disposition for
    carrying firearms.

[117]

The trial judge
    concluded that the evidence of the prior convictions had no probative value. He
    did so because the convictions were from several years earlier and did not
    constitute evidence of acts of violence. I disagree with this analysis.

[118]

I deal first
    with the time gap. The principle reason for excluding disposition evidence on
    the basis of the passage of time is that the persons character may have
    changed in the intervening period: see
R. v. Handy
, 2002 SCC 56, [2002]
    2 S.C.R. 908 at para. 122. Thus, it is necessary to closely examine the
    possible reasons for the gap. In this case, the gap between the events giving
    rise to the prior firearms convictions and the present shooting was
    approximately four years, from October 2002 to December 2006. However, for much
    of this time the deceased was in pre-sentence custody (nine months) and
    thereafter serving two thirds of a two-year sentence of imprisonment. It is not
    disputed that for at least some of the time following his release he was
    dealing in drugs. In my view, therefore, it cannot be said that the deceased
    must have changed his character such that the prior convictions are not still a
    potentially reliable indicator of his disposition for carrying firearms.

[119]

Justice Gillese
    points out that there was other evidence to support the defence theory because
    there was evidence that the deceased was a drug dealer and it is notorious that
    drug dealers often carry handguns. She therefore infers that the convictions
    would have added little, if anything, to the defence case. I do not agree. In
    any event, as I understand the record, the only evidence to this effect was
    from Troy Michaud, who testified that when he was a drug dealer he carried a
    firearm. While this was not unhelpful to the defence, the only evidence aside
    from the appellants that the deceased carried a gun would have been in the
    deceaseds convictions for firearms offences. Moreover, once it is accepted
    that evidence that drug dealers carry handguns is admissible and probative on
    the issue of whether the deceased was armed, evidence that this particular drug
    dealer has carried firearms in the recent past must also be probative.

[120]

In
Scopelliti,
at p. 538, Martin J.A. put the test for admissibility in the context of that
    case in the following terms:

I agree, of course, that evidence of previous acts of violence
    by the deceased, not known to the accused, must be confined to evidence of
    previous acts of violence
which may legitimately and reasonably assist the
    jury in arriving at a just verdict with respect to the accused's claim of
    self-defence
. To exclude, however, evidence offered by the accused which is
    relevant to prove his innocence would not, in my view, be in the interests of
    justice. [Emphasis added.]

[121]

The only other
    condition of admissibility adopted by Martin J.A. was that there be some other
    appreciable evidence of the deceaseds aggression on the occasion in question,
    lest the evidence of the deceaseds bad character be taken as an excuse for the
    killing: see
Scopelliti
at p. 535. That evidence could have been found
    in the expected evidence of Tammy Stringer.

[122]

I agree with the
    trial judge and Gillese J.A. that
Watson
is a different case than this.
    It involved evidence as to the deceaseds habit of carrying a gun, rather than
    disposition, and was not a self-defence case. However, in my view, those
    differences are not significant and the reasoning in that case assists the
    appellants case.

[123]

In
Watson
,
    in which the issue was whether the accused was an aider and abetter to a murder
    actually committed by two coaccuseds, the evidence was offered in support of
    the proposition that the victim was armed and was killed in a spontaneous
    gunfight with one of the accuseds confederates. This inference, if accepted,
    would make it less likely that the deceased was killed as part of a plan to
    execute the deceased to which the accused was party.

[124]

As Doherty J.A.
    pointed out, at p. 172, the proposed evidence had to pass through two steps in
    order to be relevant:

1.

Does the fact
    that the deceased always carried a gun make it more likely that he was in
    possession of a gun when he was shot?

2.

Does the fact
    that the deceased was in possession of a gun when he was shot make it less
    likely that the appellant was party to a plan to kill or do harm to the
    deceased, formed some time prior to his arrival with Headley and Cain at the
    rental unit?

[125]

A similar
    reasoning process applies here, albeit with some modifications:

1.

Does the fact
    that the deceased was convicted of three firearms offences make it more likely
    that he had a disposition to carry a firearm?

2.

Does the fact
    that the deceased had a disposition to carry a firearm make it more likely that
    he was in possession of a gun when he was shot?

3.

Does the fact
    that the deceased was in possession of a gun when he was shot make it more
    likely that he had drawn the gun when he was shot?

[126]

I would answer
    all three questions in the affirmative. Convictions for three firearms offences
    based on the events of two separate incidents in the recent past does make it
    more likely that the deceased had a disposition to carry a firearm. In turn,
    that disposition makes it more likely, in the way contemplated by an
    admissibility inquiry, that the deceased had a firearm when he was shot.

[127]

With respect to
    the trial judges conclusion that the proposed evidence did not show acts of
    violence, it is true that the fact that the deceased was in possession of a gun
    when he was shot is not directly linked to the question of whether he drew his
    gun at the critical time. However, a logical chain of inferences leads to the
    conclusion that it does make that fact more likely: see e.g.
Watson
, at
    p. 173.

[128]

Moreover, the
    evidence of the prior convictions did not stand alone. It had to be considered
    with the expected evidence of Ms. Stringer and Mr. Michaud.

[129]

Admittedly,
    evidence of habit can be stronger than evidence merely showing a disposition,
    but it has never been the case that evidence showing a particular disposition
    of the deceased must reach the level of habit to be probative. As Doherty J.A.
    said in
Watson
at p. 174:

Like evidence of habit, evidence of disposition can constitute
    circumstantial evidence of conduct on a specific occasion. The inferences necessary
    to render disposition evidence relevant to prove conduct on a specific occasion
    may be more difficult to draw than those required where evidence of habit is
    tendered.

[130]

In the context
    of the issues in this case, the prior convictions could have legitimately and
    reasonably assisted the jury in arriving at a just verdict. This evidence,
    together with Ms. Stringers evidence and the appellants evidence could have
    led the jury to find that the deceased did have a firearm. Such a finding would
    significantly strengthen the self-defence claim.

(4)

Prejudicial Effect

[131]

The
    admissibility of disposition evidence is not determined by its probative value
    alone. If the prejudicial effect of admitting the evidence substantially
    outweighs its probative value, the evidence can be excluded. In most cases
    involving the bad character of the deceased, the most significant prejudicial
    effect is the possibility that the evidence will arouse emotions of prejudice
    or hostility towards the deceased. As stated in
Scopelliti
at pp. 538-39:

Since evidence of prior acts of violence by the deceased is
    likely to arouse feelings of hostility against the deceased, there must
    inevitably be some element of discretion in the determination whether the
    proffered evidence has sufficient probative value for the purpose for which it
    is tendered to justify its admission. Moreover, great care must be taken to
    ensure that such evidence, if admitted, is not misused.

[132]

The trial judge
    found that the proposed evidence would not unduly engage any of these concerns.
    He also found that that there was no danger of unfair surprise. I agree with
    those findings.

[133]

The trial judge
    did find a prejudicial effect in the danger that the evidence could create side
    issues that would unduly distract the jury and consume an undue amount of time.
    The trial judge did not identify the side issues that would lead to these
    serious concerns. I assume that the trial judges concerns, which are echoed in
    my colleagues reasons, are anchored in the problem that allowing the appellant
    to adduce evidence of the deceaseds disposition would open the door to the
    Crown leading evidence of the appellants disposition. Further, while the
    appellant sought to limit the admissibility to proof of the convictions, it may
    be that either the Crown or defence would attempt to lead evidence of the facts
    underlying either the deceaseds or the appellants convictions.

[134]

The
    admissibility of prior acts of violence on the part of the accused, where that
    accused has sought to adduce evidence of the deceaseds disposition, is not
    entirely settled.  Martin J.A. left the issue open in
Scopelliti
at p.
    540:

The learned trial judge was clearly right in stating that the
    respondent having introduced evidence that the deceased were of violent
    disposition, the Crown was entitled to refute this evidence by calling evidence
    that the deceased were of peaceable disposition. Moreover, the respondent
    having introduced evidence that he was a person of peaceable character it was
    also open to the Crown to call evidence to rebut such evidence of peaceable
    character. I would wish, however, to guard myself against being taken to hold
    that, even if the respondent had not adduced evidence of his peaceable
    character, it would not have been open to the Crown, to adduce evidence in reply
    with respect to the respondent's disposition for violence, if such were the
    case, as the trial judge's reasons seem to imply. It may be that by introducing
    evidence of the deceased's character for violence, an accused impliedly puts
    his own character for violence in issue. See
Wigmore on Evidence
, vol. I
    at p. 472. However, I set aside this question until it requires to be decided.

[135]

Even if the
    appellant did put his own character in issue by adducing evidence of the
    deceaseds record for firearms offences, it is not a fore-gone conclusion that
    this would have cleared the way to a wide-open, no holds-barred inquiry into
    the appellants background or all the facts underlying the deceaseds
    convictions. The trial judge would still have been required to consider the
    probative value and prejudicial effect of that evidence. I think it highly
    unlikely that the Crowns response to the appellants leading evidence of the
    deceaseds convictions would have been to insist that the facts underlying
    those convictions be adduced. The facts summarized at para. 8 of the trial
    judges reasons were that the deceased was alleged to be a member of a criminal
    gang known as the Trethewey Gangster Killers, which is connected to the
    notorious Crips organized gang; that the guns that the deceased offered for
    sale were said to have been stolen in a robbery of a sporting goods store in
    which an employee was killed; that the deceased attempted to assist the killer
    in evading the police; that the deceased stated that he had at least seven handguns;
    and that 60 handguns were stolen during the robbery.

[136]

As to the
    evidence of the appellants character, it must be remembered that because the
    appellant testified at his trial some of his criminal record was before the
    jury including convictions in 1997 for theft (two convictions), in 2000 for
    assault, in 2005 for carrying a concealed weapon (a knife), and in 2006 for
    failing to comply and for trafficking in crack cocaine. If the deceaseds
    convictions were put before the jury, the Crown might have been entitled to
    lead evidence that the appellant also had convictions in 1995 for assault with
    a weapon, in 1997 for robbery (two convictions), and in 2000 for aggravated
    assault and for careless use of a firearm.

[137]

While the Crown
    might have sought to lead evidence of the facts underlying those convictions,
    it is not at all clear that this evidence would have been admissible. The most
    serious allegations concerned the facts underlying the 2000 conviction for
    aggravated assault, where it was alleged that the appellant was originally
    charged with attempted murder after multiple people were shot. Given that
    this incident had taken place six years earlier, the trial judge might have
    exercised his discretion to exclude the underlying facts. It appears that the Crown
    would also have sought to lead evidence of the facts of a robbery by the
    appellant several months after the killing before his arrest. In any event, the
    appellant was prepared to run that risk in order to have evidence admitted that
    he considered crucial to his defence. In my view, he should have been given
    that opportunity, despite the increased time it may have taken.

[138]

In any event, it
    is not apparent why the introduction of this evidence would so distract the
    jury and consume so much time that it was not worth receiving. This was a
    month-long trial, mostly consumed by prosecution evidence. Allowing one or two
    more days would not, it seems to me, have constituted an undue burden on the
    legal system. I refer again to Martin J.A.s comments in
Scopelliti,
at
    p. 538: To exclude, however, evidence offered by the accused which is relevant
    to prove his innocence would not, in my view, be in the interests of justice.

C.

Conclusion

[139]

To conclude, the
    evidence had probative value and its probative value was not substantially
    outweighed by its prejudicial effect. In my view, this is not a proper case in
    which to apply the proviso in s. 686(1)(b)(iii) of the
Criminal Code
.
    Doherty J.A. came to a similar conclusion in
Watson
at p. 178:

In so far as the applicability of s. 686(1)(b)(iii) is
    concerned, I am guided by
Wildman v. R
., [1984] 2 S.C.R. 311, 14 C.C.C.
    (3d) 321, a case in which the court addressed the applicability of the
curative
    proviso
where the trial judge had improperly excluded potentially
    exculpatory evidence proffered by the defence. Lamer J., for a unanimous court,
    said at p. 329 S.C.R., pp. 335-36 C.C.C.:

The determination as to whether the verdict "would
    necessarily have been the same if such error had not occurred" is
    generally made upon a reading of the evidence put to the jury.

But when the error of law is the preclusion of exculpatory
    evidence, then the determination must be made with regard to the entirety of
    the evidence, that evidence having been included, and in the light of the
    effect the excluded evidence could, within reason, possibly have had on the
    evidence that did go to the jury. Any reasonable effect that excluded evidence
    could have had on the jury should, in applying s. 613(1)(b)(iii), enure to the
    benefit of the accused. When the excluded evidence is, as in this case, of a
    certain importance and might reasonably have had an effect on the jury then,
    even assuming we in this Court would have nevertheless convicted, I find it
    difficult to be satisfied that the jury would have necessarily agreed with us.
    Any reasonable, possible effect of that excluded evidence on the jury should
    enure to the benefit of Wildman.

[140]

The Crown
    presented a formidable case against the appellant. His claim of self-defence
    was weakened by the number of shots fired, the evidence that at least one shot
    was fired when the deceased may have been retreating and the fact that no gun
    was found with the deceased. Nevertheless, the excluded evidence was a crucial
    building block for the defence theory that the deceased was armed. This is not
    a case in which the Crowns evidence is so overwhelming that a conviction would
    invariably result: see
R. v. Trochym
, 2007 SCC 6, [2007] 1 S.C.R. 239 at
    para. 82. There is, in my view, a reasonable possibility that the excluded
    evidence, when taken with other evidence, could have persuaded the jury that
    the deceased was armed and was reaching for a handgun when he was shot, leaving
    the jury with a reasonable doubt.

[141]

Accordingly, I
    would allow the appeal, set aside the conviction and order a new trial.

Released: October 17, 2013 (E.E.G.)

M. Rosenberg J.A.





[1]

R v. Corbett
, [1988] 1 S.C.R. 670.



[2]
Prior to the Crowns cross-examination of Ms. Stringer, defence counsel was
    granted permission to cross-examine Ms. Stringer to clarify inconsistencies
    between her trial testimony and her videotaped statements to police on December
    14 and 19, 2006.  Section 9(2) of the
Canada Evidence Act
allows for a
    witness, with the courts permission, to be cross-examined by the party
    producing the witness when the witnesss testimony conflicts with a prior
    written or otherwise recorded statement.


