



COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Filipovic, 2015 ONCA 761

DATE: 20151109

DOCKET: C55263

Gillese, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marko Filipovic

Appellant

Otto Mok, for the appellant

Brock Jones, for the respondent

Heard and released orally: November 5, 2015

On appeal from the conviction entered on December 19,
    2011 and the sentence imposed on March 20, 2012 by Justice Donald J. Taliano of
    the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

A jury found the appellant guilty of a single count of break, enter and
    theft arising out of the unlawful entry of a Rogers Wireless store in Niagara
    Falls and the theft of about 140 cellphones.

The Background Facts

[2]

The principal witness for the Crown at the appellants trial was a
    former employee of Rogers Wireless who admitted responsibility for the unlawful
    entry and theft. During the police investigation that followed discovery of the
    theft, this person, Julian Sniegocki, provided two statements to the police.
    The first was exculpatory. The second, which took place after police confronted
    him with more evidence, was inculpatory of Sniegocki, but also alleged culpable
    participation by the appellant.

[3]

Prior to the appellants trial, Sniegocki pleaded guilty to break, enter
    and theft and was sentenced to a term of imprisonment.

The Trial Proceedings

[4]

At the appellants trial, Sniegocki testified that nobody was with him
    when he unlawfully entered the Rogers Wireless outlet and stole the cellphones.

[5]

Crown counsel at trial applied to cross-examine Sniegocki in accordance
    with the procedure enacted by s. 9(2) of the
Canada Evidence Act
. The
    trial judge granted the Crown leave to do so. Sniegocki never adopted as true
    that portion of his statement in which he had implicated the appellant in the
    break, entry and theft. He insisted that he acted alone.

[6]

The trial judge permitted the Crown to file the statement on which he
    had granted Crown counsel leave to cross-examine Sniegocki as an exhibit in the
    proceedings. The exhibit included a DVD and a transcript of the statement.
    Crown counsel did not apply to have the statement admitted under the principled
    exception to the hearsay rule.

The Jury Instructions

[7]

The trial judge instructed the jury that they could make substantive use
    of Sniegockis unadopted prior inconsistent statement. The judge said:

It is important for you to understand how to deal with
    testimony of Julian Sniegocki and the inconsistencies with his prior
    statements.

Both the testimony and the prior statements can be used as
    evidence of what happened. In deciding whether or how much to believe of or
    rely upon the testimony of Julian, you should apply the same principles in the
    same way that you do with any other witness who testifies. You should also
    consider the fact, nature, and extent of any differences that you find between
    what the witness said here and what he said in the earlier statements in
    deciding how much or little you will believe of or rely upon as testimony at
    trial.

You may also consider the statements and exhibits as evidence
    of what happened. Like the witnesss testimony, it is for you to say how much
    or little you will believe of and rely upon the statements in deciding this
    case.

The Grounds of Appeal

[8]

The appellant did not advance either the filing of the prior
    inconsistent statement as an exhibit or the trial judges instructions about
    its use as a ground of appeal.

The Concession

[9]

In the best traditions of his office, Crown counsel in this court
    acknowledged that the trial judge erred in:


i.

admitting the statement as substantive evidence without proof of the
    conditions precedent to its admissibility; and


ii.

instructing the jury that they could use the statement substantively,
    that is to say, as proof of the truth of its contents.

Discussion

[10]

We
    agree with the concessions of Crown counsel. The unadopted prior inconsistent
    statement should not have been admitted as an exhibit in the proceedings. It
    had no intrinsic evidentiary value. Unadopted and not established to be within
    the principled exception to the hearsay rule, it was not and could not be used
    as proof of the truth of its contents. To be more specific, it was not and
    could not be used to establish, or to help to establish that the appellant
    committed the offence with which he was charged. The trial judge erred in law
    in instructing the jury that they could use the statement as proof of the truth
    of its contents in reaching their decision.

Conclusion

[11]

For
    these reasons, we allow the appeal from conviction, set aside the conviction
    and enter a verdict of acquittal. In the circumstances, we do not reach the
    sentence appeal.

E.E. Gillese J.A.

David
    Watt J.A.

G.
    Pardu J.A.


