



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Grizzle, 2016 ONCA 190

DATE: 20160307

DOCKET: C58579

Watt, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Omar Grizzle

Appellant

Breana Vandebeek, for the appellant

David Finley, for the respondent

Heard: February 29, 2016

On appeal from the conviction entered on September 20,
    2013 by Justice Julie A. Thorburn of the Superior Court of Justice, sitting
    with a jury.

ENDORSEMENT

[1]

The appellant appeals a jury verdict finding him guilty of possession of
    a loaded prohibited firearm. He advances three complaints:


i.

the trial judges erroneous instructions on the fault element in the
    offence charged in connection with his co-accused infected the instructions on a
    count charging the same offence against the appellant;


ii.

the trial judge erred in failing to remedy the trial Crowns improper
    re-examination of an adverse Crown witness and her closing address; and


iii.

the trial judge erred in her editing of the appellants criminal record
    in her
Corbett
ruling.

[2]

We would not give effect to any of the grounds of appeal advanced on
    behalf of the appellant and would dismiss the appeal.

Ground #1: Erroneous Instruction on Fault Element

[3]

It is common ground that the trial judges instructions on the fault
    element of the same offence alleged against the co-accused Tyrell in a separate
    count reflect error:
R. v. Tyrell
, 2014 ONCA 617, at paras. 31-33 and
    37-39.

[4]

The trial Crown advanced the case against the appellant and Tyrell on
    different grounds. The trial judge did likewise in her legal instructions on
    the basis of liability and her recitation of the case for the Crown. The errors
    made with respect to the fault element in connection with Tyrell were not
    repeated or incorporated by reference in connection with the count charging the
    same offence involving the appellant. The jurors were also instructed to decide
    the case against each person charged separately and individually on the basis
    of the evidence that applied to that person and in accordance with the legal
    principles that governed that individual. The jurors were provided with a
    written version of the instructions given orally by the trial judge.

[5]

In our view, the appellant makes too much of the risk that the jury
    might have transposed the flawed instructions on the fault element given only
    in connection with the case against Tyrell to their deliberations relating to
    the charge against the appellant. Nothing the trial judge said or left unsaid
    expressly or impliedly invited jury use of the principles governing Tyrells
    liability in deciding whether the Crown had proven the appellants guilt beyond
    a reasonable doubt.

[6]

We would reject this ground of appeal.

Ground #2: Improper Crown Conduct

[7]

The appellant also complains about the trial Crowns conduct in two
    respects:


i.

cross-examination of a Crown witness beyond the scope of what is
    permitted under s. 9(2) of the
Canada Evidence Act
(
CEA
); and


ii.

violation of the rule in
Browne v. Dunn
(1893), 6 R. 67
    (U.K.H.L.) in the trial Crowns closing address.

[8]

We first consider the complaint that the re-examination of the Crown
    witness Ms. McPhee exceeded the bounds of what had been permitted under the
    trial judges earlier ruling permitting Crown counsel to cross-examine her under
    s. 9(2)
CEA
.

[9]

It is well-settled that cross-examination under s. 9(2) may occur in
    re-examination:
R. v. Moore
(1984), 15 C.C.C. (3d) 541 (Ont. C.A.), at
    pp. 568-569. It is equally well-established that cross-examination under s.
    9(2) can extend to questions about the circumstances in which the witness
    changed his or her earlier version of events when testifying about those same
    events at trial:
R. v. Taylor
, 2015 ONCA 448, 325 C.C.C. (3d) 413, at
    para. 49

[10]

In
    our view, the re-examination by the trial Crown did not exceed permissible
    limits. The re-examination arose out of questions asked by trial counsel for
    the appellant in cross-examination of Ms. McPhee. It was open to the trial
    Crown to re-examine the witness on this aspect of her evidence. And under s.
    9(2) it was equally permissible for the trial Crown to cross-examine about the
    reasons for the change in her testimony.

[11]

Even
    if we were to conclude that the re-examination strayed beyond the permissible,
    the transgression was a minor event in a comparatively lengthy trial. Counsel
    for the appellant at trial objected only after the witness had left the witness
    box and did not take up the opportunity offered by the trial judge of making
    submissions about a remedy, such as a mid-trial corrective or limiting
    instruction.

[12]

The
    appellant also complains about the closing address of the trial Crown. To be
    more specific, the Crown suggested that apartment 309 at 2005 Eglinton Avenue
    West was a location where the accused would attend to engage in illegal
    activities, such as smoking marijuana and storing firearms, because the other
    locations they had access to would not allow this kind of activity. The
    appellant says that Crown counsel violated the rule in
Browne v. Dunn
because
    this theory was not put to the accused, Ms. McPhee  the owner of the apartment
     or any defence witnesses, so that it was unfair to invoke it in his closing
    address as a circumstance for the jury to consider in rejecting the case for
    the defence. The appellant adds that the defence requested the trial judge to
    advise the jury to give this evidence no weight, but she did not give such an
    instruction.

[13]

The
    rule in
Browne v. Dunn
(1894), 6 R. 67 (U.K.H.L.) is a rule of
    fairness, not a fixed or invariable rule. The extent of its application resides
    within the sound discretion of the trial judge. The remedy for a breach of the
    rule is a function of several factors. A trial judges choice of remedy is
    subject to substantial deference on appellate review:
R. v. Quansah
,
    2015 ONCA 237, 323 C.C.C. (3d) 191, at paras. 80-90.

[14]

When
    the complaint advanced here was made at trial, the trial judge concluded that
    no corrective action was required. Her assessment of the nature of the breach
    and whether some remedial action was required are decisions that were within
    her discretion and are entitled to deference in this court. We have not been
    persuaded that her conclusions reflect error.

Ground #3: The
Corbett
Ruling

[15]

The
    final ground of appeal asserts two errors in the trial judges
Corbett
ruling.
    To be more specific, the appellant says that the trial judge erred in:


i.

finding that the attack by trial counsel on the credibility of the
    investigating police officers amounted to an attack on their character; and


ii.

failing to exclude the appellants prior convictions for crimes of
    violence on the basis that their probative value was overborne by their
    prejudicial effect.

[16]

The
    decision of a trial judge to exclude or not exclude part of an accuseds
    criminal record is an exercise of judicial discretion. It is a decision that we
    do not review on a standard of correctness. In the absence of an error in
    principle or a misapprehension of relevant evidence, we are disentitled to
    interfere with the trial judges exercise of that discretion:
R. v. Talbot
,
    2007 ONCA 81, 217 C.C.C. (3d) 415, at paras. 37-38.

[17]

In
    this case, the trial judge was asked to exclude the appellants convictions of
    attempted murder, weapons-related offences and all assault convictions and to
    have the robbery conviction described as a conviction for theft. The trial
    judge deleted the weapons offence and substituted an assault conviction for
    that of attempted murder.

[18]

The
    principal driver of the trial judges decision was her determination that the
    appellant had attacked the character of the officer who located the gun and the
    appellants identification in a suitcase in the childrens bedroom. We are not
    persuaded that she erred in her characterization of the nature of trial
    counsels attack on the seizing officer. Despite this conclusion, she deleted
    all the weapons and firearms convictions to ensure that propensity reasoning
    did not seep into the deliberation process, limiting instructions
    notwithstanding.

[19]

The
    trial judges location of the balance between probative value and prejudicial
    effect is entitled to substantial deference in this court. That another trial
    judge might have set the balance differently does not entitle us to interfere.
    Indeed, another trial judge might not have sanitized the conviction of
    attempted murder: see, for example,
R. v. Saroya
, [1994] O.J. No. 2920
    (C.A.), at para. 13.

Conclusion

[20]

For
    these reasons, the appeal is dismissed.

David
    Watt J.A.

P.
    Lauwers J.A.

G.
    Pardu J.A.


