



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mullings, 2014 ONCA 895

DATE: 20141216

DOCKET: C48417

Strathy C.J.O., Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dwayne Mullings

Appellant

Timothy E. Breen, for the appellant

Roger Pinnock and Greg Skerkowski, for the respondent

Heard: June 23, 2014

On appeal from the conviction entered on November 4, 2007
    by Justice J.R. Belleghem of the Superior Court of Justice, sitting with a
    jury.

Strathy C.J.O.:

[1]

Dwayne Mullings appeals his conviction for first degree murder of Bogdan
    Spolski, who was shot and killed at his home in Mississauga on January 10,
    2004. His first trial ended in a mistrial due to a hung jury. After a year-long
    second trial, he was convicted and sentenced to life imprisonment.

Background

[2]

The following overview will put the issues in context. I will add detail
    as I consider each ground of appeal.

[3]

It was bitterly cold on the day of the shooting. Spolski became involved
    in an altercation with a man who was trying to steal his car, which he had left
    running in his driveway. The man shot and wounded him as they struggled on the
    driveway. Their struggle moved into the garage, where the assailant shot him
    again, this time in the chest, before taking his wallet and fleeing in the car.
    Spolski was found lying dead at the back of his garage. He had suffered two
    wounds from a .22 calibre gun.

[4]

Two days later, Spolskis car was found in the parking lot of a high-rise
    in Scarborough, at the other end of the city. The interior had been set on
    fire, probably to destroy evidence.

[5]

The central issue at trial was identity. Eyewitness evidence of a
    neighbour and two visitors to the Spolski residence was insufficient to identify
    the appellant as the perpetrator. Circumstantial evidence, referred to below,
    was consistent with the appellant having a motive, opportunity and means to
    commit the crime.

[6]

The centrepiece of the Crowns case, however, was an alleged confession
    made by the appellant some time after the shooting to three associates  Jaurel
    Preddie, Ranjit Dhillon and Kareem Watson.

[7]

In statements made to police in April 2007, each said the appellant had confessed
    to the shooting while they were together in a car, on their way to buy guns.
    They claimed the appellant had shown them a wound on his arm and told them he
    had shot himself while struggling with a man he had shot and killed in the
    course of a robbery.

[8]

The Crown argued the confession was true and was made by the appellant
    to demonstrate to his associates, whom he had set up to be robbed during the
    gun buy, that he was capable of deadly violence.

[9]

All three associates had criminal records or outstanding charges. Watson
    and Preddie were in custody at the time of their initial statements to the
    police and when they testified at trial. The Crown acknowledged they were disreputable
    reprobates. The appellants position at trial was that they were all lying
    and had either colluded or each had fabricated the story on his own.

[10]

The
    appellant did not testify.

[11]

The
    Crown also relied on circumstantial evidence capable of connecting the
    appellant to the shooting. This evidence included:

·

the appellants girlfriend, Tyanna Fletcher, lived in an
    apartment building a stones throw from Spolskis house  the appellant had
    left her apartment about an hour before the shooting, after an angry argument;

·

Fletcher said she had observed the appellant carrying a gun when
    he was at her apartment. Other evidence put him in possession of a gun the
    night before the shooting. The description of the gun was consistent with the
    type of gun used to shoot Spolski;

·

the appellant did not have a vehicle and had attempted, without
    success, to arrange a ride before he left Fletchers apartment;

·

records tracing the movement of the appellants cell phone were
    consistent with him being in the vicinity of Spolskis home in Mississauga at
    the time of the shooting and travelling thereafter across the city to the area
    in Scarborough where Spolskis car was subsequently found, not far from the
    home of one of the appellants friends;

·

conversations between the appellant and Fletcher, obtained
    through police wiretaps of her phone after the shooting, supported the
    conclusion that the appellant was attempting to induce her to lie about his
    presence at her apartment on the day of the shooting; and

·

two circular scars observed on the appellants right forearm at
    the time of his arrest were consistent in appearance with the .22 calibre
    gunshot wounds on Spolskis body.

[12]

The
    Crowns theory was that the appellant was angry and carrying a gun when he left
    Fletchers apartment in Mississauga. He had no means of transportation on the
    very cold day and attempted, without success, to arrange a ride. He saw Spolskis
    unoccupied car running in the driveway of a home near the apartment building
    and decided to take it. He struggled with Spolski outside the garage and shot both
    himself and Spolski in the arm. Infuriated, he dragged Spolski to the back of
    the garage where he brought him to his knees and shot him point-blank in the
    chest. He took Spolskis wallet and the car, drove to Scarborough where he
    abandoned the car, set it on fire, and walked away.

Grounds of Appeal

[13]

The
    appellant raises four grounds of appeal:

(a)

Admissibility of Preddies
    Evidence Under KGB
: the trial judge erred in ruling that Preddies
    evidence at the appellants preliminary inquiry was admissible under
R. v.
B.(K.G.)
,
[1993] 1 S.C.R. 740 (
KGB
)
;

(b)

Collusion
: the trial
    judge erred in his jury instruction with respect to collusion by the three associates
    who gave statements about the appellants confession;

(c)

Mistrial
: the trial judge
    erred in refusing to grant a mistrial after Murray refused to answer further questions
    before his testimony had been completed; and

(d)

First degree murder
: the
    appellants conviction under s. 231(5)(e) of the
Criminal
Code
,
R.S.C. 1985, c. C-46 (murder while
    committing unlawful confinement) was unreasonable.

Analysis

(a) Admissibility of Preddies
    Evidence under
KGB

[14]

In
    April 2004, police questioned Dhillon, Watson and Preddie in connection with
    the appellants involvement in the killing. All three gave statements. In
    substance, each said that the appellant had shown them one or two wounds on his
    arm while they were in a car with him on their way to the gun purchase. The
    appellant told them these were self-inflicted gunshot wounds from a struggle
    with another man. The appellant said he ultimately shot and killed the man,
    then stole his car.
[1]

[15]

Preddie
    was a self-professed drug dealer with a significant criminal record. In early
    March 2004, he was arrested on multiple charges, including possession for the
    purpose of trafficking and assaulting a peace officer.

[16]

He
    was visited in jail by police officers in April 2004. They asked whether he
    knew anything about a murder in Mississauga. Preddie denied any knowledge. His
    position changed after he learned that Watson had cooperated with police and
    after police offered him a sentence of time served on his outstanding charges,
    in return for his cooperation.

[17]

Preddie
    gave a videotaped statement to police on April 27, 2004. He described the
    appellants confession in the car on the way to the gun buy and said the
    appellant had shown him the wound on his arm. Two days later, he pleaded guilty
    to possession of cocaine and  assaulting a peace officer, received a sentence
    of time served and was released. The other charges were withdrawn.

[18]

Preddies
    evidence at the appellants preliminary inquiry on January 5, 2006 was
    generally consistent with his video statement.

[19]

Preddie
    failed to appear as a witness at the appellants first trial. At the second
    trial, he was in jail on other charges and was compelled to testify. He
    recanted the evidence he had given at the preliminary inquiry. He testified
    that his police statement was a lie and that he gave it to get out of jail and
    to get revenge against the appellant for the gun buy rip-off.

[20]

A
KGB
application was made at the appellants trial to admit Preddies
    preliminary inquiry testimony confirming his original account of the
    appellants confession. The events preceding his preliminary inquiry testimony
    became the focus of the ensuing
voir dire
.


[21]

Preddie
    testified that he met with Crown counsel, Stephen Sherriff, prior to giving his
    evidence at the preliminary inquiry and told Sherriff that his statement was
    false. He claimed Sherriff told him that if he changed his story he would be
    charged with obstructing justice, perjury and being an accessory to murder and that
    the drug charges might be re-laid. Preddie claimed he had seen the appellants
    girlfriend, Fletcher, arrested outside the courtroom, and he believed he too
    would be arrested if he departed from his statement. He said he lied at the
    preliminary inquiry because he was afraid he would be charged if he departed
    from his video statement.

[22]

Sherriffs
    evidence on the
voir dire
was quite different. He testified that
    Preddie came to the interview wearing sunglasses on a dull winter afternoon and
    refused to remove them. Preddie was sullen and defiant. Preddie denied he was
    the person in the video, a statement that was patently absurd. Sherriff said he
    told Preddie if he persisted in this position in front of the jury, he would be
    charged with obstruction of justice, perjury and accessory, and the previously
    withdrawn charges would be re-laid.

[23]

Sherriff
    said he spoke to Preddies father, who was present at the interview, hoping
    that he could induce Preddie to consider the folly of his conduct. After a
    break in the interview, Preddie and his father returned. Preddies attitude had
    improved and his father thanked Sherriff and said they would follow his advice.

[24]

Sherriff
    claimed that on the morning before Preddies testimony he told the appellants
    lawyer that he had no idea what Preddie would say when he testified. Sherriff
    also said that he told the lawyer the essence of his meeting with Preddie.

[25]

The
    lawyer who represented the appellant at the preliminary inquiry also testified
    on the
voir dire
. He said Sherriff did not tell him the details of his
    meeting with Preddie, particularly the fact that he had told Preddie he would
    be charged if he denied he was the person in the video. The appellants lawyer
    said that had this information been disclosed, he would have cross-examined
    Preddie on the details of his meeting with Sherriff. He acknowledged that
    Sherriff may have said he had no idea what Preddie would say.

[26]

The
    trial judge found Sherriffs evidence more credible than Preddies. He found
    that Fletchers arrest in the hallway of the courthouse took place before
    Sherriff met with Preddie, and before he knew Preddie would be uncooperative at
    the preliminary hearing. While the scene was upsetting to Preddie, there was no
    investigatory misconduct. It was perfectly proper for Sherriff to warn Preddie
    of the consequences of his proposed denial of the statement. It was Preddies
    self-interest, rather than an atmosphere of oppressive coercion, that led
    Preddie to try to repudiate his videotaped statement before the preliminary
    hearing, confirm it on the preliminary hearing, avoid testifying on the first
    trial, and recant it before the jury on the second trial. This shed little or
    no light on the issue of threshold reliability.
[2]

[27]

The
    trial judge ruled that Preddies evidence at the preliminary hearing was
    admissible pursuant to the principled exception to the hearsay rule. The
    admission of the evidence did not violate the appellants
Charter
rights.
    The admission of this evidence forms the basis of this ground of appeal.

[28]

The
    standard of review on an appeal of a ruling on the admissibility of hearsay
    evidence is correctness:
R. v. Duong
, 2007 ONCA 68, 84 O.R. (3d) 515,
    at para. 54. As the respondent notes, however, this analysis is generally
    fact-specific and deference should be given to the trial judges weighing of
    the factors going to the reliability of the statement. As this court observed
    in
R. v. S.S.
, 2008 ONCA 140, 232 C.C.C. (3d) 158, at para. 30:

As long as the trial judge addressed the factors germane to the
    reliability of the hearsay statement, did not fall into any material
    misapprehension of the evidence relevant to those factors, and made a
    reasonable assessment of the weight to be assigned to those factors, this court
    should not redo the weighing process, but should defer to the trial judge's
    weighing of those factors.

See also:
R. v. Carroll
, 2014 ONCA 2, 304
    C.C.C. (3d) 252, at para. 112, leave to appeal to S.C.C. refused, [2014]
    S.C.C.A. No. 193.

[29]

The
    Supreme Court of Canada has observed that a witnesss testimony before a
    preliminary inquiry will generally satisfy this threshold test of reliability
    since there are sufficient guarantees of trustworthiness:
R. v. Hawkins
,
    [1996] 3 S.C.R. 1043, at para. 76; see also
R. v. Khelawon
, 2006 SCC 57,
[2006] 2 S.C.R. 787,

at
    para. 91. The preliminary inquiry involves the same issues and the same parties
    and the hearsay dangers are minimal and primarily concern the inability of the
    trier of fact to observe the declarant.

[30]

In
    support of his position that the trial judge erred in admitting Preddies
    preliminary inquiry testimony, the appellant raises two sub-issues: (i) whether
    Preddies preliminary inquiry testimony was the product of threats and should
    have been ruled involuntary; and (ii) whether the reliability of the testimony
    was undermined by a lack of meaningful cross-examination caused by the Crowns
    failure to disclose the details of the meeting between Sherriff and Preddie.

Voluntariness

[31]

The appellant argues the trial judge erred in describing the
    issue as a matter of the courts residual discretion to exclude the statement
    due to prosecutorial misconduct. In this regard, the appellant says the trial
    judge misapprehended the relationship between the confessions rule and the
    determination of threshold reliability. He collapsed the requirement that the
    statement be voluntary with the residual discretion to exclude a statement
    based on investigative or prosecutorial misconduct.

[32]

The
    appellant relies on this courts decision in
R. v. Hamilton
, 2011 ONCA 399, 271 C.C.C. (3d) 208,
in
    support of his submission that a hearsay statement obtained through threats
    renders the statement involuntary and therefore inadmissible. He says that Sherriffs
    threat of prosecution induced Preddie to testify at the preliminary inquiry in
    a manner consistent with his police statement and his preliminary hearing
    evidence should therefore be treated as involuntary and inadmissible.

[33]

The
    respondents submission is that the trial judge made an express finding, in his
    ruling on the
KGB
application, that the arrest of Fletcher and
    Sherriffs warning to Preddie about the consequence of changing his evidence
    did not amount to inappropriate coercion capable of rendering the preliminary
    inquiry testimony involuntary.

[34]

As
    well, the respondent notes, the trial judge found that Preddies on-again,
    off-again evidence was not due to investigative or prosecutorial misconduct,
    but rather was due to his own self-interest and had little to do with the threshold
    reliability of the evidence.

[35]

It
    is important to recognize at the outset that in
Hamilton
this court
    stated that it did not read
KGB
as laying down a hard and fast rule
    that all witness statements taken in contravention of the traditional
    confessions rule must necessarily be rejected as evidence of the truth of their
    contents (para. 141).

[36]

In
Hamilton
, after referring to the observations of Lamer C.J. in
KGB
concerning the confessions rule, this court continued, at para. 144:

In this passage, the Chief Justice is cautioning trial judges
    not to become mesmerized by the indicia of reliability. When the indicia of
    reliability are found to exist, normally this will justify the admission of a
    statement for its truth. But there may be cases where the trial judge is
    concerned that the indicia of reliability are a façade - and in such
    circumstances, the voluntariness branch of the confessions rule provides a
    ready-made guide to assist trial judges in making their threshold reliability
    determination. For example, if a trial judge were to entertain a real concern
    that a witness' statement was the product of police coercion and the witness
    simply told the police "what the police wanted to hear", this would
    necessarily undermine the veracity of the indicia of reliability and render the
    proposed statement inadmissible for its truth. In that sense, the residual
    discretion vested in trial judges may be seen as a safety valve. It ensures
    that the decision to admit a statement for its truth does not devolve into a
    merely mechanical exercise.

[37]

This
    court went on to find that the promises and inducements made to the witness did
    not impact the voluntariness of his statements and that he had spoken willingly
    to police and his statements were voluntary and the product of his free will
    (para. 147).

[38]

In
    this case, the trial judge referenced the observation of Lamer C.J., at p. 802
    of
KGB
,

that:

The trial judge must satisfy him or herself (again, in the
    majority of cases on the balance of probabilities) on the
voir dire
that the statement was not the product of coercion of any form, whether it
    involves threats, promises, excessively leading questions by the investigator
    or other person in a position of authority, or other forms of investigatory
    misconduct.

[39]

He
    found there was no investigative misconduct contributing to Preddies evidence
    at the preliminary inquiry. Fletchers arrest had not been orchestrated by
    Sherriff and it was perfectly proper for Sherriff to warn Preddie of the
    consequences of his proposed course of action. The trial judge stated:

Much of the concluding argument of defence counsel dealt with
    the conduct of police and Crown as contributing to a coercive atmosphere under
    which [it] is alleged Preddie testified at the preliminary hearing. That
    argument must fail to the extent that I am unable to find a factual basis for
    its application. Far from being a unique set of circumstances as alleged by
    defence counsel, I find that Preddies conduct in trying to effectively
    repudiate his videotaped statement before the preliminary hearing; thinking
    better of it and then confirming it on the preliminary hearing; then absconding
    from testifying on the first trial to avoid repeating it, apparently; and
    finally recanting it before the jury on the second trial, speaks only to the
    witnesss sense of self-interest. It sheds little or no light on the issue of
    ultimate reliability which is a function of the jury in the trial before me.

[40]

The
    trial judges analysis reveals no error. Taken in context, Sherriffs warning
    that charges could ensue if Preddie repudiated his police statement was not a
    coercive threat, as contemplated by the jurisprudence.

[41]

In
    the circumstances, Sherriffs warning was an appropriate caution that
    reinforced the solemnity of testifying under oath and allowed Preddie to make
    an informed decision about his best interests. As the trial judge found, that
    is exactly what Preddie did as he altered his version of events throughout the
    proceedings.

[42]

I
    conclude the trial judge did not err in rejecting the appellants argument that
    Sherriffs warning rendered the statement involuntary.

Disclosure and cross-examination

[43]

Second,
    the appellant says that the failure of Crown counsel at trial to disclose his
    discussion with Preddie to defence counsel deprived the defence of a fair
    opportunity to cross-examine Preddie at the preliminary inquiry concerning the
    circumstances in which his statement had been made.

[44]

The
    appellant also refers to the Crowns closing which described Preddies account
    of his interview with Sherriff as a lie. He says that because Preddie had not
    been fully cross-examined at the preliminary inquiry concerning his interview
    with Sherriff, the jury had no way to properly compare his trial evidence with
    his preliminary inquiry evidence. The absence of contemporaneous
    cross-examination on the statement undermined the threshold reliability of the
    preliminary inquiry evidence and the Crowns closing presented the jury with a
    distorted view of its weight.

[45]

I
    would not give effect to this submission.

[46]

Incomplete
    contemporaneous cross-examination is a defining reality of hearsay statements.
    In fact, admissible hearsay statements often have no contemporaneous
    cross-examination at all.

[47]

Preliminary
    inquiry testimony is an exception to this general observation, as it ordinarily
    provides some degree of contemporaneous cross-examination that assists the
    trier of fact in determining ultimate reliability. In addition, preliminary
    inquiry testimony is given under oath in the presence of the accused and
    certified by a written transcript. These procedural features enhance its
    trustworthiness to make it generally admissible, despite being hearsay:
Khelawon
,
    at para. 91.

[48]

As
    the respondent notes, it is significant that the trial judge found that defence
    counsel received sufficient disclosure from Sherriff of his meeting with
    Preddie  namely, that no one knew what Preddie was going to say. This alerted
    defence counsel to the possibility that Preddie might depart from his police
    statement. During cross-examination, defence counsel proceeded to challenge
    Preddies account of the appellants confession.

[49]

The
    appellants complaint is that the challenge was not complete, as defence
    counsel was not equipped with more detail about Sherriffs meeting with
    Preddie. It is true that, viewed through the lens of hindsight, the
    cross-examination may not have been comprehensive. However, as stated above,
    this shortfall is a defining reality of hearsay statements.

[50]

The
    contemporaneous cross-examination that did occur at the preliminary inquiry was
    sufficient to enhance the trustworthiness of the statement. Moreover, unlike
    cases where preliminary inquiry testimony is admitted under the statutory
    exception in s. 715 of the
Criminal Code
, the declarant was available
    at trial. The additional detail about the meeting between Sherriff and Preddie
    was subject to cross-examination at trial and the jury could use this
    information to assess the ultimate reliability of the statement.

[51]

The
    trial judge identified the correct legal test, weighed the relevant factors and
    concluded that the jury would have an adequate basis on which to evaluate
    Preddies evidence in its entirety. This conclusion is entitled to deference
    and is consistent with the Supreme Courts observation about the general
    admissibility of preliminary inquiry testimony. In my view, there is no basis
    for appellate interference.

[52]

I
    also reject the submission that Crown counsels closing, in which he described
    Preddies attempt to recant his previous statement as a lie, somehow left the
    jury with a distorted impression of Preddies evidence as a recent fabrication.
    While not determinative, it is important to note that defence counsel did not
    object or seek a corrective instruction in response to the Crowns closing
    submissions on Preddies evidence:
R. v. Daly
(1992), 57 O.A.C. 70
    (C.A.), at p. 76.

[53]

More
    important, the defence presented its own position on the veracity of Preddies
    preliminary inquiry and trial testimony, which was repeated by the trial judge
    in his charge. There is no basis to conclude the jury was left with a distorted
    impression of the evidence. This ground of appeal fails.

(b) Collusion

[54]

The
    second issue concerns the trial judges charge on collusion. For the following
    reasons, I am satisfied that the trial judges charge on this issue did not
    give rise to a reversible legal error.

[55]

This
    issue must be addressed in context and by looking at the charge as a whole. Much
    of the trial and the trial judges jury instructions, were consumed by the
    evidence of the three associates  Dhillon, Watson and Preddie. There was so
    much lying, recanting, backtracking and obfuscating in their testimony that the
    challenge for the jury was to determine when, if at all, they had been speaking
    the truth.

[56]

There
    was little actual evidence of collusion. Dhillon and Preddie admitted they had
    discussed the police investigation with each other and with Watson before
    giving their statements on April 27, 2004. However, Dhillon said he did not
    recall discussing with the other two what they should say to the police. Both
    Dhillon and Preddie agreed there was no plan to make up the appellants
    confession.

[57]

Watson
    was clearly angry at the appellant for setting them up to be robbed at the gun
    purchase. Initially, when confronted on cross-examination with the suggestion
    that the three had agreed to falsely implicate the appellant in the shooting,
    he replied I dont remember having that conversation. We were just upset about
    what he did. Later in cross-examination, however, he conceded to defence
    counsel that he did collude with Dhillon and Preddie to make up the appellants
    confession.

[58]

Defence
    counsel described Preddie, Dhillon and Watson as unsavoury, dishonest
    witnesses, who had colluded to falsely implicate the appellant in the shooting
    as payback for setting them up for the robbery. He told the jury that if they
    found there was collusion among them, or if they had any doubt that there was
    collusion, they could not find the appellant had confessed to killing someone. The
    Crown, on the other hand, argued that the trial evidence of Dhillon (who did
    not recant) and the preliminary inquiry evidence of Preddie (who did recant at
    trial) could be used for corroboration.

[59]

The
    trial judge reviewed for the jury, in detail and at length, the evidence of
    Watson, Preddie and Dhillon with respect to the car ride, including the
    different accounts of those events that each had given at various times.

[60]

The
    trial judge instructed the jury that if they found the confession evidence was
    the product of collusion, they could not use it for any purpose, including for
    the purpose of confirming the evidence of other witnesses. His instructions
    included the following:

If you accept that a witness has colluded with another you may
    however consider that when assessing the credibility of the witness who
    testifies, respecting collusion, as well as the credibility of the witness with
    whom you find the testifying witness has colluded.

[61]

In
    giving a
Vetrovec
instruction, the trial judge stated:

If you accept that some of the people in the car ride to get
    guns, that resulted in a robbery, colluded, that is that they agreed to make
    false allegations against the defendant concerning comments he made or did not
    make in the car, then to the extent that you find that evidence is the product
    of collusion, you should reject using that evidence for any purpose, including
    for confirmation purposes.

It will ultimately be for you to determine whether evidence of
    any unsavoury witness is a product of collusion and therefore not to be used to
    support the evidence of another unsavoury witness.

[62]

The
    defence did not object to the proposed instruction in the pre-charge
    discussions. Nor did it do so after the charge.

[63]

In
    this court, the appellant contends the trial judges instruction did not
    explain the requirement that corroborative evidence must be independent and
    that it cannot be independent if it is the product of collusion.

[64]

The
    appellant also contends that the instruction had the effect of shifting the
    burden of persuasion to the defence. He says the trial judge improperly limited
    the significance of the evidence of collusion by requiring the jury to make a
    positive finding of fabrication before it could negate the value of the confession
    evidence. This, he says, imposed a two-stage fact finding process and placed a
    burden on the defence to establish fabrication. He says the jury should have
    been instructed that unless they were satisfied that there was no collusion,
    they were not to use the evidence of Dhillon or Preddie for confirmation.

[65]

The
    respondent submits that on this record the distinction is one without a
    difference. The issue of collusion was squarely before the jury and it was
    neither a difficult nor a complex matter for them to resolve based on their
    assessment of the evidence of the three passengers in the car. It was clear to
    the jury that if the evidence disclosed collusion, the testimony of the
Vetrovec
witnesses could not be used at all.

[66]

The
    respondent submits the jury would have clearly understood that the existence of
    collusion would negate the evidentiary value of the testimony of Dhillon and
    Preddie. There was no realistic possibility that the jury would have disregarded
    the requirement that corroborative evidence must be independent.

[67]

At
    the same time, the respondent does acknowledge that the instruction proposed by
    the appellant is technically correct. I agree, but that is not the test.

[68]

This
    is a case like
R. v. Khela
, 2009 SCC 4, [2009] 1 S.C.R. 104, where the
    Supreme Court concluded, at para. 56, the substance of a proper
Vetrovec
caution
    was communicated adequately, albeit imperfectly, to the jurors. The Supreme
    Court has recognized that technical imperfection does not make the charge so
    deficient as to constitute an error of law:
R. v. Hibbert
, 2002 SCC
    39, [2002] 2 S.C.R. 445, at para. 44. This is such a case and I would not give
    effect to this ground of appeal.

[69]

Taken
    in isolation, the instruction could have left the jury with the impression that
    they had to make a positive finding of collusion before they used the evidence
    of collusion for any purpose. However, a broader approach to the charge is
    necessary. As stated by this court in
R. v. Winmill
(1999), 42 O.R.
    (3d) 582 (C.A.),

at p. 603:

The sufficiency of the
Vetrovec
caution cannot
    reasonably be assessed by an isolated review of that part of the charge that
    one can identify as the 
Vetrovec
warning. That is to say, the charge
    must be read as a whole.

[70]

This
    court went on to say, at p. 608:

[I]t is for the jury to determine whether the evidence of one
    unsavoury witness can provide support for the evidence of another. If there are
    circumstances such as collaboration among the
Vetrovec
witnesses, the
    jury should be alerted to that fact which will obviously militate against using
    the evidence of one unsavoury witness to support the evidence of another. It is
    for the jury to determine whether an untrustworthy witness's evidence is so
    compromised by collaboration that it could not reasonably be used to support
    the evidence of another untrustworthy witness. The final credibility call is, I
    emphasize, for the jury.

[71]

In
    addition, in
R. v. Parris
, 2013 ONCA 515, 300 C.C.C. (3d) 41, at para.
    91, this court recognized that deficiencies or shortcomings in the
Vetrovec
caution itself may be compensated for in other portions of the final
    instructions that must be read as a whole. Considering the instructions as a
    whole, the jury was not misdirected as to the use they could make of the
    evidence. On the contrary, they were well-equipped for the task.

[72]

The
    trial judges careful and thorough charge canvassed the evidence of each
    witness concerning the defence theory of collusion. Not surprisingly, given the
    three witnesses who had each been questioned on several occasions, there were
    inconsistencies and omissions between accounts given by the same witnesses and among
    the various witnesses. Many of the inconsistencies were identified by the trial
    judge and by defence counsel.

[73]

After
    a very lengthy trial, the addresses of counsel and the judges charge, which
    spanned four days, the jury had a thorough understanding of the role of the
    confession evidence in the context of all the evidence, direct and circumstantial,
    bearing on the issue of identity. It would have been quite obvious to the jury
    that the three confession witnesses had given different stories on various
    occasions, had lied and had motives to lie, whether for personal advantage,
    self-protection or revenge. It would also have been very clear to the jury that
    if they had a reasonable doubt on the issue of identity they were bound to
    acquit and that the reasonable doubt must arise after consideration of all the
    evidence. As a result, the trial judge committed no reversible error and this
    ground of appeal fails.

(c) Mistrial

[74]

The
    third issue concerns the trial judges response to Boysie Murrays refusal to
    answer further questions in the midst of the Crowns examination-in-chief. The
    trial judge dismissed a defence motion for a mistrial, but ordered that
    Murrays testimony be struck. The appellant submits the trial judge erred in
    dismissing the defence mistrial motion.

[75]

Murray
    claimed he was involved with the appellant in the robbery of Dhillon and
    Preddie during the aborted gun purchase. He had been arrested by police and gave
    a videotaped statement in which he said the appellant had confessed the killing
    to him.

[76]

At
    trial, Murray not only denied having been involved in the robbery, he denied
    the appellant had told him anything about a homicide. He did admit that he had
    seen a bump on the appellants arm and said the appellant had told him he
    shot himself.

[77]

Murrays
    evidence was interrupted to permit the Crown to bring an application under s.
    9(2) of the
Canada Evidence Act
,
    R.S.C., 1985, c. C-5,
and a
KGB
application.

[78]

On
    the
voir dire
concerning his video statement, Murray said that he made
    up the confession in order to get out of jail. The trial judge ruled the Crown
    could not introduce his statement about the appellants confession. He was,
    however, prepared to permit the Crown to introduce another part of the
    statement, in which Murray claimed he had seen the appellant with a gun.

[79]

The
    continuation of Murrays examination was delayed because he had been charged
    with murder in an unrelated matter. When he appeared six months later, he
    admitted he was involved in the gun purchase robbery. He also admitted having
    seen a welt on the appellants arm, but he denied the appellant had said he
    shot himself. This resulted in another s. 9(2) application, which was
    granted. When Murray next appeared at the trial, he refused to testify and was cited
    for contempt.

[80]

The
    appellants counsel at trial argued that a mistrial should have been granted
    for three reasons. First, the jury might find the appellant guilty by
    association with Murray, whom he described as a very bad man. Second, the
    jury might infer from Murrays silence that he was attempting to help the
    appellant. Third, some of the Crowns unanswered questions to Murray might lead
    the jury to conclude that the appellant had confessed to Murray and that Murray
    was being silent in order to avoid responding.

[81]

The
    trial judge dismissed the application. He noted that the little evidence that
    Murray had given to that point was largely uncontroversial and he had already
    retracted his evidence that the appellant had claimed to have shot himself. He
    pointed out that the jury would be instructed that questions to a witness are
    not evidence unless the witness adopts them. They would also be given a
Vetrovec
warning. After considering
R. v. Duong
, 2007 ONCA 68, 84 O.R. (3d) 515,
the trial judge concluded
    that this was not one of the clearest of cases in which a mistrial should be
    granted. He also found, referring to
R. v. Cameron
(2006), 208 C.C.C.
    (3d) 481 (Ont. C.A.) and
R. v. Hart
, 1999 NSCA 45, 174 N.S.R. (2d)
    165, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 109, that it would
    be premature to grant a mistrial, unless it was determined that there was no
    possibility of remedial or ameliorative action to neutralize any unfairness
    arising from the inability of defence counsel to cross-examine Murray on his
    evidence to that point.

[82]

The
    trial judge concluded that the trial had not been rendered irretrievably unfair
    and invited counsel to address the issue of what action would be required in
    the circumstances to ensure a fair trial.

[83]

After
    hearing further submissions, the trial judge granted a defence application to strike
    Murrays evidence in its entirety and dismissed a Crown application to admit
    other portions of Murrays evidence pursuant to
KGB.

[84]

When
    the trial resumed, the trial judge gave a mid-trial instruction to the jury in
    which he instructed them to:

[D]isregard [Murrays] evidence before you in its entirety. Do
    not use it for any purpose whatsoever.  [H]is refusal to continue testifying
    requires me to tell you, as I just did, that you are to disregard his evidence
    in its entirety and treat it as though he had never appeared to testify before
    you in the first place. I anticipate that you should have no difficulty in
    doing this because his evidence was relatively brief despite his number of
    appearances before you.

[85]

The
    trial judge pointed out that due to Murrays refusal to answer questions the
    jury must not only disregard everything he said, but also must not speculate
    about what else he might have said under further examination and that no
    responsibility should attach to either the Crown or the defence for Murrays
    failure to testify. He continued:

In summary, therefore, you must disregard Murrays evidence in
    its entirety for all purposes. You must not speculate about what else he might
    have said. You must not draw any adverse inference against either side because
    of Murrays refusal to continue testifying, and finally, whatever association
    Murray and Mullings may have had, neither the association nor Murrays refusal
    to testify provides any basis to draw any inference adverse to the defendant.

[86]

In
    his final instructions, the trial judge reminded the jury that they were to
    disregard Murrays testimony entirely and to treat it as though he never
    testified. He also reminded them that they were not to draw any inferences
    against either side from his conduct, nor make any negative inference against
    the appellant as a result of his relationship with Murray.

[87]

There
    was no objection to these instructions.

[88]

The
    decision to grant or refuse a mistrial is quintessentially a matter of judicial
    discretion and it is only in the clearest of cases that an appellate court
    should intervene:
R. v. Rollocks
(1994), 19 O.R. (3d) 448 (C.A.), at p.
    452. This is because a trial judge is uniquely positioned to read the barometer
    of the case and to determine the impact, if any, of the evidence and to assess
    what remedial measures, if any, short of a mistrial will suffice to remove the
    impact of that evidence from the jury:
R. v. Khan
, 2001 SCC 86, [2001]
    3 S.C.R. 823, at para.
36;
R. v. Liu
(2004), 190
    C.C.C. (3d) 233 (Ont. C.A.), at para.
24;
R. v. Chiasson
, 2009
    ONCA 789, [2009] O.J. No. 4682, at para. 19.

[89]

Appellate
    intervention will be appropriate, for example, where the court is satisfied
    that no limiting instruction could effectively remove the evidence from the
    jurys consideration:
Rollocks
,

at p. 452.

[90]

Here,
    the trial judge had the perspective of seeing the evidence evolve over the
    course of this lengthy trial and he had observed the jury as they listened to
    and followed the evidence. He was aware not only of what evidence the jury had
    heard, but what they had not heard. He was fully aware, for example, that the
    jury had not heard any evidence from Murray that the appellant had confessed to
    him and they had never seen or heard his statement to the police. At the end of
    the day, he not only struck Murrays evidence, he told the jury in no uncertain
    terms they were to ignore it.

[91]

I
    am unable to find that the trial judge erred in the exercise of his discretion
    in dismissing the motion for a mistrial and I would reject this ground of
    appeal.

(d) First Degree Murder

[92]

The
    appellant asserts that the verdict of first degree murder was unreasonable and
    should be set aside pursuant to s. 686(1)(a)(i) of the
Criminal Code
.
    The application of that provision requires this court to determine whether the
    verdict is one that a properly instructed jury acting judicially, could
    reasonably have rendered:
R. v. Biniaris
, 2000 SCC 15, [2000] 1
    S.C.R. 381, at para. 36.

[93]

The
    jury was properly instructed that the only way in which they could arrive at a
    verdict of first degree murder was under s. 231(5)(e) of the
Criminal Code
,
    which provides:

231.
(1) Murder is
    first degree murder or second degree murder.

(2) Murder is first degree murder when it is
    planned and deliberate.



(5)  Irrespective of whether a murder is planned
    and deliberate on the part of any person, murder is first degree murder in
    respect of a person when the death is caused by that person while committing or
    attempting to commit an offence under one of the following sections:



(
e
) section
    279 (kidnapping and forcible confinement)

[94]

In
R. v. Harbottle
, [1993] 3 S.C.R. 306, the Supreme Court stated, at p.
    325, that the Crown must establish the following requirements of s. 231(5)(e)
    [then s. 214(5)] beyond a reasonable doubt:

(1) the accused was guilty of the underlying crime of
    domination or of attempting to commit that crime;

(2) the accused was guilty of the murder of the victim;

(3) the accused participated in the murder in such a manner
    that he was a substantial cause of the death of the victim;

(4) there was no intervening act of another which resulted in
    the accused no longer being substantially connected to the death of the victim;
    and

(5) the crimes of domination and murder were part of the same
    transaction; that is to say, the death was caused while committing the offence
    of domination as part of the same series of events.

[95]

To
    unlawfully confine someone is to restrain or direct them contrary to their
    wishes:
R. v. Pritchard
, 2008 SCC 59, [2008] 3 S.C.R. 195, at para.
    24.

[96]

In
R. v. Kimberley
(2001), 56 O.R. (3d) 18 (C.A.), this court observed,
    at para. 108, that a confinement which is inherent in the very act of killing
    could not be relied upon to impose liability under s. 231(5)(e). It explained
    that:

This is not because there is no confinement, but because s.
    231(5)(e) requires two discrete criminal acts, a killing that amounts to murder
    and a confinement that is unlawful. It is the occurrence of the two criminal
    acts in the course of the same transaction or series of events that justifies
    the added punishment imposed for first-degree murder.

[97]

In
Harbottle
, the Supreme Court observed, at p. 323, that s. 231(5) is a
    sentencing provision, and the gravity of the crime and the severity of the
    sentence both indicate that a
substantial and high
degree of blameworthiness, above and beyond that of murder, must be established
    in order to convict an accused of first degree murder (emphasis in original).
    In
Kimberley
, this court held at para. 104:

The organizing principle of s. 231(5) is the recognition that murders
    committed in the course of the unlawful domination of the victim are
    particularly blameworthy, and those who commit such murders are deserving of
    the greater punishment imposed for first-degree murder.

[98]

The appellants submissions, as they were developed before
    us, rest on two propositions. First, he submits that for s. 231(5)(e) to apply,
    the confinement must be distinct from the killing and not consumed in the
    killing. The confinement and the killing must constitute distinct criminal
    acts:
Pritchard
, at para. 27
;
Kimberley
, at para. 108
.
    Here, he submits that the confinement was inherent in the killing.

[99]

Second, he raises the issue of whether the victims
death
was
caused
while committing unlawful confinement or whether the unlawful
    confinement was subsequent to the causing of death. He says the victims death
    was caused by the first shot, which penetrated the victims arm and his heart,
    mortally wounding him. The confinement, he says, occurred after this took
    place.

[100]

I would not give
    effect to this ground of appeal. I will address the causation argument first.

[101]

Whether the
    first bullet was a sufficient cause of the victims death was unimportant in
    this case for three reasons. First, s. 226 of the
Criminal Code
makes
    clear that accelerating death is still murder. In this case, regardless of
    whether the victim was mortally wounded by the first shot, he was still alive when
    he was shot a second time while confined in the garage. Therefore, it was open
    to the jury to conclude that the second shots acceleration of death was an act
    of killing in itself, which occurred while the appellant was confining the
    victim. In
R. v. Munro
(1983), 8 C.C.C. (3d) 260 (Ont. C.A.), at pp. 288-9,
    this court said it was an elementary principle of the law of homicide that
    one who shortens the life of a person suffering from a mortal injury  has
    caused the death of that person.

[102]

Second, there is nothing in the jurisprudence that states
    the predicate offence under s. 231(5) must precede the mortal wound. In fact,
    in the context of sexual assault under s. 231(5)(b), the jurisprudence of this
    court and others supports the proposition that it does not matter whether the
    sexual assault occurs before or after the death of the victim, provided the
    sexual assault and murder are part of one continuous sequence of events forming
    a single transaction:
R. v. Westergard
(2004), 70 O.R. (3d) 382
    (C.A.), at paras. 31-35, leave to S.C.C. refused, [2004] S.C.C.A. No. 521;
R.
    v. Ganton
(1992), 77 C.C.C. (3d) 259 (Sask. C.A.). It is not necessary in
    this appeal to decide whether that same proposition holds true for unlawful
    confinement under s. 231(5)(e). However, when applying s. 231(5) for any
    predicate offence, courts should avoid a formalistic and technical analysis of
    the precise sequence of the killing and the predicate offence where they are
    closely intertwined. What matters is that the act of killing and the predicate
    offence, while distinct offences, remain part of the same transaction:
R.
    v. Paré
, [1987] 2 S.C.R. 618, at pp. 631-633.

[103]

Third, s. 231(5) is concerned with identifying the degree of
    blameworthiness required to ground a conviction for first degree murder. Apart
    from the obvious point that the appellant could have had no way of knowing that
    he had fatally wounded the victim, the confinement and shooting inside the
    garage removed any possibility of getting assistance for the victim. This is a
    case like
R. v. Simon
(2001), 154 C.C.C. (3d) 562 (Que. C.A.), in
    which it can be said that, even if the wound to the chest was the ultimate
    cause of death, the subsequent restraint of the victim and the direct shot to
    his chest prevented any possibility of medical intervention which might have
    saved his life, however remote that possibility may have been.

[104]

I will now
    consider the appellants submission concerning whether the killing and
    confinement were distinct. In my view, it was open to the jury to conclude they
    were.

[105]

The trial judge
    properly instructed the jury on the law relating to s. 231(5)(e)

and
    carefully reviewed the evidence bearing on the issues the jury was required to
    resolve in order to convict under that provision. There was eyewitness and
    forensic evidence upon which the jury could have concluded the appellant caused
    the victims death and he unlawfully confined the victim during the same series
    of events as the shooting. This included evidence from which the jury could
    have concluded that, after the appellant shot himself and the victim during the
    struggle in the driveway, the victim was forcibly removed from that location to
    the inside of the garage where he was held, on his knees, calling for help,
    until he was again shot, this time point blank in the chest. It was open to the
    jury to find that in forcibly removing the victim from the driveway to the
    garage and restraining him there, the appellant committed the crime of unlawful
    confinement.

[106]

It was also open to the jury to find that while the
    confinement occurred as part of the same series of events as the murder, it was
    not inherent in the killing and that the appellant could have been convicted of
    the separate offences of murder and unlawful confinement.

[107]

This is not a case, such as that described by Binnie J. in
Pritchard
, at para. 27, in which the act of confinement and the act of
    killing are one and the same. Here, it was open to the jury to find that the murder
    was committed in the course of an unlawful confinement and that the murder and
    the confinement were distinct crimes that took place during an uninterrupted
    series of events.

[108]

In conclusion, there was evidence from which the jury could
    have concluded that the murder of Bogdan Spolski was an execution, carried out
    while he was being restrained by the appellant against his will. As such, it
    has the requisite degree of blameworthiness to attract the punishment for first
    degree murder.

[109]

Based on the foregoing discussion, I conclude the verdict
    was not unreasonable and it was open to the jury to convict the appellant of
    first degree murder.

Disposition

[110]

For these
    reasons, I would dismiss the appeal.

G.R. Strathy C.J.O.

I agree K. Feldman
    J.A.

I agree David Watt
    J.A.

Released: December 16, 2014





[1]
Preddie and Watson both said the appellant described the shooting as having
    occurred in the course of a car theft. Dhillon did not mention this detail. Their
    accounts of the confession were otherwise consistent in substance.



[2]
Although the trial judge used the term ultimate reliability, it is clear from
    the context that he was speaking of threshold reliability.


